Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 368 (KAR)

MAHADEVAMMA v. ASSISTANT EXECUTIVE ENGINEER

2021-03-04

ALOK ARADHE

body2021
JUDGMENT : Alok Aradhe, J. 1. In this intra court appeal under Sec. 4 of the Karnataka High Court Act, 1961 have been filed by the appellant who is the widow of deceased employee against the order dtd. 4/9/2012 passed by the learned Single Judge. In order to appreciate the controversy involved in this appeal, few facts need mention, which are stated hereinafter. 2. The facts in nutshell are that the husband of the appellant was appointed as a heavy mazdoor on daily wage basis in irrigation department of Government of Karnataka. The services of husband of the appellant were regularized on 1/1/1990. The husband of the appellant superannuated on 30/6/2004. After the death of husband of the appellant, she filed an application before the Controlling Authority under the provisions of Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act' for short). The Controlling Authority by an order dtd. 19/1/2011 inter alia held that the deceased employee was entitled to payment of gratuity under the provisions of the Act and the appellant in this appeal was directed to make payment of Rs.30,471.00 along with interest at the rate of 10% from 31/7/2004. The Controlling Authority calculated the amount of gratuity deducted the amount of death cum retirement gratuity received by the appellant on superannuation of her husband. Being aggrieved by the aforesaid order, the appellant in this appeal filed an appeal before the appellate authority. The Appellate Authority by an order dtd. 14/2/2012 dismissed the appeal. The aforesaid order was challenged by respondent No. 1 herein before the learned Single Judge. The learned Single Judge by an order dtd. 4/9/2012 allowed the writ petition preferred by respondent No. 1 and quashed the orders passed by the controlling authority as well as the appellate authority under the provisions of the Act. In the aforesaid factual background, this appeal has been filed. 3. Learned counsel for the appellant submitted that the learned Single Judge ought to have appreciated that the appellant had made claim for gratuity before the controlling authority under the provisions of the Act with regard to the period for which husband of the appellant had rendered services as daily wage employee. It is further submitted that from perusal of Sec. 3(1)(b) as well as Sec. 2(3) of the Act, it is evident that the Act was applicable to the husband of the petitioner. It is further submitted that from perusal of Sec. 3(1)(b) as well as Sec. 2(3) of the Act, it is evident that the Act was applicable to the husband of the petitioner. It is also pointed out that the learned Single Judge ought to have appreciated that the claim of gratuity has been made in respect of a period, which is not covered under any Act or Rules and has been made in respect of the period prior to which the services have been regularized. It is further submitted that the issue involved in this appeal is no longer res integra and is squarely covered by decision of the Supreme Court in STATE OF PUNJAB VS. LABOUR COURT, JULLANDAR and ORS., (1980) 1 SCC 4 , NETRAM SAHU VS. STATE OF CHATTISGARH AND ANOTHER, (2018) 5 SCC 430 , MUNICIPAL CORPORATION OF DELHI VS. DHARAM PRAKASH SHARMA and ANOTHER, AIR 1999 SC 293 . 4. On the other hand, learned counsel for respondent No. 1 has referred to para 12 of the order passed by the learned Single Judge and has submitted that the case of the husband of the appellant is not covered within the definition of the 'employee' as provided under Sec. 2(3) of the Act as the husband of the appellant was an employee of State Government and the provisions of the Act do not apply in case of employees of Central and State Government. 5. Learned Additional Government Advocate for respondent No. 4 has taken us through paragraphs 10, 13 and 20 of the order passed by the learned Single Judge and has supported the order passed by the learned Single Judge. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. The moot question, which arises for consideration in this appeal is whether an employee of the irrigation department of Government of Karnataka can claim the benefit of gratuity under the provisions of the Act in respect of a period for which he has rendered the services as daily wage employee. Before proceeding further, provisions of Sec. 2(e) and Sec. 4(1) of the Act may be noticed, which are reproduced below for the facility of reference. Before proceeding further, provisions of Sec. 2(e) and Sec. 4(1) of the Act may be noticed, which are reproduced below for the facility of reference. 2(e) employee means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity: 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 sec. 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. 7. Thus, from perusal of Sec. 4(1) of the Act, it is evident that the gratuity under the Act is payable to an employee on termination of his employment after he has rendered continuous service for a period less than five years. Sec. 2(e) of the Act excludes from the purview of the Act, the employees of the Central Government or a State Government. 8. Sec. 2(e) of the Act excludes from the purview of the Act, the employees of the Central Government or a State Government. 