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2022 DIGILAW 1509 (ALL)

Pramod Kumar Singh v. State Of U. P.

2022-09-20

SANGEETA CHANDRA

body2022
JUDGMENT : (1). Heard learned counsel for the petitioner, Sri Udai Bhanu Singh, learned counsel for the Respondents No. 5 & 7 and Sri Satyam Singh, learned counsel for the Respondent No.3. (2). This Court has heard the parties at length and finds that the petitioner's claim gratuity from their initial date of engagement as Ad hoc employees on the basis of an order passed on 08.10.1985 after agreement between the parties that they shall be regularized w.e.f. the initial date of their engagement. In the said order of regularization, an exception was carved out only to the extent that back wages and other allowances and other kind of arrears shall not be claimed by such regularized employees. No mention was made therein that gratuity will not be payable to them as gratuity is not an arrear and it becomes payable only when a person retires. (3). It has been argued by the learned counsel for the petitioners that initially when they had approached the respondents, the matter was referred to the Cooperative Institutional Service Board, and the Cooperative Institutional Service Board while considering the definition of employee as given under the Act had rejected the claim of the petitioners for gratuity w.e.f. their initial date of engagement. The petitioners challenged such order dated 04.09.2019 in Writ A No. 18804 of 2019, 'Pramod Kumar Singh and 2 Others vs. State of U.P. and Others. This Court by its order dated 28.11.2019 observed that the Secretary of the Institutional Service Board is not the Competent Authority/Controlling Authority under the Payment of Gratuity Act, 1972. The petitioner should make their claim before the Controlling Authority under the Payment of Gratuity Act, 1972 and the order passed by the Secretary of the Cooperative Institutional Service Board would not come in the way of the Controlling Authority to pass appropriate orders. The Bank challenged such order in Special Appeal Defective No. 284 of 2020 which was allowed on 13.10.2020 by referring to the observations made by the Hon'ble Supreme Court in the Case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and Others (2007) 11 SCC 756 followed in Shobhai Ram Vs. State of U.P. 2014 (6) ADJ 280 . Addl. Labour Commissioner and Others (2007) 11 SCC 756 followed in Shobhai Ram Vs. State of U.P. 2014 (6) ADJ 280 . The Appellate Court observed that the 1975 Regulations specifically have a provision for Gratuity under Regulation 95, and therefore, such provision shall govern the employees of Cooperative Societies and not the Payment of Gratuity Act, 1972. (4). The Appellate Court modified the order dated 28.11.2019 passed by the Writ Court and the petitioners were directed to approach the Authority provided under Regulation 95 of the 1975 Regulations. Consequent to such order being passed, the Chief Executive Officer of District Cooperative Bank Limited, Jaunpur referring to the earlier opinion expressed by the Cooperative Institutional Service Board with regard to the definition of employee has rejected the petitioner's claim for Gratuity being calculated on the basis of their initial date of engagement, and has directed that calculation of gratuity be made w.e.f. the date of their regularization. (5). Learned counsel for the petitioners has also pointed out that in an identically situated employee's case i.e. in the case of Ajay Kumar Singh, the Additional Commissioner and Additional Registrar, Cooperative, Varanasi Mandal, Varanasi has passed an Order on 29.04.2018 for calculation and payment of gratuity to Ajay Kumar Singh from the date of his initial engagement. (6). Learned counsel for the respondent, on the other hand, has pointed out that it is not disputed by the petitioners that they are employees of a Cooperative Society and governed by the 1965 Act and also by the 1975 Regulations. The Cooperative Institutional Service Board may render opinion/advise or give instructions under the Act and the Regulations, if a matter is referred to it. The question of calculation of gratuity of the petitioners was referred to the Cooperative Institutional Service Board and it had given its opinion on 04.09.2019 that gratuity would be payable to the petitioners only from the date of their regularization and their becoming employees of the Cooperative Society in question. (7). It has been argued that the petitioner no doubt challenged the such order in Writ-A No. 18804 of 2019, but the Writ Court did not quash the Order dated 04.09.2019. (7). It has been argued that the petitioner no doubt challenged the such order in Writ-A No. 18804 of 2019, but the Writ Court did not quash the Order dated 04.09.2019. It only observed that the Secretary of the Cooperative Institutional Service Board is not the Controlling Authority under the Payment of Gratuity Act, 1972 and that the petitioners were free to approach the Controlling Authority under the Act of 1972 who shall not be influenced by any order passed by the Cooperative Institutional Service Board. The Bank, thereafter, had filed the Special Appeal Defective No. 284 of 2020 