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2009 DIGILAW 1468 (PNJ)

Pargat Singh v. Zila Parishad

2009-08-21

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The writ petition challenges the order passed by the Appellate Authority under the Payment of Gratuity Act at the instance of an employee who had retired from service from Zila Parishad, Amritsar. By the impugned order, the Appellate Authority had set aside the order passed by the Controlling authority which allowed the claim of the employee for an additional amount of Rs. 98,289.50 over and above 1 lac which has already been disbursed to him as gratuity. The basis of the claim for the workman was that the Government of Punjab, Department of Rural Development, Punjab allowed for grant of revised pay scales to the employees of Panchayat Samiti on the basis of recommendations of the 4th Pay Commission. The Financial Departments notification dated 16.1.1998 approving the recommendations of the Pay Commission was allowed to be adopted for the employees of the Panchayat Samiti/Zila Parishad in the Punjab State. This notification which was adopted for Zila Parishad according to the employee enabled him to obtain the recommendation as an interim measure to the Government employees as regards dearness allowances and gratuity. By circular dated 13.12.1996 issued by the Government of Punjab the Government had accepted the interim recommendation of the 4th Pay Commission to increase the retirement gratuity/death gratuity raising the maximum limit of gratuity from 1 lac to Rs. 2.5 lacs w.e.f. 1.4.1995. According to the employee, he had been superannuated on 31.5.1997 and he was therefore, entitled to the additional amount which was applied as per the interim award of 4th Pay Commission. 2. The contention of the workman was that as per Section 155 of the Punjab Panchayati Raj Act, an employee of Panchayat Samiti was entitled to obtain pension or gratuity on terms which shall not be more than those prescribed for persons for service of the State Government. The employee therefore, claimed that at all times, the gratuity payable was on parity with what was extended to the civil servants of the Punjab Government and when the interim award provided for an enhancement of the maximum amount of Rs. 2.5 lacs, that benefit should have been availed to the employee as a person who as an employee of the Zila Parishad. This claim of the employee was not acceded to on a demand that necessitated him to apply to the Controlling Authority under the Payment of Gratuity Act. 2.5 lacs, that benefit should have been availed to the employee as a person who as an employee of the Zila Parishad. This claim of the employee was not acceded to on a demand that necessitated him to apply to the Controlling Authority under the Payment of Gratuity Act. The case had been instituted against the Zila Parishad represented through Administrator-cum-Dy. Commissioner, Amritsar Deputy Commissioner was the Chief Executive Officer of the Zila Parishad as per Section 195 of the Panchyati Raj Act. The Controlling Authority upheld the contention of the employee and ordered the payment of Rs. 98,289.50 with 10% simple interest w.e.f. 31.05.1997 till the date of payment of entire amount of 1,98,289.50. 3. An appeal had been filed by the Zila Parishad through its Deputy Chief Executive Officer, Zila Parishad, Amritsar challenging the order of the Controlling Authority. The appeal was allowed when the Appellate Authority had ruled that the employees of the Zila Parishad cannot obtain gratuity on similar terms as the government servants. The employees were not even entitled to pension which was available for the Civil servants of the Punjab Government and therefore, they cannot demand parity with government servants as regards gratuity. The other contention was that the 4th Pay Commissions recommendations were applied to the employees of Zila Parishad by departments notification that allowed for gratuity to a maximum of 3.5 lacs only to persons who had been superannuated on 24.09.1997. Since the employee had been superannuated earlier namely on 31.05.1997, the benefit of the 4th Pay Commission could not be extended to the employee. This order of the Appellate Authority allowing the appeal is subject of challenge before this Court. 