ORAL JUDGMENT 1. This Petition under Article 226 of the Constitution on India, is filed challenging the order passed by the Appellate Authority, under the provisions of Payment of Gratuity Act, 1972 (for short ‘the Act’) in Appeal No. 108 of 2022, wherein the appeal filed by the Petitioner challenging the order of Controlling Authority in Gratuity Case No. 51 of 2019 has been rejected. The Petition also challenges the order of Controlling Authority, Morbi dated 25.09.2019, wherein the Petitioner has been directed to pay the difference of gratuity along with interest @ 10%, within 30 days, from the date of their retirement. 2. The facts in brief are as under: - (i) The Petitioner – Morbi Municipality is constituted under the provisions of Gujarat Municipality Act for carrying out the work, particularly of the maintenance and hygiene of the city. It engaged several workmen on daily wage basis. The Respondent herein was engaged as daily-wager in the year 1984 and her service was regularized on 01.07.1989. She, upon attaining the age of superannuation retired on 30.04.2015. It is case of the Petitioner that upon her retirement she was paid gratuity amount as per the records of Municipality for qualifying service as per Section 81(1)(A) of the Gujarat Civil Service (Pension) Rules, 2002. (ii) It is further case of the Petitioner that the Respondent – workmen filed a claim application under Rule 10 of the Payment of Gratuity (Gujarat) Rules, 1973 in form N and the same came to be numbered as Gratuity Case No. 51 of 2019. It was case of the Respondent – workmen in Gratuity Case No. 51 of 2019 that she is entitled for gratuity from the date of her initial appointment as daily-wager from the year 1984 and the amount of gratuity is to be paid accordingly. The Controlling Authority, Morbi under order dated 25.09.2019, held that the Petitioner is entitled for payment of Rs.61,539/- towards gratuity. The Controlling Authority took into consideration 31 years of continuous service for calculating the amount of gratuity and after deducting the amount of gratuity paid earlier, directed the Petitioner to pay the difference amount of Rs.61,539/-. The amount of gratuity was further directed to be paid along with interest @ 10% from the date of retirement. (iii) Aggrieved by the order of Controlling Authority dated 25.09.2019 the Petitioner preferred appeal challenging the said order. The amount of gratuity was further directed to be paid along with interest @ 10% from the date of retirement. (iii) Aggrieved by the order of Controlling Authority dated 25.09.2019 the Petitioner preferred appeal challenging the said order. The Appellate Authority, under order dated 30.01.2023, rejected the appeal of the Petitioner (Gratuity Appeal No. 108 of 2022), confirming the order of Controlling Authority. Aggrieved by both the orders dated 25.09.2019 (Controlling Authority) and 30.01.2023 (Appellate Authority) present Petition is filed. 3. Heard learned advocate Mr. Dipak Sanchela for the Petitioner. He made following submissions: - (i) This is second round of litigation. (ii) Referring to the earlier order of this Court dated 09.02.2023, Learned Advocate submitted that as contended by the Petitioner- Municipality that under provisions of the Act, the period where the Respondent – workmen had worked as daily-wager and the period where the Respondent – workmen was placed in regular pay scale is to be bifurcated for the purpose of calculating the gratuity amount and as the same was not done, this Court in order dated 09.02.2023, in Special Civil Application No. 14494 of 2022 and allied matters remanded the matter restoring it to the file of Controlling Authority, Morbi. He relied upon paragraphs Nos. 9, 10, 11 and 12 of the decision dated 09.02.2023 in Special Civil Application No. 14494 of 2022. (iii) Relying upon another decision dated 20.12.2021, in Special Civil Application No. 2225 of 2021 and allied writ petitions, he submitted that the co-ordinate bench of this Court taking into consideration the details given with regard to each of workmen, directed the Controlling Authority to decide the issue afresh. Relying upon a table referred at Paragraph 5 of the said decision, he submitted that the Petitioner has given the bifurcation in relation to the service rendered by Respondent – workmen as daily-wager as also the date of regularization and despite that the authority failed in considering the same. He submitted that table referred in Special Civil Application No. 2225 of 2021 has been ignored and therefore the order of the Controlling Authority dated 25.09.2019, is erroneous and consequently the order of the Appellate Authority dated 30.01.2023 is also erroneous. (iv) The Controlling Authority under order dated 25.09.2019 has ignored the directions of this Court dated 20.12.2021, in Special Civil Application 2225 of 2021 and therefore the order dated 25.09.2019 is arbitrary and illegal. (iv) The Controlling Authority under order dated 25.09.2019 has ignored the directions of this Court dated 20.12.2021, in Special Civil Application 2225 of 2021 and therefore the order dated 25.09.2019 is arbitrary and illegal. That despite bifurcation required for payment of gratuity as daily-wager and the work done under regular pay scale, the Controlling Authority as well as Appellate Authority without going into that aspect awarded the amount of gratuity by counting the service as continuous service. He therefore submitted that once again the Authorities be directed to take into consideration the table referred in the order dated 20.12.2021, passed in Special Civil Application No. 2225 of 2021, wherein the details of workmen have been provided. He therefore submitted that both the orders being illegal may be quashed and set aside. 