Judgment :- 1. This petition has been filed by the petitioners to issue a writ of Certiorari, calling for the records culminated in the order dated 02.03.2005 made in P.G.A.No.55 of 2004 on the file of the second respondent herein and quash the same. 2. The case of the petitioner as given in the affidavit filed in support of the writ petition is as follows: The first respondent/employee was working as an Assistant Manager (Bank Inspector) in the Acharapakkam Branch. For certain misconduct committed by him disciplinary proceedings were initiated and after holding a Domestic Enquiry he was dismissed from service on 16.02.1982. After attaining the age of superannuation, the petitioner raised an Industrial Dispute in I.D.No.1991/1992 on the file of the Second Additional Labour Court, which, by award dated 30.08.1995 held that the non-employment of the first respondent was improper and consequently ordered reinstatement with full back wages and the other consequential benefits. Aggrieved by the award of the Labour Court, the petitioner filed W.P.No.6246 of 1996 before this Court and stay of the operation of the award was obtained. Thereafter, the first respondent filed a Claim Petition in C.P.No.420 of 1996requiring payment of the claim enurable to him for the period from the date of dismissal till the date of attainment of superannuation. The Labour Court granted computation as sought for by the employee by an order dated 22.07.1999, whereby the first respondent was found eligible by the management for Rs.2,72,328/-. As against this order also, writ petition was filed in W.P.No.5917 of 2000 and an interim stay was obtained. Only under these circumstances, when the first respondent approached the management for settlement of money, with reference to the order challenged in both of the above writ petitions, there was a comprehensive settlement arrived at between the petitioner and the first respondent/employee, which was reduced to writing as contemplated under Section 18(1) of the Industrial Disputes Act by way of a settlement dated 27.11.2000. It was mutually agreed that the first respondent would not raise any further claims with the Bank once the present settlement was implemented. Consequent upon the settlement arrived at between the parties, all the service benefits to which the first respondent was entitled to by virtue of his services under the petitioners Bank were determined at a sum of Rs.1,97,982/-. It was mutually agreed that the first respondent would not raise any further claims with the Bank once the present settlement was implemented. Consequent upon the settlement arrived at between the parties, all the service benefits to which the first respondent was entitled to by virtue of his services under the petitioners Bank were determined at a sum of Rs.1,97,982/-. It was agreed that this amount would be towards the full and final settlement of the claims with reference to the service benefits of the first respondent with the petitioner Bank. As per the settlement, the petitioner bank withdrew both the above writ petitions also. 3. Further, it is stated by the petitioner management that prior to the one time settlement arrived at between the petitioner bank and the first respondent on 27.11.2000, the first respondent employee had filed an application before the Payment of Gratuity Authority for payment of gratuity payable to him in P.G. Case No.12/1996. It is a matter of fact that while the one time settlement terms were negotiated between the bank and the first respondent/employee, it was understood to include the said gratuity also and the first respondent employee was required to withdraw the said application, which was also done by the first respondent on 12.04.2001, whereupon only the terms of settlement dated 27.11.2000 were implemented and payment under the 18(1) settlement was made to the first respondent by the petitioner bank herein. But, the first respondent employee contending that the terms of settlement would not include the gratuity claim, filed another application before the Controlling Authority in P.G. Case No.52 of 2003 for determination of the gratuity amount. Though the said application was resisted by the petitioner bank about the eligibility of the first respondent to claim the gratuity in the light of the terms of the 18(1) settlement dated 27.11.2000, the Controlling Authority passed an order on 05.02.2004 determined the gratuity amount of the first respondent at Rs.58,877.50/- based on his 30 years service i.e., from 20.07.1960 to 30.06.1990 and the first respondent salary (Basic pay + D.A.) 4. Aggrieved by the order, the petitioner bank filed an appeal before the second respondent in P.G. Appeal No.55 of 2004. However, the Appellate Authority dismissed the appeal by order dated 02.03.2005 holding no substantial ground was raised in the appeal warranting interference. Aggrieved by the order, the petitioner bank filed an appeal before the second respondent in P.G. Appeal No.55 of 2004. However, the Appellate Authority dismissed the appeal by order dated 02.03.2005 holding no substantial ground was raised in the appeal warranting interference. Challenging the same, the above writ petition has been filed for the aforesaid prayer. 5. On 04.08.2005, an interim stay was granted by this Court on the submissions made on the side of the petitioner that the entire awarded amount has been deposited. Subsequently by order dated 23.02.2007, the order of interim stay granted was made absolute and the petition filed by the first respondent to vacate the stay was dismissed. 