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2018 DIGILAW 1952 (HP)

Chief Engineer, Bhakra Beas Management Board v. Souju Ram

2018-11-12

AJAY MOHAN GOEL, SURYA KANT

body2018
JUDGMENT : SURYA KANT, J. 1. Chief Engineer, Bhakra Beas Management Board (hereinafter referred to as 'BBMB') is aggrieved by the order dated 21st February, 2017 passed by the 'Controlling Authority' Under Payment of Gratuity Act, 1972 as well as the order dated 21st August, 2018 whereby the 'Appellate Authority' under the Act has upheld the order of the Controlling Authority. Vide these orders, the first respondent, who served BBMB as a daily wage Carpenter, has been held entitled to Gratuity for the period from 7th September, 1993 to 9th October, 1996 alongwith simple interest at the rate of 10% per annum in accordance with provisions of The Payment of Gratuity Act, 1972 (hereinafter referred to as 1972 Act'), and the petitioner's appeal preferred under Section 7 (7) of the 1972 Act has been turned down by the Appellate Authority by way of a selfspeaking order. Both these orders are now under challenge in this writ petition. 2. Learned counsel for the petitioner vehemently contends that the first respondent was engaged on daily wage basis and his services were retrenched on 30th June, 1992 after complying with provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 1947 Act'). It is urged that since retrenchment compensation under the 1947 Act was paid, the first respondent was not entitled to seek Gratuity under the provisions of 1972 Act. 3. Firstly, the contention appears to be totally misconceived and misdirected. The compensation payable to a workman as a result of his retrenchment under the 1947 Act can neither be set off nor adjusted against the amount of Gratuity which he is entitled to be paid for the satisfactory service rendered by him and further subject to such terms and conditions as are prescribed under the 1972 Act. These are two independent and separate claims under two different Welfare Legislations and award or grant of benefit under one Act does not deprive the claimant-employee from the benefit under the other Act. 4. Secondly, the petitioner's own case was that the first respondent was again engaged as per his seniority in the month of October 1992. Thereafter, respondent No. 1 alongwith some other employees filed a Writ Petition in this Court seeking various directions including to take them on the work charge establishment. The High Court passed an interim order on 7th September, 1993 not to disengage their services till further orders. Thereafter, respondent No. 1 alongwith some other employees filed a Writ Petition in this Court seeking various directions including to take them on the work charge establishment. The High Court passed an interim order on 7th September, 1993 not to disengage their services till further orders. The Writ Petitions were finally disposed of on 9th October, 1996 with certain directions to consider their claim for regularization of services. Though the said claim was eventually turned down but the fact remains that the first respondent served the petitioner from October, 1992 till 9th October, 1996 and thus was entitled to be paid Gratuity for the said period. 5. Thirdly, it is not the case of the petitioner that the respondent-employee does not fall within the ambit of 1972 Act or that the petitioner had adopted any other Welfare Scheme which was more beneficial than the provisions of 1972 Act. In the absence thereof, the first respondent is entitled to and has rightly been granted the benefit of 1972 Act. 6. The petitioner's contention that the service rendered under the interim orders of this Court cannot enure any benefit to the first respondent, is also totally misplaced. It was not a case where the writ petitions were eventually dismissed or the claim of the first respondent was found untenable. Be that as it may, he remained in service and actually served the petitioner till his claim for regularization was turned down. The service rendered by the first respondent falls within the four corners of Section 2A of the 1972 Act which defines 'Continuous Service', as it is not the case of the petitioner that the service rendered by the first respondent was interrupted by any cause attributable to him within the meaning of Sub-Section (1) of Section 2A of the 1972 Act. 7. The next contention of the petitioner that the first respondent approached this Court against rejection of his claim for regularization and his Writ Petition was dismissed is totally alien to the issue adjudicated by the Controlling or Appellate Authorities under the 1972 Act. 8. In fact, the concept of 'Regular Service' has no bearing so far as the claims of an employee/workman under the 1947 Act or 1972 Act are concerned. The principle of 'Regular Service' is referable to 'Civil Employment' under the State or its Authorities. 8. In fact, the concept of 'Regular Service' has no bearing so far as the claims of an employee/workman under the 1947 Act or 1972 Act are concerned. The principle of 'Regular Service' is referable to 'Civil Employment' under the State or its Authorities. The benefits under various Statutes, like Industrial Disputes Act, Payment of Wages Act, Payment of Gratuity Act, Employees Provident Funds and Miscellaneous Provisions Act, Maternity Act, etc. etc. are admissible, regardless of the status of the employee provided that the claimant fulfills the conditions as may be prescribed under the Statute for the grant of these benefits. 9. Similarly, we do not find any merit in the petitioner's objection that the claim of the first respondent was time barred and ought to have been rejected on this ground alone. The 1972 Act casts a statutory duty on the Employer through Section 7(3) to arrange and pay the amount of Gratuity within thirty days from the date it becomes payable to a person. The onus is thus on the Employer to pay it and there is no corresponding obligation on the employee to claim it. The 1972 Act further contemplates that where the Employer has failed to discharge its duty under Section 7 (3), the employee can seek recovery thereof through the Controlling Authority under Section 8 and in that eventuality, the employee shall be entitled to interest as prescribed under Sub-Section (3A) of Section 7. In fact, nonpayment of Gratuity on time, is an offence for which penalties are prescribed under Section 9 of the 1972 Act. The Controlling Authority has very aptly observed that the Gratuity is not a bounty to be distributed by the Employer but is a valuable right acquired by the employee on the basis of his satisfactory service. The Controlling Authority has, in fact, taken a lenient view by awarding only simple interest on the balance Gratuity amount. 10. For the reasons aforestated, we do not find merit in this writ petition. Hence, the same is dismissed so also the pending miscellaneous applications.