Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 129 (RAJ)

Dhan Devi Mehata v. Rajasthan Non

2011-01-18

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - Bone of contention between the parties in this matter is whether the petitioner would be entitled to gratuity as per the law applicable on 6.3.1994 when she attained the age of 58 years which is the normal age of superannuation or on 30.6.1994, the date upto which she was continued in the employment of respondent no. 2-educational institution on extended period of service and also whether the petitioner is entitled to third selection scale on completion of 27 years of service, which the Tribunal by order dated 22.10.1997 (Annexure-5) has declined. 2. Shri C.L. Saini, learned counsel for the petitioner however pressed the writ petition only on the first prayer i.e. regarding payment of gratuity as per the law applicable on 30.6.1994. His contention is that Tribunal has erred in law by holding that the extended period of service cannot be taken as part of service for the purpose of superannuation and on that basis payment of gratuity cannot be made to the petitioner. It is contended that while this ceiling of the gratuity amount on 6.3.1994 when the petitioner attained the age of superannuation was Rs. 50,000/- but by amendment in the Payment of Gratuity Act, this ceiling was increased to Rs. 1,00,000/-. Petitioner in that event would be entitled to Rs. 1,00,000/- as gratuity as per the Rule 45 read with Rule 82 of the Rajasthan Non-Government Educational Institutions Rules, 1993. Learned counsel in support of his arguments cited the division bench judgement of this Court in Managing Committee, Panabai Ramnath Poddar Senior Secondary School v. State & Ors., D.B. Special Appeal (W) No. 609/02, decided on 16.4.09 and division bench judgment of Punjab and Haryana High Court in M/s. Darshan Engineering Works v. The Controlling Authority & Ors., 1983 L.I.C. 1451 . 3. Per contra, Shri R.K. Mathur, learned counsel for the respondents opposed the writ petition and submitted that petitioner may not be entitled to any benefit beyond the actual date of her retirement because she in that period continued on the basis of reemployment and not original employment. The Tribunal has therefore not committed any error of law in rejecting the prayer of the petitioner. In support of this argument, learned counsel cited the judgement of Supreme Court in Ramswaroop Masawan v. Municipal Council & Anr., (1998) 6 SCC 338 . The Tribunal has therefore not committed any error of law in rejecting the prayer of the petitioner. In support of this argument, learned counsel cited the judgement of Supreme Court in Ramswaroop Masawan v. Municipal Council & Anr., (1998) 6 SCC 338 . It is contended that once the petitioner attained the age of superannuation and thereby retired on 6.3.1994, she would be according to Section 4 of the Payment of Gratuity Act and sub-rule (2) of Rule 45 of the Rajasthan Non-Government Educational Institutions Rules, 1993 is entitled to only those benefits which were available to her on the date of her superannuation and not when she was discontinued after reemployment. Learned counsel cited the judgement of Supreme Court in State of Kerala & Anr. v. P.V. Neelakandan Nair & Ors., 2005 (4) Supreme 719 to argue that in that judgment the Supreme Court held that teachers even though superannuated during the academic year to be continued in service by virtue of Rule 62 of Kerala Education Rules, 1959 till last date of the month in which the academic year ended i.e. 1.3.1997, would be entitled to benefit of pay revision coming into effect during such extended period. 4. I have given my anxious consideration to the rival submissions and perused the material on record. 5. Rule 82 of the Rules of 1993 clearly provides that employees of the aided educational institutions shall be entitled to gratuity as admissible under Payment of Gratuity Act, 1972 as amended from time to time. Section 4 of the Payment of Gratuity Act inter alia provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than 5 years; (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease; Provided that the completion of continuous service of 5 years shall not be necessary where the termination of the employment of any employee is due to death or disablement. 6. Termination of employment as mentioned in sub-section (1) of Section 4 is not synonymous with termination of service rather it refers to a situation of service when the master servant relationship gets snapped. 6. Termination of employment as mentioned in sub-section (1) of Section 4 is not synonymous with termination of service rather it refers to a situation of service when the master servant relationship gets snapped. This is why in three classes of sub-rule (1), whole range of wide situations have been covered i.e. superannuation, retirement or resignation, death or disablement due to accident or disease. In other words, whatever may be the reason of termination of such service, the effect would be that the employee would no longer be continuous in the employment of the employer. It is upto that point of time that the payment of gratuity is admissible to him. 7. This point fell for consideration before division bench in Managing Committee, supra wherein the effect of Rule 45 of the Rules of 1993 was considered by this Court and It was held that since according to said Rule, extension of service could be given to a Teacher and the word `reemployment' has not been mentioned therein, the employee has to be treated In continuous service till 4.7:1997 when finally he stood retired i.e. after completion of period of reemployment and on that date, the Rules of 1993 had already come into force with effect form 1.4.1993, therefore, the said employee was held entitled to gratuity. 