6. The case of the first respondent/employee is as follows: After the dismissal of the first respondent from service, on 16.02.1982, he raised an Industrial Dispute in I.D.No.1991/1992. The Labour Court passed an award dated 30.08.1995 that the first respondent was entitled to full back wages and all other consequential benefits as he had attained the age of superannuatiion on 30.06.1990. Against the said award the management filed a writ petition in W.P.No.6246 of 1996 and the award was stayed. Thereafter, he filed C.P.No.420 of 1996 before the Labour Court, Chennai for computing the money value payable to him and the same was allowed on 22.07.1999. The Labour Court computed the money value at Rs.2,72,328.10/- payable to the first respondent. Thereafter the first respondent filed an application under Section 33(c)(2) of the Industrial Disputes Act, 1947 for gratuity, as the gratuity payable was not included in the Computation Application as it would be determined only by the authority constituted under The Payment of Gratuity Act. He filed P.G.I.A.No.12/1996 for payment of gratuity to him since he had attained the age of superannuation on 30.06.1990. Against the award dated 22.07.1999 passed by the Principal Labour Court, in C.P.No.420/1996, the management had filed a writ petition in W.P.No.5917 of 2000 and obtained stay of the award. Thereafter, the management came forward for a settlement in respect of the dispute in connection with the computation of money value in C.P.No.420/1996. Accordingly a settlement was arrived at between the Bank and the first respondent. In view of the settlement arrived at between the parties, two writ petitions filed by the management were withdrawn on 24.07.2001. Thereafter, the management came forward for a settlement in respect of the dispute in connection with the computation of money value in C.P.No.420/1996. Accordingly a settlement was arrived at between the Bank and the first respondent. In view of the settlement arrived at between the parties, two writ petitions filed by the management were withdrawn on 24.07.2001. In the meantime, the first respondent was asked to withdraw the P.G.I.A.No.12/1996, promising him to pay the gratuity amount. Though the said application was withdrawn by the first respondent on 12.04.2001 as directed by the management, the management did not pay the gratuity amount payable to the first respondent as promised. Representations given by the first respondent fell into deaf ears. Therefore, he again filed petition in P.G.I.A.No.52/2003 before the authority concerned for payment of gratuity and the same was considered and an award was passed on 05.02.2004. The appeal filed against that by the management in P.G.I.A.No.55/2004 was dismissed on 02.03.2005 and hence the above writ petition was filed by the management. 7. It is the specific case of the first respondent that in terms of the settlement dated 27.11.2000 and the subsequent award passed there was no reference to gratuity at all. The gratuity has to be paid under Rule 9 of the Tamil Nadu Pension Gratuity Rules 1973 and signatures could have been obtained under the requisite forms to be forwarded to the authority constituted under the Act. The first respondent was not provided with a copy of the settlement nor the management chose to file the same before the Controlling Authority under the Payment of Gratuity Act. Therefore the settlement effected cannot be treated as a bar for his claim. Further, the gratuity was not included in the Computation Application in C.P.No.420 of 1996 and the said fact has also been admitted by the petitioner management. Under Rule 9 of the Tamil Nadu Pension Gratuity Rules, 1973, the payment of gratuity must be intimated to the Controlling Authority of the area. But, in the instant case, no such intimation has been furnished to the Controlling Authority. No evidence in this regard has been filed by the petitioner management either before the authority or before the Appellate Authority. Therefore, the claim made for gratuity by the first respondent cannot be rejected on the ground that it is barred under the terms of the Settlement dated 27.11.2000. No evidence in this regard has been filed by the petitioner management either before the authority or before the Appellate Authority. Therefore, the claim made for gratuity by the first respondent cannot be rejected on the ground that it is barred under the terms of the Settlement dated 27.11.2000. Hence he prayed for the dismissal of the writ petition. 8. I have heard the learned counsel appearing for the petitioner management and the learned senior counsel Mr.V.Prakash appearing for the first respondent employee. I have also gone through the documents available on record. 9. In reply to the contentions put forth by the learned counsel appearing for the management that the claim of payment of gratuity by the first respondent is barred in view of the terms of the settlement arrived at between the parties on 27.11.2000, the learned senior counsel appearing for the first respondent employee would submit that the settlement would confine only to the Industrial Disputes claim and the claim for back wages, etc. and thus it would cover the rights accrued prior to superannuation. But he adds that the rights to claim gratuity accrue after the superannuation and the same cannot denied by any means. He also refers to Section 14 of the Gratuity Act to reiterate that there is a bar for any private contract in respect of payment of gratuity. He refers to Section 14 of the Payment of Gratuity Act which reads as follows: "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." Thus, he adds that the right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract. Further he submits that there was no express or implied waiver of this statutory rights to claim payment of gratuity by the first respondent employee. 10. In this connection, the learned senior counsel relied on the following judgments in support of his submissions: 1. 