JUDGMENT : Harisankar V. Menon, J. The petitioner in these writ petitions is challenging Ext.P8 appellate orders issued by the 2nd respondent in these cases, by which the appeals filed by the petitioner against the proceedings of the 1st respondent stood dismissed. 2. The short facts, necessary for the disposal of these writ petitions, as culled out from W.P.(C) No.35210 of 2019, are as under; The 3rd respondent in this writ petition was working as a Janatha Deposit Collector essentially on a commission basis from 24.01.1980. It is pointed out that the petitioner Bank discontinued the Janatha Deposit Scheme summarily in the year 2010. On account of such discontinuance, the employees like the 3rd respondent herein were to be retrenched. A settlement was also arrived at between the Bank and similarly placed Janatha Deposit Collectors, as evidenced by Ext.P1. Under the terms of the settlement, it has been specifically recorded at serial No.2 as under; “2. The bank will discontinue the Janatha Deposit Scheme from 31.08.2010. The Janatha Deposit Collectors below the age of 60 years shall be offered fresh appointment as peons and others will be discontinued. All service benefits due to Janatha Deposit Collectors as per the supreme judgment as on the date of winding up of the Scheme will be paid to them.” (underlining supplied) Thus it is recorded that the Scheme would come to an end on account of the discontinuance from 31.08.2010 and those Janatha Deposit Collectors who were below the age of 60 years, would be offered ‘fresh appointment’ as peons and those who have already crossed the age of 60 would be discontinued from service. There is a further Clause to the effect that whatever service benefits available to the Janatha Deposit Collectors till that date-31.08.2010-would be extended pursuant to the directions contained in the judgment of the Apex Court. On the afore basis, the 3rd respondents herein was offered an appointment as peon and he was also appointed pursuant to Ext.P2 proceedings dated 19.08.2010 by the petitioner Bank. A reference to Clause (k) of Ext.P2 would show that the 3rd respondent was placed on 'probation for a period of six months' which is liable to be extended for a further period of three months. The said Clause also speaks about the confirmation of the 3rd respondent in the Bank service at the end of the probation period. A reference to Clause (k) of Ext.P2 would show that the 3rd respondent was placed on 'probation for a period of six months' which is liable to be extended for a further period of three months. The said Clause also speaks about the confirmation of the 3rd respondent in the Bank service at the end of the probation period. The petitioner Bank also points out that the 3rd respondent was paid the gratuity payable to him quantified at Rs.88,424/- as evidenced by Ext.P3. 3. However, it appears that upon the superannuation of the 3rd respondent as peon on 30.09.2014, the 3rd respondent took a stand that he was eligible for the gratuity payable under the Payment of Gratuity Act, 1972 (for short 'the Act') for the entire period when he was in service with the petitioner Bank - the period from 24.01.1980 to 31.08.2010 and the period when he worked as peon pursuant to Ext.P2. The petitioner Bank on the contrary took the stand that whatever gratuity payable for the initial innings, was already paid pursuant to Ext.P3 and as regards the subsequent innings when the 3rd respondent worked as the peon, he is not entitled for any gratuity since the total period he worked as peon was below the minimum eligible period required for the benefits under the said statute. 4. In such circumstances, the 3rd respondent preferred a claim before the 1st respondent herein and by Ext.P6 order dated 27.02.2018, the 1st respondent came to the conclusion that the stand of the 3rd respondent is to be accepted. The 1st respondent therefore issued the order at Ext.P6 directing the petitioner herein to satisfy a total amount of Rs.2,14,491/- towards gratuity for the entire period of 35 years, after reducing the amount already paid as evidenced by Ext.P3. 5. Though a further appeal was preferred by the petitioner against the afore finding, the appeal stood rejected by Ext.P8 order by the 2nd respondent herein. The facts in the second writ petition is also identical. 6. It is in the afore circumstances, the petitioner has filed these writ petitions challenging the orders of respondents 1 and 2 herein. 7. I have heard Sri.P. Ramakrishnan, learned Counsel for the petitioner and Sri. Nidhi Balakrishnan, learned Counsel appearing for the 3rd respondent in these writ petitions. 8. Sri. 6. It is in the afore circumstances, the petitioner has filed these writ petitions challenging the orders of respondents 1 and 2 herein. 7. I have heard Sri.P. Ramakrishnan, learned Counsel for the petitioner and Sri. Nidhi Balakrishnan, learned Counsel appearing for the 3rd respondent in these writ petitions. 