8. The division bench judgment of this Court in Managing Committee, supra was rendered in a slightly different context, but nevertheless analogy on which clause (1) of Rule 45 was applied must be held applicable to the present case too, but learned counsel for respondents has sought to distinguish the aforesaid judgment by citing sub-clause (ii) and argued that according to this provision,' teachers who attain the age of superannuation after 31st December, may be allowed extension by the Government upto the end of the academic session or 30th June whichever is earlier. 9. In my view, however Rule 45 has to be appreciated in its entirety and its one sub-clause cannot be so read so as to frustrate the meaning and effect of another sub- clause and in this manner a purposive interpretation has to be given to the entire set of Rules. Sub-clause (i) of Rule 45 inter alia has provided that the age of superannuation of teachers and others except class-IV shall be the last date of the month in which they attain the age of 58 years. Sub-clause (i) of Rule 45 inter alia has provided that the age of superannuation of teachers and others except class-IV shall be the last date of the month in which they attain the age of 58 years. In special circumstances, the Government may waive this condition and allow extension in service for a period not exceeding four years for such college teachers, who are engaged in post-graduate teaching or research work. Any other employee of the institution may also be allowed extension in service upto the age of 60 years by the State Government. The extension thus could be granted for a period not exceeding four years if the employee happens to be a college teacher and in other cases upto age of 60 years. Sub-clause (ii) merely further clarifies this position by providing that teachers who attain the age of superannuation after 31st December may be allowed extension by the Government upto the end of the academic session or 30th June whichever is earlier, which was the situation in the cited judgement of Supreme Court in P.V. Neelakandan Nair, supra. In that case, even though the employee concerned had attained the age of superannuation during academic year, but was continued in service by virtue of a Rule similar to Rule 45, supra. He was held entitled to benefit of pay revision during such extended period. In the present case, the case of petitioner stands on much better footing because here was an amendment by the Parliament in the Payment of Gratuity Act thereby raising the ceiling of Rs. 50,000/- of gratuity to Rs. 1,00,000/-. The petitioner was therefore held entitled to gratuity payable as on the date on which she has ceased to be in the employment of the respondent i.e.30.6.1994. 10. In order to appreciate the true meaning and content of Section 4 of the Payment of Gratuity Act, it will be apposite to reproduce provisions of Section 4 in extenso hereunder: "Payment of gratuity. 10. In order to appreciate the true meaning and content of Section 4 of the Payment of Gratuity Act, it will be apposite to reproduce provisions of Section 4 in extenso hereunder: "Payment of gratuity. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs.". 11. In M/s. Darshan Engineering Works, supra concerned employee on his resigantion claimed gratuity as per the provisions of Section 4(1) (b) of Payment of Gratuity Act, but employer disowned the liability to pay gratuity on the ground that he had already attained the age of 58 years before Act came into force. It was held that according to said provision, the employee shall be entitled to gratuity on retirement or resignation because sub-clause (b) of sub-section (1) of Section 4 was held to be independent of sub-section (a) thereof. It is, therefore, clear that an employee would not be entitled to gratuity in terms of sub-section (1) on his superannuation if he has ceased to be in employment thereafter. If the employee is reappointed or continued in the employment after the date of his superannuation, he would then be entitled to gratuity when he would cease to be in the employment of the employer. 12. The judgment cited by the respondents in Ramswaroop Masawan, supra can have no application to the facts of the present case where the simple issue was whether the employee, who retired and then was reemployed would be entitled to retiral benefit upto the age of superannuation or also for the extended period. That prayer of the employee was declined by the Court. Such Is not the situation in the present case. 13. That prayer of the employee was declined by the Court. Such Is not the situation in the present case. 13. In view of above, the judgment and order passed by learned Tribunal dated 22.10.1997 to the extent it denies the benefit of enhanced amount of gratuity, cannot be sustained in law, which is accordingly set aside. Petitioner is entitled to enhanced gratuity together with interest at the rate prescribed by the provisions of the Act or the Rules framed thereunder to the extent of extended amount of gratuity, which shall be paid to her by respondent no.1 institution within a period of two months form the date copy of this order is produced before them.Writ Petition Allowed - Order Denying Enhanced Gratuity. *******