2001 (3 ) CTC 677 (Rajamani, wife and Nominee of S.Rajagopalan (Since deceased) and 8 others vs. The Deputy Commissioner of Labour and the Appellate Authority under Payment of Gratuity Act, Tiruchirapalli and 2 others)and 2. 10. In this connection, the learned senior counsel relied on the following judgments in support of his submissions: 1. 2001 (3 ) CTC 677 (Rajamani, wife and Nominee of S.Rajagopalan (Since deceased) and 8 others vs. The Deputy Commissioner of Labour and the Appellate Authority under Payment of Gratuity Act, Tiruchirapalli and 2 others)and 2. 2010 (2) SCC 44 (Allahabad Bank and another vs. All India Allahabad Bank Retired Employees Association) 11. Per contra, the learned counsel appearing for the petitioner management in support of his contention that if the workman, who is entitled to receive the gratuity, willingly agrees to give up a portion of that amount, it cannot be said that the provisions of the Act are violated. She refers to the judgment of this Court reported in 2002 III LLJ 922 (Vaithyanathan and others vs. Deputy Commission of Labour, Thiruchirapalli and another), in support of her contentions. 12. I have considered the rival submissions carefully with regard to facts and citations. 13. In 2001 (3) CTC 677 (cited supra), a Division Bench of this Court held as follows: "5. Section 14 of the Act is most crucial for the purpose of the present case is concerned. It reads thus, "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act." This provision makes it abundantly clear that the Gratuity Act shall have the effect notwithstanding anything found inconsistent with this enactment either by way of instrument or by way of contract having effect by virtue of any enactment other than this Act. In other words, there is no scope for contracting out of the overriding Act of Gratuity Act. No instrument, contract, standing order, rule can have force over and above the provisions of the Gratuity Act. The Parliament has intended that every employee shall be provided with gratuity on his minimum required service and it has to be paid compulsorily by the employer and there cannot be any instrument or contract inconsistent with the provisions of Gratuity Act. 6. In the light of the above provisions of the Act, it is crystal clear that the employer has no other option except to pay the gratuity as accrued or payable under the Act. 6. In the light of the above provisions of the Act, it is crystal clear that the employer has no other option except to pay the gratuity as accrued or payable under the Act. There is no scope for any contract or instrument to take away that statutory right. The crucialquestion that arises for consideration in the above circumstances is whether the alleged letter or receipt given by the appellants to the management agreeing to receive a particular amount can be treated as full and final settlement of the claim of gratuity. 14. In 2010 (2) SCC 44 (cited supra), the Honble Supreme Court has held as follows: 17. Krishna Iyer, J in Som Prakash Rekhi Vs. Union of India stated the principle in his inimitable style that benignant provision must receive a benignant construction and, even if two interpretations are permissible, that which furthers the beneficial object should be preferred. It has been further observed: (SCC pp.483-84, para 66) "66......We live in a welfare State, in a socialist republic, under a Constitution with profound concern for the weaker classes including workers (Part IV). Welfare benefits such as pensions, payment of provident fund and gratuity are in fulfilment of the Directive Principles. The payment of gratuity or provident fund should not occasion any deduction from the pension as a set-off. Otherwise, the solemn statutory provisions ensuring provident fund and gratuity become illusory. Pensions are paid out of regard for past meritorious services. The root of gratuity and the foundation of provident fund are different. Each one is a salutary benefaction statutorily guaranteed independently of the other. Even assuming that by private treaty parties had otherwise agreed to deductions before the coming into force of these beneficial enactments they cannot now be deprivatory. It is precisely to guard against such mischief that the non obstante and overriding provisions are engrafted on these statutes." (emphasis supplied) 18. Interpreting the provisions of the said Act this Court in Sudhir Chandra Sarkar Vs. TISCO Ltd. observed that pension and gratuity coupled with contributory provident fund are well recognised retiral benefits governed by various statutes. These statutes are legislative responses to the developing notions of the fair and humane conditions of work, being the promise of Part IV of the Constitution. It was observed: (SCC p.380, para 15) "15........ TISCO Ltd. observed that pension and gratuity coupled with contributory provident fund are well recognised retiral benefits governed by various statutes. These statutes are legislative responses to the developing notions of the fair and humane conditions of work, being the promise of Part IV of the Constitution. It was observed: (SCC p.380, para 15) "15........ The fundamental principle underlying gratuity is that it is a retirement benefit for long service as a provision for old age. Demands of social security and social justice made it necessary to provide for payment of gratuity. On the enactment of Payment of Gratuity Act, 1972 a statutory liability was cast on the employer to pay gratuity. 