8. Sri. Ramakrishnan, learned Counsel for the petitioner would contend that the findings in Exts.P6 and P8 issued by respondents 1 and 2 respectively have been rendered, without having any reference to the settlement at Exts.P1 as well as the appointment orders at Ext.P2. He would also point out that the findings in Exts.P6 and P8 that the 3rd respondents were entitled to reckon the period of the initial service as Deposit Collectors also, for reckoning the eligibility for the receipt of the benefits under the Act, are without any basis. He also relies on the judgment of the Apex Court in Indian Bank Association v. Workmen of Syndicate Bank and Others [ (2001) 3 SCC 36 ] referred to in Ext.P1 settlement as also the judgment of this Court in Executive Engineer v. Sankara Pillai [1981 KHC 462]. 9. Per contra, Sri. Nidhi Balakrishnan, learned Counsel for the 3rd respondent would point out with reference to the findings in Ext.P6 that the petitioner is not able to establish their contentions before respondents 1 and 2 and it is on that basis, the payments were directed to be effected by the said respondents. 10. I have considered the rival contentions and the connected records. 11. The short issue arising for consideration in these writ petitions is as to whether the 3rd respondents are entitled to reckon the period of their initial innings as Janatha Deposit Collectors also while reckoning their eligibility for the benefit under the Act. 12. The admitted facts are that the 3rd respondents in these writ petitions initially worked in the petitioner Bank as Janatha Deposit Collectors. They have been specifically appointed as peons during 2010, pursuant to the discontinuance of the Scheme as well as the settlement arrived at between the Bank and the employees. In such circumstances, the appointment of the 3rd respondent is to be seen with reference to the terms of the settlement as well as the orders of appointment. As already noticed, Ext.P1 terms of settlement specifically provides that the 3rd respondent in these writ petitions have been offered 'fresh appointment' as peons. In such circumstances, the appointment of the 3rd respondent is to be seen with reference to the terms of the settlement as well as the orders of appointment. As already noticed, Ext.P1 terms of settlement specifically provides that the 3rd respondent in these writ petitions have been offered 'fresh appointment' as peons. The fact that such appointment was a 'fresh appointment', not having any connection with the previous service with the Bank is clear from Clause (k) of the appointment order, placing the 3rd respondents in these writ petitions on 'probation'. The fact that they were placed on 'probation' and subsequently confirmed also shows that the appointment was only as a case of 'fresh appointment'. It is further noticed that the 1st respondent issued Ext.P6 order, without making any reference to the afore conditions in Ext.P1 and Ext.P2. The findings rendered in Ext.P6, in such circumstances, cannot be sustained. 13. At this juncture, I also notice the judgment cited by Sri. Ramakrishnan in Indian Banks Association (supra). That was also a case where those workmen who were employed as the Deposit Collectors in Banks, were claiming that upon their appointment as peons, they should be paid the salary with reference to the pay of scales, allowances and other service conditions as available to those who have been appointed on a regular basis. However, the bank took up a contention that there is a substantial difference between the work carried on by the Janatha Deposit Collectors and those who have been appointed on a regular basis. Considering these contentions, the Apex Court in paragraph 28 has laid down the following; “Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen, No such demand had been made and, therefore, there could have been no such direction. Such direction were beyond the reference. Even otherwise, the question of absorption would be fully covered by an authority of this Court in the case of Union of India & Ors. v. K.V. Baby & Anr., reported in (1999) 1 LLJ 1290 . In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. v. K.V. Baby & Anr., reported in (1999) 1 LLJ 1290 . In this case it has been held that persons who are engaged on the basis of individual contracts to work on commission basis cannot be equated with regular employees doing similar work. It has been held that the mode of selection and qualifications are not comparable with those of the employees, even though the employees may be doing similar works. In the present case, not only are the modes of selection and qualifications not comparable, but even the work is not comparable. The work which the Deposit Collectors do is completely different from the work which the regular employees do. There was thus no question of absorption and there was also no question of the Deposit Collectors being paid the same pay scales, allowances and other service conditions of the regular employees of the banks.” In the light of the above, I am of the opinion that the 3rd respondents in these writ petitions are not justified in contending that their service as Janatha Deposit Collectors initially also ought to be reckoned for the eligibility under the statute. 