8. The Supreme Court in Municipal Corporation of Delhi supra while dealing with the question whether an employee of municipal corporation Delhi, would be entitled to payment of gratuity under the Act, has held that payment of gratuity Act being a special provision, which excludes its applicability to an employee who is otherwise governed by provisions of Pension Rules, it cannot be held that the provisions of the Act do not apply to such an employee. However, the Supreme Court after taking note of the expression 'employee' as defined under Sec. 2(e) of the Act has held that the aforesaid expression excludes the Central Government and the State Government. The Supreme Court in Netram Sahu supra has held that a daily wage employee, whose services have been regularized subsequently, is entitled to benefit of the provisions of the Act in respect of a period for which he has rendered services as daily wage employee. In Para 14 it has been held as under: 14. We do not agree with this submission of the learned counsel for the respondent State for more than one reason: 14.1 first, the appellant has actually rendered the service for a period of 25 years. 14.2 Second, the State actually regularized his services by passing the order dtd. 6/5/2008. 14.3. Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years. 14.4. Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought tour notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous services of five years. 9. Now we may advert to the facts of the case in hand. The admitted position with regard to the factual matrix of the case, which emerges from Para-12 of the order passed by the learned Single Judge, which has not even assailed before us reads as under: 12. 9. Now we may advert to the facts of the case in hand. The admitted position with regard to the factual matrix of the case, which emerges from Para-12 of the order passed by the learned Single Judge, which has not even assailed before us reads as under: 12. The facts which are not in dispute are that, all the claimants were working as daily wagers, their services were regularized by the State Government and they retired even before the formation of Cauvery Neeravari Nigam, as such, they cannot claim that they were employees of the Nigam. 10. Thus, from the facts referred to supra, it is evident that the husband of the appellant was employed initially as daily wage worker and thereafter his services were regularized by the State Government. The husband of the appellant superannuated even before formation of Cauvery Neeravari Nigam and therefore, husband of the appellant cannot claim himself to be the employee of the Nigam. However, the claim before the controlling authority under the provisions of the Act was made in respect of a period for which husband of the appellant had served as daily wage employee in the irrigation department of the State Government. The aforesaid issue is no longer res integra in view of decision of the Supreme Court in Netram sahu supra which is binding on this court as in the aforesaid decision the Hon'ble Supreme Court has dealt with a case of a daily wager of water resources department of State Government, whose services have been subsequently regularized and he has been held entitled to benefit of gratuity under Payment of Gratuity Act, 1972. The learned Single Judge has allowed the writ petition preferred by respondent No. 1 on the ground that under Rule 248A of Karnataka Civil Services Rules, the husband of the appellant was entitled to payment of gratuity in accordance with the aforesaid Rule. The said Rule reads as under: 248A(1) Persons borne on the work- charged establishments of Government either on daily or monthly wages system when appointed to regular pensionable service under Government shall count for pension or gratuity one-fourth of their service rendered on the work-charged establishments subject to a maximum of three years. The said Rule reads as under: 248A(1) Persons borne on the work- charged establishments of Government either on daily or monthly wages system when appointed to regular pensionable service under Government shall count for pension or gratuity one-fourth of their service rendered on the work-charged establishments subject to a maximum of three years. (2) Persons borne on the work-charged establishments of Government on time scales of pay who were in service on 1/7/1978 and have been or are absorbed in regular pensionable service under Government after that date shall count their work-charged service to the extent indicated below, for purposes of pension and gratuity: (i) For the first ten years - 50% of service. (ii) For the remaining period - full service. 11. It is pertinent to note that the interpretation put forth by the learned Single Judge that in view of Rule 248A of the Rules, the provisions of the Act would not apply cannot be sustained as the Supreme Court in Municipal Corporation Delhi supra has held that payment of Gratuity Act being a special provision for payment of gratuity, unless there is any provision therein which excludes its applicability to an employee who is otherwise governed by provision of Pension Rules, it is not possible to hold that an employee is not entitled to gratuity under Payment of Gratuity Act, 1972. In view of aforesaid enunciation of law by Hon'ble Supreme Court in Netram Sahu supra, the order passed by the learned Single Judge cannot be sustained in the eye of law as the aforesaid decision binds this court. In view of preceding analysis, the order passed by the learned Single Judge is hereby quashed and the order passed by the controlling authority as well as Appellate Authority passed under the Act is restored. In the result, appeal is allowed.