19. Gratuity payable to an employee on the termination of his employment after rendering continuous service for not less than 5 years and on superannuation or retirement or resignation etc. being a statutory right cannot be taken away except in accordance with the provisions of the Act whereunder an exemption from such payment may be granted only by the appropriate Government under Section 5 of the Act which itself is a conditional power. No exemption could be granted by any Government unless it is established that the employees are in receipt of gratuity or pension benefits which are more favourable than the benefits conferred under the Act. 20. In Union of India Vs All India Services Pensioners Association and Another, this Court explained that there is always a distinction between the pension payable on retirement and the gratuity payable on retirement. "8.......While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement." (SCC p.586, para 8) 21. No decision of this Court which has taken a view contrary to the decisions referred to herein above has been brought to our notice. 22. In our considered opinion, pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. 22. In our considered opinion, pensionary benefits or the retirement benefits as the case may be whether governed by a Scheme or Rules may be a package consisting of payment of pension and as well as gratuity. Pensionary benefits may include payment of pension as well as gratuity. One does not exclude the other. Only in cases where the gratuity component in such pension schemes is in better terms in comparison to that of what an employee may get under the Payment of Gratuity Act the government may grant an exemption and relieve the employer from the statutory obligation of payment of gratuity. 23. In the result, we find merit in the submissions made by the learned senior counsel, Shri P.P. Rao appearing for the Association that pension and gratuity are separate retiral benefits and right to gratuity is a statutory right. 24. However, Shri Dhruv Mehta, learned counsel for the bank placed strong reliance on the decision rendered by this Court in DTC Retired Employees Association Vs. DTC, in support of his contention that the employees of the bank are not entitled to the twin benefits of payment of pension and as well as gratuity. In that case, Delhi Transport Corporation introduced the Pension Scheme for the first time on 27.11.1992, for its retired employees, as per which all employees of DTC retiring on or after 3.8.1981, were to be covered for the purpose of pensionary benefits. The existing employees at the relevant time and those who retired on or after 3.8.1981, were required to exercise their option for the Pension Scheme. The retired employees opting for the pension scheme were required to refund the employers share of provident fund received by them with interest thereon. Those employees, who joined the service on 27.11.1992, and thereafter, had no option but to be compulsorily covered under the Pension Scheme. 35. In the present case the real question that arises for our consideration is whether the employees having exercised their option to avail the benefits under the pension scheme are estopped from claiming the benefit under the provisions of the Act? 36. 35. In the present case the real question that arises for our consideration is whether the employees having exercised their option to avail the benefits under the pension scheme are estopped from claiming the benefit under the provisions of the Act? 36. The appellant being an establishment is under the statutory obligation to pay gratuity as provided for under Section 4 of the Act which is required to be read along with Section 14 of the Act which says that the provisions of the Act shall have effect notwithstanding anything inconsistent therein contained in any enactment or in any instrument or contract having effect by virtue of any enactment other than this Act. The provisions of the Act prevail over all other enactment or instrument or contract so far as the payment of gratuity is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract. 37. This Court in Hindustan Lever Vs. State of Maharashtra relying upon the decision of this Court in Purshottam H. Judye Vs. V.B. Potdar held that the word `instrument would include award made by the Industrial Tribunal. It is thus clear that notwithstanding the Desai and Shastry Awards and the subsequent settlements the members of the employees association are entitled to avail the benefit conferred upon them for payment of gratuity under the provisions of the Act. The employees cannot be deprived of their valuable statutory right conferred upon them to receive payment of gratuity. 38. There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation/retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act. In the circumstances we find no merit in the submission made by the learned counsel for the appellant in this regard. For the aforesaid reasons we find no merit in the appeal." 15. Thus, from the above it is very clear that there is no scope for contracting out and over riding of the Act. No instrument or contract, standing order, rule can have force over and above the provisions of the Gratuity Act. Therefore, any amount received under the settlement in question will not be a bar over the statutorily protected gratuity. Thus, from the above it is very clear that there is no scope for contracting out and over riding of the Act. No instrument or contract, standing order, rule can have force over and above the provisions of the Gratuity Act. Therefore, any amount received under the settlement in question will not be a bar over the statutorily protected gratuity. Further, gratuity is a statutory right and it cannot be denied to an employee and cannot by defeated by any instrument or contract. Hence the contention of the petitioner Management that under the settlement effected, the employee has received all the sums due and therefore, he is not entitled to get the gratuity, would not hold water and cannot be sustained both in law and on facts. 16. In the result, the above writ petition filed by the Bank is dismissed and the impugned order dated 02.03.2005 made in P.G.A.No.55/2004 passed by the authority is upheld. No cost.