which was allowed on 13.10.2020 holding that the Cooperative Societies Act and the Regulations framed thereunder are a complete Code in themselves, and therefore, the question of gratuity to the petitioners cannot be decided by the Controlling Authority under the Payment of Gratuity Act, 1972. The Order dated 28.11.2019 passed by the Writ Court was modified to this extent, leaving it open for the petitioners to approach the Authority provided under Regulation 95 of the 1975 Regulations. Since the order of the Cooperative Institutional Service Board dated 04.09.2019 was not set aside by the Writ Court, its still stands and it has been relied upon in the impugned order by the Respondents. The petitioners have not challenged the order dated 04.09.2019. (8). Learned counsel for the petitioner prays for liberty to amend the writ petition and to challenge the Order dated 04.09.2019. (9). This Court finds that the petitioner had challenged the order dated 04.09.2019 passed by the Cooperative Institutional Service Board in Writ-A No. 18804 of 2019 and this Court in its judgement dated 28.11.2019 had only made an observation that in view of Payment of Gratuity Act 1972, the Controlling Authority is competent to decide and it shall decide the claim ignoring the Order dated 04.09.2019. The order dated 04.09.2019 was not set aside. (10). In Special Appeal filed by the Bank, the Division Bench clarified that the Cooperative Societies Act and the Regulations framed thereunder will govern payment of Gratuity to employees of Cooperative Society. In effect the Division Bench in its order dated 13.10.2020 affirmed the order passed by the Cooperative Institutional Service Board. The order dated 04.09.2019 was not set aside. (10). In Special Appeal filed by the Bank, the Division Bench clarified that the Cooperative Societies Act and the Regulations framed thereunder will govern payment of Gratuity to employees of Cooperative Society. In effect the Division Bench in its order dated 13.10.2020 affirmed the order passed by the Cooperative Institutional Service Board. The petitioner cannot now be allowed to challenge the order dated 04.09.2019 as it would amount to filing the second writ petition for the same cause of action which is barred by the Principle of constructive Res judicata. (11). Learned counsel for the petitioner at this stage says that while the Writ Court did not set aside the order dated 04.09.2019 in its judgement dated 28.11.2019, and the Division Bench in Appeal also did not set aside the order passed by the Writ Court dated 28.11.2019, but only modified it by observing that the Competent Authority would be the Authority under the Cooperative Societies Act and Regulations framed thereunder. Hence, it cannot be be said that the order dated 04.09.2019 still exists or that it could have been relied upon by the respondents in passing the impugned order. (12). This Court finds from the perusal of the judgement of the Division Bench that it has clearly provided that the Payment of Gratuity Act 1972 will not apply in view of the judgement of the Supreme Court in the Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and Others (2007) 11 SCC 756 . It may not have set aside the judgement rendered on 28.11.2019 by the Writ Court, but the fact that it has observed in the body of the judgement that the Cooperative Societies Act and the Regulations framed thereunder shall prevail over the Payment of Gratuity Act, 1972, insofar as employees of Cooperative Societies are concerned, means that the Division Bench has clearly given an opinion regarding the Institutional Service Board being the Competent Authority. It had already passed an order on 04.09.2019. (13). Under the Regulations of 1975, Regulation 102 (3) (2) provides that the Cooperative Institutional Service Board shall be the Competent Authority to decide all matters relating to pay, increment, allowances (except travel allowance), probation, Confirmation, retirement, provident fund, and gratuity and in case of any doubt or dispute its decision shall be treated to be final. (14). (13). Under the Regulations of 1975, Regulation 102 (3) (2) provides that the Cooperative Institutional Service Board shall be the Competent Authority to decide all matters relating to pay, increment, allowances (except travel allowance), probation, Confirmation, retirement, provident fund, and gratuity and in case of any doubt or dispute its decision shall be treated to be final. (14). The Cooperative Institutional Service Board has already held that under the Regulation 2 (11) employee has been defined as a person who has been engaged on full time basis in a Cooperative Society and shall not include persons engaged on daily wages, or in stopgap or ad hoc, or as part-time employees. (15). This Court finds both from the order passed on 04.09.2019 and the Order passed, thereafter, on 10.02.2021, that there is a correct appreciation of the definition of an employee as per the Regulations of 1975. The petitioners cannot be granted service benefits of a time when they were not employees of the Cooperative Society concerned as they become employee only when they joined the mainstream. (16). This Writ Petition stands dismissed.