JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Mr. J.C. Belwal, Advocate with Mr. Amar Shukla, Advocate, present for the petitioners. 2. Mr. C.K. Sharma, Advocate, holding brief of Mr. Ashish Joshi, Advocate, present for the respondent nos.1 & 2. 3. Ms. Beena Pandey, learned counsel for the State of U.P./respondent no.3. 4. Mr. Paresh Tripathi, Advocate, present for respondent no.4. 5. Since the issue involved in these writ petitions is common, therefore, these writ petitions were heard and are now being decided by a common order. 6. The petitioners before this Court, in the above writ petitions, were the employees of the erstwhile U.P. State Cooperative Federation Ltd. (from hereinafter referred to as “the U.P. Cooperative Federation”) and were subsequently transferred to Uttaranchal State Cooperative Marketing Federation Ltd. (from hereinafter referred to as “the Uttarakhand Cooperative Federation”) w.e.f. 01.01.2005, upon its coming into existence, due to the creation of the new State of Uttarakhand on November 9, 2000. Some of the petitioners after being transferred to new federation in Uttarakhand reached the age of superannuation and subsequently retired from service. The question arose as to who is liable to give them the post retirement benefits such as Gratuity, G.P.F. and Earned leave, etc. The U.P. Cooperative Federation Ltd. denied any its liability in the matter. The Cooperative Federation in the State of Uttarakhand was not prepared to give anything prior to the date when such employees were transferred to new Federation, i.e. the Uttarakhand Cooperative Federation. Aggrieved, the petitioners filed writ petitions before the Court. 7. The writ petitions were allowed by the learned Single Judge of this Court. The U.P. Cooperative Federation thereafter filed Special Appeal being Special Appeal No.229 of 2009 (U.P. Cooperative Federation Ltd. & another Vs. Uttaranchal State Cooperative Marketing Federation Ltd. & others), which was by the Division Bench of this Court vide judgment and order dated 14.05.2010. The order of the learned Single Judge was upheld and as was the direction the U.P. Cooperative Federation was directed to give post retirement benefits prior to the date of transfer of such employees to Uttarakhand, and for the remaining part liability was fixed upon Uttarakhand Cooperative Federation. This Court has also been informed that the matter went up to the Hon’ble Apex Court where the S.L.P. was dismissed. This Court has also been informed that the matter went up to the Hon’ble Apex Court where the S.L.P. was dismissed. By now some benefits have been by the Uttarakhand Cooperative Federation as well as by the U.P. Cooperative Federation, however, the entire benefits have not been given by the U.P. Cooperative Federation, as the gratuity and earned leave which have been given to the petitioners is based on the last salary drawn by them on the date of their transfer to the Uttarakhand Cooperative Federation, where as such employees (petitioners) claim that these dues have been wrongly calculated and their gratuity as well as earned leave is liable to be calculated not on the basis of salary which they were drawing on the date of their transfer from U.P. Cooperative Federation to Uttarakhand Cooperative Federation but on the salary which was drawn by them on the date of their retirement. This argument of the petitioners finds support from the provisions given in the Payment of Gratuity Act, 1972. Clause 1 and 2 of Section 4 of the Payment of Gratuity Act, 1972, reads as under:- “4. 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, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority. Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. Explanation.- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days’ wages for each season. Explanation.- In the case of a monthly rated employee, the fifteen days’ wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen. (3) ……………………………..…………………………. (4) …………………………..…………………………… (5)……………………………………………………….. (6)…………………………………………………………” (emphasis supplied) 8. A bare perusal of Clause 2 of Section 4, read with the Explanation given to the second proviso to Clause 2 of Section 4, clarifies that the gratuity has to be calculated on the basis of “wages last drawn”. Since gratuity has to be calculated on the basis of “wages last drawn”, the U.P. Cooperative Federation ought to have given gratuity after calculating the “wages last drawn”, which were in Uttarakhand Cooperative Federation and not at U.P. Cooperative Federation, at the time of their transfer. It is also the recommendation of the Uttarakhand Cooperative Federation to the U.P. Cooperative Federation that the gratuity and earned leave must be calculated on the basis of “wages/salary last drawn” by such employees on the date of their superannuation in Uttarakhand, as were given to them in Uttarakhand. Yet this has not been followed. The same principle would be applied while determining earned leave of the petitioners. Such petitioners who have been unnecessarily dragged into litigation must also be compensated as they are all retired employees. 9. Yet this has not been followed. The same principle would be applied while determining earned leave of the petitioners. Such petitioners who have been unnecessarily dragged into litigation must also be compensated as they are all retired employees. 9. In view of the above discussion, the writ petition stands disposed with the direction to the respondents, particularly, U.P. Cooperative Federation who shall recalculate the gratuity and earned leave of the petitioners on the basis of last salary/monthly wages drawn by the petitioners in Uttarakhand Cooperative Federation and after the determination, pay the same to them within a period of three months from the date of production of certified copy of this order. Along with the said amount the U.P. Cooperative Federation shall also give a compensation of Rs.3,000/- to each of the petitioners. 10. No order as to costs.