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2018 DIGILAW 1608 (HP)

State Of H P v. Bhoop Ram

2018-09-05

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The seminal issue involved in all these petitions is with regard to mode and method of payment of gratuity to workmen, who had initially worked on dailywage basis and were thereafter regularized. However, before answering said question, certain minimal facts need to be noticed. 2. The private respondents in all these cases were appointed as dailywage Beldars and after putting in about decade''s service, they were conferred with work charge status and at the time of retirement, they were working as regular Beldars. They individually filed application(s) before the Controlling AuthoritycumLabour Officer under the Payment of Gratuity Act,1972 (in short, "the Act") claiming gratuity. The same was allowed by directing the petitioners to pay private respondents gratuity for the entire period rendered by them on dailywage basis taking into consideration the wages last drawn with interest @ 9% per annum. 3. The private respondents filed an appeal(s) against the said order before the appellate authority, i.e. Joint Labour Commissioner, Shimla, who allowed the same and awarded gratuity to them under the Payment of Gratuity Act taking into consideration the emoluments last drawn as regular Beldars and accordingly modified the order. 4. It is against this award that the petitioners have filed the present petitions on the ground that the findings recorded by the appellate authority are wrong and illegal as instead of calculating gratuity on the salary drawn by the private respondents as regular Beldars, the same was required to be calculated on the basis of the wages last drawn by them, for the period they rendered daily wage service. It is in this background, the aforesaid question is required to be answered. 5. As regards this Court, the earliest judgment on the issue is by a learned Single Judge (Justice Rajiv Sharma) in State of H.P. vs. Lashkari Ram , (2007) LabIC 3760, wherein it was held that where a workman had worked on dailywage basis and thereafter his services had been regularized, in that event the workman is entitled to get gratuity for the period he remained on dailywage basis under the Act, whereas for rest of the period after his regularization upto his superannuation, he would be entitled to the payment of gratuity under the CCS (Pension) Rules,1972. It is apt to reproduce the relevant observations, which read thus: "10. It is apt to reproduce the relevant observations, which read thus: "10. Two questions which require deep consideration by this Court are: (1) Whether the workman is entitled to get gratuity for the period he remains on daily wages basis under the Payment of Gratuity Act, 1972 and thereafter is he entitled to get the gratuity under the CCS (Pension) Rues, 1972 for the period commencing from regularization to the date of superannuation? (2) Whether the workman''s entire period w.e.f. his initial date of engagement on daily wages basis, including the period of regularization up to superannuation, Will entitle him to get the gratuity either under the Payment of Gratuity Act, 1972 or under the CCS (Pension) Rules, 1972? 11. Admittedly, the workman has worked ''on daily wages basis w.e.f. March, 1982 to December 31, 1993 and thereafter after his regularization as Water Guardhelper from January 1, 1994 to October 31, 2001. 23. In view of the above discussion, the Controlling Authority was required to calculate the gratuity for the period w.e.f. March, 1982 to December 31, 1993 under the Payment of Gratuity Act, 1972 and for the remaining period, i.e. January 1, 1994 to January 31, 2001 (regular period only), the State was bound to pay the gratuity under the CCS (Pension) Rules, 1972. Accordingly, the writ petition is disposed of with the following directions: (i) The workman is entitled to get the gratuity for the period w.e.f. March, 1982 to December 31, 1993 under the Payment of Gratuity Act, 1972 with interest as power law laid down by the Hon''ble Supreme Court in H. Gangahanume Gowda v. Karnataka Agro Industries Corporation Ltd. ; (ii) The workman is held entitled and is to be paid the gratuity w.e.f. January 1, 1994 to January 31, 2001 (sic) (regular period) under the CCS (Pension) Rules, 1972 with interest @ 9% per annum. The copy of the judgment be sent to the Secretary Labour & Employment for its distribution to the Controlling as well as Appellate Authority constituted under the Payment of Gratuity Act, 1972." 6. Another judgment on the same issued by the same learned Judge can be found in H.P.S.E.B. and anr. vs. Balak Ram and anr. The copy of the judgment be sent to the Secretary Labour & Employment for its distribution to the Controlling as well as Appellate Authority constituted under the Payment of Gratuity Act, 1972." 6. Another judgment on the same issued by the same learned Judge can be found in H.P.S.E.B. and anr. vs. Balak Ram and anr. , (2007) 3 ShimLC 202 , where however this time the entire service of the workman, which he had rendered irrespective of fact that he had rendered the same on dailywage basis or after his service had been regularized, was ordered to be calculated under the provisions of the Act on the basis of last pay drawn by him at the time of superannuation. It will be apposite to refer to the relevant observations, which read thus: "31. The workman had continuously worked with the petitionerBoard initially on daily wages and thereafter on regular basis and thus he always remained in continuous service of the petitionerBoard. 32. The upshot of the above discussion is that the order passed by the appellate authority dated November 16, 2002 cannot be faulted with. The entire period rendered by the workman with effect from 1983 to 1998 is to be counted for the purpose of determining the gratuity under the Payment of Gratuity Act, 1972. The workman is entitled to get the gratuity on the basis of last pay drawn by him i.e. Rs. 4239/ at the time of superannuation. The order passed by the appellate authority allowing interest with effect from February 1, 1999 cannot be interfered in view of the law laid down by the Hon''ble Supreme Court as cited above." 7. The workman is entitled to get the gratuity on the basis of last pay drawn by him i.e. Rs. 4239/ at the time of superannuation. The order passed by the appellate authority allowing interest with effect from February 1, 1999 cannot be interfered in view of the law laid down by the Hon''ble Supreme Court as cited above." 7. Evidently, there is an apparent conflict in both the judgments, as referred to above, as in similar circumstances where workman initially rendered his services as dailywage worker and thereafter regular employee, in Lashkari Ram''s case , the period of service rendered by him as daily wage workman was directed to the calculated under the Act, whereas the subsequent period of service rendered by him on regular basis was directed to be calculated under the provisions of CCS (Pension) Rules, whereas in Balak Ram''s case , the entire service of the workman, initially on dailywage basis and thereafter on regular basis, was ordered to be calculated under the provisions of CCS (Pension) Rules on the basis of last pay drawn by him at the time of superannuation. 8. Apart from above, it would be noticed that two subsequent coordinate benches of this Court in their decisions rendered in CWP No. 2307/2016, titled as Principal Secretary (Forests) and anr. vs. Amar Chand and anr., decided on 13.12.2017 and CWP No. 3335/2016, titled as Executive Engineer, HPSEBL vs. Madan Lal Negi, decided on 13.6.2018 have chosen to follow ratio in Balak Ram''s case and the judgment rendered in Lashkari Ram''s case does not seem to have been brought to the notice of the aforesaid coordinate benches. 9. The question raised in these petitions is of great significance and importance and is likely to come up repeatedly before the Courts, therefore, it is not only desirable, but also imperative that the conflict amongst the various decisions is resolved at the earliest. 10. Accordingly, the registry is directed to place the papers before the Hon''ble the Chief Justice for constitution of a larger bench.