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2018 DIGILAW 1004 (GUJ)

State of Gujarat v. Arvindbhai Khodidashai Kachhiya

2018-08-21

A.S.SUPEHIA, HARSHA DEVANI

body2018
JUDGMENT : A.S. Supehia, J. 1. The present letters patent appeals are directed against the order dated 15.9.2017 passed by the learned Single Judge in Special Civil Applications No. 16814 of 2017 to No. 16820 of 2017 and Special Civil Application No. 14251 of 2016, whereby the writ petitions have been partly allowed by directing the appellants herein (original respondents) to pay the gratuity amount as directed by the Controlling Authority vide orders dated 29.12.2014. 2. Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing on behalf of the appellants has submitted that the order passed by the learned Single Judge is against the provisions of the rules and regulations governing the gratuity. It was submitted that the cases of the present respondents would be governed by the provisions of the Payment of Gratuity Act and accordingly, they were rightly paid the gratuity amount at the relevant time. It was submitted that the learned Single Judge has erred in holding that the orders passed by the Controlling Authority for payment of gratuity to the respondents herein is required to be sustained. No further contentions are raised. 3. This Court has perused the order dated 15.9.2017 passed by the learned Single Judge in the captioned writ petitions. This Court has also perused the orders passed by the Controlling Authority dated 29.12.2014 whereby the Controlling Authority after detailed examination, has directed the present appellants to pay the difference of amount of gratuity to the concerned respondents-employees. 4. On a perusal of the orders passed by the Controlling Authority as well as the order passed by the learned Single Judge, this Court does not find any infirmity therein so as to deny the benefits of gratuity to the respondents-employees. The learned Single Judge has, after considering that the employees are paid gratuity under the provisions of the Gujarat Civil Services (Pension) Rules, 2002 and provisions of Payment of Gratuity Act, 1972, has held thus: "5.2 Special Civil Application Nos. The learned Single Judge has, after considering that the employees are paid gratuity under the provisions of the Gujarat Civil Services (Pension) Rules, 2002 and provisions of Payment of Gratuity Act, 1972, has held thus: "5.2 Special Civil Application Nos. 16814, 16818, 16819 and 16820 of 2017 are partly allowed and the impugned orders dated 29.12.2014 passed by the Controlling Authority under the Payment of Gratuity Act at Ahmedabad qua (i) Arvindbhai Khodidas Kachhia, (ii) Popatsinh Madhaji Rathod, (iii) Revabhai Ishwarji Parmar and (iv) Ambalal Parshottam Parmar are not interfered with on merits, however the calculation is modified to the extent of entitlement of the concerned employee, under the provisions of the Payment of Gratuity Act, the details of which are noted in the statement quoted in para : 4.3 above. The said modified amount is directed to be paid to the concerned employee within a period of two months from the date of receipt of this order. So far the direction to pay interest is concerned, the same is not interfered with." 5. The Controlling Authority after examining the service book and the pension papers and after considering the fact that the appellants have only made part payment of gratuity to the respondent-employees, viz : (in case of respondent of Special Civil Application 16819 of 2017, 23 years of service though he has rendered 34 years of service as per the service book), it has directed the appellants to grant gratuity for the entire period after deducting the amount already paid to them. It is settled position of law that an employee is eligible for gratuity for the entire period of continuous service after it is regularised and which is treated for the purpose of grant of pension. No contention was raised before the Controlling Authority as well as before the learned Single Judge that the respondents are not entitled to gratuity for the period prior to their regularization or they had not rendered continuous service as provided under section 2-A of the Payment of Gratuity, Act, 1972. Thus, this Court does not find any infirmity or illegality in the orders passed by the Controlling Authority and the learned Single Judge. 6. Before parting with the case, we may note that the present letters patent appeals falls in the category of "frivolous litigation". Thus, this Court does not find any infirmity or illegality in the orders passed by the Controlling Authority and the learned Single Judge. 