4. The objections from learned Senior counsel appearing on behalf of the workman is against the award on both technical as well as substantive grounds With reference to the maintain ability of the appeal on a procedural aspect, according to the learned counsel appearing for the employee, the appeal itself ought not to have been entertained since it was prosecuted by a person who was not competent to represent the Zila Parishad. Zila Parishad was a Corporate body having perpetual succession as per Section 161 of the Punjab Panchayati Raj Act, 1994 . Zila Parishad was a Corporate body having perpetual succession as per Section 161 of the Punjab Panchayati Raj Act, 1994 . A body corporate shall be represented only by a person duly authorized by the Board and there was nothing on record to show that the Deputy Chief Executive Officer, Amritsar had been granted any authority to prefer the appeal. Learned counsel brings to my attention the provisions under Section 195 to 197 of the Act which details the devolution of powers amongst the officers for carrying out the functions on behalf of the Zila Parishad. Section 195 of the Act constitutes the Additional Deputy Commissioner in every District to be the ex officio Chief Executive Officer of the Zila Parishad. Section 197(3) states that the Deputy Chief Executive Officer shall assist the Chief Executive Officer in the performance of his duties. Referring to these provisions the attempt of the learned senior counsel is that the Chief Executive Officer is the Additional Deputy Commissioner and the Deputy Chief Executive Officer shall only be a person who could assist the Chief Executive Officer and does not himself have the power to represent the Zila Parishad in his own name unless there is specific authority granting to him. Learned counsel would rely on the decisions in Punjab Agricultural University v. Walia Brothers 1969 PLR 257 and Punjab University through its Registrar v. Tilak Raj Dogra reported in 1991 1 PLR 511, that related to prosecution of legal proceedings by body corporate and the right of representation by the Chief Functionaries of the University. In the former judgment the learned Judge of this Honble Court held that a Vice Chancellor cannot exercise the right to appeal of institution of suit or appeal if he had not been authorized by the Board of Management. Same was the effect of the Division Bench of this Honble Court in latter judgment which dealt with an appeal filed by the Registrar on behalf of the University. The Honble Bench held that the appeal could be filed only through a resolution passed by the Senate and if there had been no resolution authorizing the Registrar to prefer the appeal, it cannot be deemed as properly laid. 5. The Honble Bench held that the appeal could be filed only through a resolution passed by the Senate and if there had been no resolution authorizing the Registrar to prefer the appeal, it cannot be deemed as properly laid. 5. Though, I requested the learned counsel for the respondent to how the Deputy Chief Executive Officer himself presented the appeal, the learned counsel would only contend that it was the Deputy Chief Executive Officer who was acquainted with all facts and he had been taking steps even before the Controlling Authority to contest the application. He points out to the objections filed in the application filed for condonation of delay where the reply to the application has been verified by the Deputy Chief Executive Officer. This in my view will not be sufficient to explain the lack of authority of a person to prosecute and appeal against an order which was held against the Zila Parishad. Nothing has been brought on record despite specific objections raised even in the averments in the writ petition that the person who filed the appeal was not competent to do so. The mere fact that a lesser Officer than the Chief Executive of the Zila Parishad filed the objections or verified to pleadings before the Controlling Authority will not clothe him with right to present the appeal. Learned counsel appearing for the respondents refers to the decision of the Honble Supreme Court in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another 2006 (1) RCR 18 that held that a verification in the pleadings or signature in vakalatnama that had not been filed by a person competent to do so shall not have a bearing to the merits themselves and Court could give opportunity to rectify such defect. In this case, I am afraid, there could be no opportunity, where an adverse order passed against the Zila Parishad could be decided to be assailed only be a person who was competent to represent the Zila Parishad of and it has not been shown that the Deputy Chief Executive Officer was authorized on to act on behalf of the Zila Parishad. It is not merely technical flaw. It is serious error and it is case of absolute lack of authority by a person who could not have represented the Zila Parishad to prefer an appeal. It is not merely technical flaw. It is serious error and it is case of absolute lack of authority by a person who could not have represented the Zila Parishad to prefer an appeal. I, therefore, uphold the contention of the claim on behalf of the employee that the appeal had been preferred before and Appellate Authority by a person who was not competent to prefer the appeal and the appeal ought to have been therefore, dismissed in limine without adverting even to the merits of the case. 6. However, I do not want to leave the case without even adverting to the merits for if there are merits it should at least be possible for the authority to set aright the serious mistake that had crept by preferring