4. On the other hand, learned advocate Mr. Krunal Pandya submitted as under: - (i) For unpaid gratuity, the Respondent filed application in Form N before the Controlling Authority under section 7(4)(B) of the Act. The said application was for the unpaid (lesser amount) paid by the Petitioner towards gratuity. Considering the application of the Respondent, the Controlling Authority awarded unpaid gratuity amount of Rs.61,539/- with 10% interest. The said award was challenged by the Petitioner preferring Gratuity Appeal before the Gratuity Appellate Authority and the same was dismissed. Thus, the authorities have for the second time, as directed by this Court, considered the objections of the Petitioner and thereafter passed fresh order and therefore there is no illegality in the said order. He submitted that because of multiple / several rounds of litigation, the Respondent is not getting legitimate dues of gratuity. (ii) The payment of gratuity awarded to Respondent is in accordance with the provisions of the Act and therefore reliance placed by the Petitioner on Pension Rules is of no consequences because the Act has overriding effect over the Rules. Also, the Petitioner being daily-wager, the provisions of Pension Rules would not be applicable in the present case. Referring to both the orders dated 20.12.2021, in Special Civil Application No. 2225 of 2021 and an order dated 09.02.2023, in Special Civil Application No. 14494 of 2022, he submitted that as directed by this court, the controlling authority provided sufficient opportunity to both the parties to lead their evidence. Referring to both the orders dated 20.12.2021, in Special Civil Application No. 2225 of 2021 and an order dated 09.02.2023, in Special Civil Application No. 14494 of 2022, he submitted that as directed by this court, the controlling authority provided sufficient opportunity to both the parties to lead their evidence. For the date of entry into service of the workman the authority took in to consideration the document produced by them, which is part of the settlement, however, the Petitioner failed to produce any contrary evidence. The controlling authority in the order dated 25.09.2019, has observed that, no service book was produced or contrary can be proved that the Respondent was not working from 1984 and retired having attained the age of superannuation in the year 2015. Accordingly, calculation has been done. (iii) The appellate authority in the order dated 31.10.2022, while confirming the order of the controlling authority, has reiterated that the Petitioner despite opportunities failed to produce any contrary evidence in relation to the period of service with them. (iv) In support of his submissions, he relied upon the following decisions: - -- Order dated 15-12-2009 passed by the Hon’ble Supreme Court of India in Civil Appeal No. 1478 of 2004 in the case of Allahabad Bank & anr V/s All India Allahabad Bank Retired Employees Association. -- Municipal Corporation of Delhi V/s Dharam Prakash Sharma reported in 1998 (0) AIJEL-SC 18408 -- Nagar Ayukt Nagar Nigam Kanpur V/s Mujib Ullah Khan reported in 2019 (0) AIJEL-SC 63925 5. Considered the submissions. In the opinion of this Court the Petition does not require consideration on the following grounds: - (i) The order dated 20.12.2021 in Special Civil Application No. 2225 of 2021 and allied matters, on which heavy reliance is placed by learned advocate for the Petitioner does not refer to straightway application of the factual data referred by the Petitioner. The operative portion of the order reads as under: - “9. The impugned order passed by the Controlling Authority as well as the order passed by the Appellate Authority are hereby quashed and set aside. The matters are remanded back to the Controlling Authority to decide afresh. It will be open for either of the parties to provide the details with regard to the appointment of the respondent-workmen as daily wagers and their respective dates of absorption or confirmation. The matters are remanded back to the Controlling Authority to decide afresh. It will be open for either of the parties to provide the details with regard to the appointment of the respondent-workmen as daily wagers and their respective dates of absorption or confirmation. The Controlling Authority shall pass appropriate orders with regard to their entitlement as per the provisions of the Payment of Gratuity Act from the dates of their engagement as daily wagers till the date of their regularization. Such order shall be passed within a period of three months from the date of receipt of this order (ii). The above observation, in opinion of this court, is made in the context of the facts recorded in para 7 and 8 of the very same judgement, in Special Civil Application No. 2225 of 2021, which reads as under; “7. The aforesaid chart reveals that all the workmen had initially worked as daily wagers and after rendering particular number of years service (seven years or ten years), they were regularised and made permanent. It is not in dispute that the petitioner-Municipality has paid gratuity as per the provisions of the Gujarat Civil Services Rules, 2002 for the period for which they have rendered their services as a regular employees. Thus, the date from the workmen till they had retired, the Municipality had paid gratuity amount as per the provisions of Gujarat Civil Services Rules, 2002. The same is not denied. However, the dispute pertains to awarding of gratuity to the workmen prior to they have been regularised in service and for the service on which they are engaged as daily wagers…. XXXX 8. The Division Bench has confirmed the judgment and order passed by the Single Judge Bench and clarified that the employees are entitled to gratuity under the Payment of Gratuity Act, also for the period they worked as daily wagers till they are made permanent, and thereafter they would be entitled for the gratuity under the provisions of the Gujarat Civil Service (Pension) Rules, 2002 after they have made permanent. Since the facts or data with regard to the appointments of the respondent-workmen and the date of their regularization was not placed before the Controlling Authority, it would be appropriate that these matters are remanded back to the Controlling Authority for deciding afresh, in the light of the observations made by this Court.” (iii) Thus, this court