6. Before parting with the case, we may note that the present letters patent appeals falls in the category of "frivolous litigation". It is not the case of the appellant - authorities that the case involves complex issues relating to facts and the law. Before filing the present appeal, the appellant was required to peruse the relevant provision of law, the orders passed by the Controlling Authority and the learned Single Judge, and after undertaking necessary exercise, if it was found that the orders were bereft of reasoning or perverse or illegal, the remedy of filing an appeal should have been resorted to. 7. The Supreme Court in the case of Punjab State Power Corporation limited., Patiala and others v. Atma Sing Grewal, (2014) 13 SCC 666 has held thus: "6. The reason given by the High Court while imposing the cost is as under: "This is yet another instance of a frivolous appeal filed at the hands of a statutory body. There was absolutely no merit and no cause to file the instant appeal. Despite the same, the Punjab State Electricity Board, chose to prefer the instant appeal without application of mind. In this case, the Punjab State Electricity Board has not only incurred unnecessary expenses, but also wasted precious Court time. In view of the above, we are of the view, that the instant appeal deserves to be dismissed with costs. The instant appeal is, accordingly, dismissed with costs quantified at Rs. 10,000/- the aforesaid costs shall not be borne by the Electricity Board, but shall be recovered from the officer who authorized the filing of the instant appeal. The aforesaid costs shall, in the first instance, be deposited by the appellant with the Legal Services Authority, Punjab, within one month from today. The recovery thereof shall be made from the concerned officer within a further period of two months. The aforesaid costs shall, in the first instance, be deposited by the appellant with the Legal Services Authority, Punjab, within one month from today. The recovery thereof shall be made from the concerned officer within a further period of two months. In case, the aforesaid recovery is made from an officer who feels that the actual responsibility for filing the instant appeal rested on the shoulders of some other officer, it would be open to such officer to approach this Court by moving a civil miscellaneous application (in the instant Letters Patent Appeal) so as to require this Court to determine the accountability of the officer concerned. Since the provisions of the aforesaid statutory rule are crystal clear, we are in agreement with the High Court that the appeal preferred by the petitioners was totally frivolous. Therefore, the High Court has rightly awarded the cost while dismissing such a merit less appeal. The only question is of recovery of this cost from the officer who authorised the filing of the said appeal." "15. No doubt, when a case is decided in favour of a party, the Court can award cost as well in his favour. It is stressed by this Court that such cost should be in real and compensatory terms and not merely symbolic. There can be exemplary costs as well when the appeal is completely devoid of any merit. See Rameshwari Devi and others v. Nirmala Devi and others (2011) 8 SCC 249 . However, the moot question is as to whether imposition of costs alone will prove deterrent? We don't think so. We are of the firm opinion that imposition of cost on the State/PSU's alone is not going to make much difference as the officers taking such irresponsible decisions to file appeals are not personally affected because of the reason that cost, if imposed, comes from the Government's coffers. Time has, therefore, come to take next step viz. recovery of cost from such officers who take such frivolous decisions of filing appeals, even after knowing well that these are totally vexatious and uncalled for appeals. We clarify that such an order of recovery of cost from the concerned officer be passed only in those cases where appeal is found to be ex-fade frivolous and the decision to file the appeal is also found to be palpably irrational and uncalled for." 8. We clarify that such an order of recovery of cost from the concerned officer be passed only in those cases where appeal is found to be ex-fade frivolous and the decision to file the appeal is also found to be palpably irrational and uncalled for." 8. Thus, the present appeals at the instance of State Government are absolutely frivolous appeals and are palpably irrational and uncalled for. Under the circumstances, the appeals are dismissed with costs quantified at Rs. 10,000/- (Rupees ten thousand only) each, to be recovered from the concerned officer who has advised to file the appeals, within a period of two weeks from the date of receipt of this order. The amount of costs as directed hereinabove shall be deposited with the Gujarat State Legal Services Authority by the concerned officer. 9. The amount which is deposited before the Registry of this Court pursuant to the order dated 2.5.2018, shall be disbursed to the respondents herein as per the statement incorporated by the learned Single Judge in paragraph 4.3 of the order dated 19.5.2017 passed in the captioned writ petitions, after due verification of the concerned respondents. 10. Registry shall supply the copy of the present order to the Gujarat State Legal Services Authority forthwith. 11. In the result, the appeals fail and are, accordingly, dismissed.