an appeal, by a person who had not the competence to file the appeal. As regards the entitlement of the employee-petitioner for the recommendations of interim award of the 4th Pay Commission allowing for an enhancement to maximum gratuity payable for Rs. 1 lac to 2.5 lacs, the contention on behalf of the Zila Parishad was that if the workman was making claim as per Punjab Service Rule, there was no remedy before the Controlling Authority under the Payment of Gratuity Act. It was a wrong forum before which the employee was seeking for a relief. According to him, if the decision to adopt the departments notification made on 16.01.1998 to the Zila Parishad only after the notification was made in the year 1998, it should be taken that earlier circular which had been issued by the Government approving the interim recommendations of 4th Pay Commission could not be applied for any person in the Zila Parishad. The first circular dated 13.12.1996 applied the benefit of the maximum limit of gratuity only to the civil servants to whom the Punjab Civil Service Rules were applicable. The employees of the Zila Parishad were not covered by the Punjab Civil Service Rules and therefore the employees would not be entitled to the benefits of the interim award in the 4th Pay Commission. This argument by the learned counsel appearing for the respondent does not fully answer the point raised by the learned Senior counsel for the petitioner. The employees of the Zila Parishad were not covered by the Punjab Civil Service Rules and therefore the employees would not be entitled to the benefits of the interim award in the 4th Pay Commission. This argument by the learned counsel appearing for the respondent does not fully answer the point raised by the learned Senior counsel for the petitioner. According to him, the interim award of the recommendation of the 4th Pay Commission merged with final recommendations which was decided to be accepted by the finance departments notification dated 16.01.1998 and since had directed that the employees of Panchayat Samiti and Zila Parishad could also be entitled to the benefits, it could only be taken that such benefit would apply to also interim recommendations which have been made earlier. The constructions placed by the Senior counsel in my view accords with an obvious logic in the flow of events that when an employee of Zila Parishad would become entitled of gratuity on par with Punjab Civil Servants by virtue of the final recommendations that provided for maximum of Rs. 3.5 lacs to persons who were superannuated on 24.09.1997, it cannot be denied to the very same class of persons in the Zila Parishad who had been superannuated earlier and who were to take not up to the maximum of 3.5 lacs but to lesser sum of Rs. 2.5 lacs which was assured by the interim award. This interpretation would also be most just for it would be otherwise grossly discriminatory that the persons in the Zila Parishad who were found entitled to the maximum gratuity of Rs. 3.5 lacs from 24.09.1997 by applying the benefits which were available to the Civil Service of Punjab Government should be denied such a right only by the fact that by the circumstances the employee retired earlier as in this case, earlier on 31.05.1997. He does not get the same amount of Rs. 3.5 lacs but he gets an entitlement to be considered up to a maximum of Rs. 2.5 lacs which the interim recommendations of the 4th Pay Commission allowed. The same result would not operate if only the Government did not extend the benefit of 4th Pay Commission to the employees of the Parishad. It chose to do so when the final recommendations came, and a fortiorari, it should apply to the interim award also. 2.5 lacs which the interim recommendations of the 4th Pay Commission allowed. The same result would not operate if only the Government did not extend the benefit of 4th Pay Commission to the employees of the Parishad. It chose to do so when the final recommendations came, and a fortiorari, it should apply to the interim award also. The decision of the Appellate Authority even it were to be considered that appeal could have been entertained at the instance of the Deputy Chief Executive Officer, it was wrong in setting aside the order of the Controlling Authority. 7. The learned Senior counsel also raised an objection to the alleged default in not depositing the amount as awarded by the competent Authority, as mandated by Section 7(7) proviso of Payment of Gratuity Act. The learned counsel for the respondent points out that the amount deposited was larger than the sum awarded. I have verified the amount that was deposited was more than what was mandated and hence hold that is no substance in such a contention by the petitioner. 8. The order of the Controlling Authority is restored and the order impugned in the writ petition is set aside. The writ petition is set aside. The writ petition is allowed. There shall, however, be no directions as to costs. Petition allowed.