14. Furthermore, I also notice the judgment of this Court in Executive Engineer v. Sankara Pillai [1981 KHC 462], which considered a similar claim by the workman. The facts of the case as noticed in paragraph 2 of the said judgment is as under; “The writ petitioner was admittedly working as a casual labourer under the Southern Railway Administration during the period from 29th April 1954 till 16th June 1975. Consequent on which his having been found suitable for absorption in regular service after screening, the writ petitioner was appointed as temporary Lascar as per the order Ext. R1, dated 17th June 1975 passed by the Executive Engineer (Construction), Southern Railway, Quilon 1st respondent. The writ petitioner assumed charge as temporary Lascar on the same date. He retired from service on superannuation on 31st May 1976, after having served only for a short period of 1 year, 6 months and 15 days as temporary Lascar. On a representation having been made by the writ petitioner to the Railway Administration for payment of gratuity, he was informed that he was not eligible to receive such payment in view of the provision contained in R.104 of Chap. On a representation having been made by the writ petitioner to the Railway Administration for payment of gratuity, he was informed that he was not eligible to receive such payment in view of the provision contained in R.104 of Chap. 1 of the Manual of Railway Pension Rules, 1950 insisting on a minimum of three years' service as a condition prerequisite for eligibility of gratuity in respect of temporary railway servants.” On the above facts, this Court considered a similar claim made by the workman and decided the issue against the workman finding as under; “It is contended on behalf of the appellants that because the writ petitioner was absorbed as a temporary Lascar while functioning as a casual labourer, there was no break at all in his service and no termination of service could be said to be implied in his absorption as regular employee. We are unable to accept this contention. A casual labourer is not in the service of the Railway at all in any strict or real sense. The petitioner became a railway servant only when he was appointed as temporary Lascar under the order Ext. R1. In accepting that appointment he had necessarily to forsake or abandon his status as a casual labourer and that involved a severance of the nexus that existed between himself and the Railway Administration arising out of his continuous casual employment. It is true that there was no order passed or even any overt action taken by the Railway Department terminating the status of the petitioner as casual employee. But as pointed out by the Supreme Court in State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111 "termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced". A termination of the relationship arising out of casual employment took place when the petitioner was offered appointment as temporary Lascar under the order Ext. R1 and the said offer was accepted by him on 17th June 1975. The expression 'retirement' as defined in S.2(q) in the Act means termination of the service of an employee otherwise than on superannuation. Going by the said definition the writ petitioner must be taken to have 'retired' from employment as casual labourer on the date of Ext. R1 and he became entitled to claim gratuity under S.4 of the Act. The expression 'retirement' as defined in S.2(q) in the Act means termination of the service of an employee otherwise than on superannuation. Going by the said definition the writ petitioner must be taken to have 'retired' from employment as casual labourer on the date of Ext. R1 and he became entitled to claim gratuity under S.4 of the Act. The said right, which became vested in him, is not in any way affected by the reason that he has served the railway administration in the capacity of temporary Lascar for the short period of 1 year 6 months and 15 days subsequent to the date of Ext. R1, which service cannot be counted for the purpose of payment of gratuity under the Act.” 15. In the light of the above, I am of the opinion that the 3rd respondents in these writ petitions are not entitled for the benefits as claimed by them. Resultantly, Exts.P6 and P8 are set aside. However, I notice that in Ext.P6 produced in the first writ petition, there is a finding to the effect that the gratuity which was payable for the first innings as regards the 3rd respondent were with respect to 31 years of service by calculating the eligibility at Rs.4,000/- per year. In such an event, the gratuity paid to the 3rd respondent may not be correct. However, it is noticed that such a claim was not raised by the employees before respondents 1 and 2 and it is for the first time that the 1st respondent came to such a finding in the impugned order. In such a situation, I am of the opinion that the 3rd respondents are to be permitted to file an appropriate application to the petitioner bank, pointing out the facts and figures, in which event, the petitioner bank to consider the said claim and in fact, if there is any mistake in calculation of gratuity payable for the admitted period the 3rd respondents had worked as Janatha Deposit Collector, such amounts should also be paid by the Bank to the 3rd respondents. The 3rd respondents, in such circumstances, are directed to file an application within a period of four weeks from today, in which event, the petitioner Bank shall consider the same and pass appropriate orders within a period of one month thereafter. The writ petitions are disposed of as above.