recorded the fact that, it is not in dispute that the Petitioner- Municipality has paid gratuity as per the provisions of the Gujarat Civil Service Rules, 2002, for the period the respondent workman rendered services as regular employee. However, the dispute pertains to awarding of gratuity to the workman for the period prior to their regularization of service and for the service when the Respondent was engaged as daily wager. Therefore, with the remand to the controlling authority, opportunity was given to both the parties to provide the details with regard to the appointment of the respondent- workman as daily wager and the respective dates of absorption or confirmation. (iv) Reading of the decision dated 20.12.2021, it is clear that this Court no where directed the straight application of data as referred in para 5 of the said judgment. Therefore, I do not see any error in the findings recorded by both the authorities in their orders, that despite opportunities no data other than the data provided by the respondent-workman, for the date of joining as daily wager was produced or available. (v). Most importantly, in the decision of this court in Special Civil Application No. 2225 of 2021, after placing reliance on the decision in Letter Patent Appeal No. 1195 of 2017, it is held as under: “9. Having considered the judgement rendered in Letters Patent Appeal No. 1195 of 2017, relevant portion of which is reproduced hereinabove, we are of the opinion that the view taken by the Controlling Authority and confirmed by the Appellate Authority as well as the learned Single Judge do not require interference. The provisions of the Payment of Gratuity Act make no distinction between a regular employee and a daily wager. There is no specific provision that daily wagers are not entitled to the payment of gratuity. Considering the provisions of the Payment of Gratuity Act, 1972 particularly Sections 3 to 5 and 14, it can very well be seen that the provisions of the Act shall have effect notwithstanding anything inconsistent with any other enactments. There is no specific provision that daily wagers are not entitled to the payment of gratuity. Considering the provisions of the Payment of Gratuity Act, 1972 particularly Sections 3 to 5 and 14, it can very well be seen that the provisions of the Act shall have effect notwithstanding anything inconsistent with any other enactments. The submission therefore made by learned counsel for the respective appellants that once having earned the gratuity under the relevant provisions of Gujarat Civil Service (Pension) Rules, 2002, the period rendered prior to such regularization and claimed under such rules would disentitle such employee from claiming gratuity under the Gratuity Act as a daily wager cannot be sustained.”” (vi) It may be of relevance to refer to the definition of Employee under Section 2(e) which reads as under: "2. …. (e) “employee” means any person (other than an apprentice) employed on wages, 4 [***] 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, 5 [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]” (vii) Under section 4, Gratuity shall be payable to an employee after he has rendered continuous service for not less than 5 years. Section 4 of the of the Act reads as under: - “4. Payment of gratuity. Section 4 of the of the Act reads as under: - “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.] (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account. Provided further that in the case of [an employee who is employed in a seasonal establishment and who is not so employed throughout the year], the employer shall pay the gratuity at the rate of seven days wages for each season.” Therefore, neither under Section 2 nor Section 2(a), any distinction is drawn between the temporary employee or a permanent employee. Continuous service is required for a period as uninterrupted service. Therefore, even under Section 4, gratuity shall be payable to an employee defined under Section 2 who has rendered continuous service defined under Section 2 (a) without any distinction. Continuous service is required for a period as uninterrupted service. Therefore, even under Section 4, gratuity shall be payable to an employee defined under Section 2 who has rendered continuous service defined under Section 2 (a) without any distinction. (viii) Thus, as per section 4(1), the employee is to be paid gratuity upon completion of five years of service, in case of the contingencies referred in clause (a), (b) or (c). Sub section (2) of section 4 of the Act, provides for the amount of gratuity the employer shall have to pay to the employee. The first proviso to sub section (2) of section 4 provides for computation of payment of gratuity to the piece rated employee. The second proviso to sub section (2), of Section 4, provides for computation of payment of gratuity in case of employee who was employed for seasonal work or who was not employed throughout the year. 6. In my opinion, none of the proviso to subsection (2) to Section 4, envisages different computation of payment of gratuity for daily wage employee. Therefore, the contention of learned counsel for the Petitioner that for daily wage employee, different computation is required is not correct. The controlling authority as well as the Appellate Authority, therefore, are correct in holding that for the period the workman was engaged as daily wager, the gratuity is to be computed under section 4 (1), of the Act. Hence, the amount paid by the Petitioner towards gratuity was deducted and balance amount was directed to be paid. 7. Therefore, there is no illegality or infirmity in the order passed by both the authorities - controlling and appellate, which warrant interference of this Court. The petition therefore deserves to be rejected, and hence is accordingly rejected with no order as to cost. 8. At this stage I would like to observe that the remarks of the appellate authority that the Municipality by one or the other litigation is trying to delay the payment of gratuity to the respondent, appears to be correct.