Judgment

SAWANT, J. :- These two appeals - one by the Union of India and the other by the aggrieved employee - are directed against the decision dated 24th March, 1983 of the Punjab & Haryana High Court whereby the High Court has struck down Section 4(l)(b) of the Payment of Gratuity Act, 1972 [hereinafter referred to as the Act] as being violative of Article 19(l)(g) of the Constitution of India.

2. The admitted factual matrix of the case is in a narrow compass. Bakshish Singh, the appellant-employee joined the services of the respondent-M/s. Darshan Engineering Works as a Fitter on 2nd March, 1968 and resigned from service on 10th December, 1978 after a total period of continuous service of more than 10 years. His last drawn wages were Rs. 335/- per month. It is not disputed that at the time he joined the employment on 2nd March, 1968, his age was 54 years 3 months, his date of birth being 17th December, 1913. This was known to the respondent-employer.

3. The Act came into force w.e.f. 21st September, 1972. On the employees resignation w.e.f. 10th December, 1978 which was accepted by the respondent-employer, he claimed gratuity under Section 4(1)(b) of the Act. His claim not having been accepted, he approached the Controlling Authority under Section 7 of the Act. The claim was resisted by the employer on the ground firstly that the employee was entitled to gratuity only till the date he reached his superannuation age which was 58 years and since he had not completed 5 years of service by the time he attained 58 years of age, he was not entitled to gratuity under Section 4(1) of the Act. Secondly, it was contended that in any case the amount of gratuity payable to the employee was only for the period up to the superannuation age and since he was drawing wages of Rs. 230/- per month on the day he attained the superannuation age, he was entitled to a sum of Rs. 460/- only, being the gratuity calculated at the rate of 15 days salary per year of service till the date of superannuation.

4. Both the contentions were negatived by the Controlling Authority by pointing out that Section 4 (1) provided for payment of gratuity to the employee on the termination of his employment after he has rendered continuous service of not less than five years on the occurrence of any of the three events viz., (a) on the employee reaching his superannuation age, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease. In case of the third event, the qualifying continuous service of five years is not necessary. The retirement is defined by Section 2(g) of the Act to mean termination of the service of an employee otherwise than on superannuation. The first two events are independent of each other. Since in the present case the employer had not chosen to superannuate the employee on his attaining 58 years of age and had continued him in service till the employee himself resigned on l0th December, 1978 by which date he had completed more than 10 years of service the employee was entitled to the gratuity for the period of his entire service up to the date of his resignation. The Controlling Authority, therefore, calculated the amount of gratuity due to the employee as Rs. 1782/-at the rate of 15 days wages per year of service for all the 10 years taking the last drawn wages of Rs. 335/- per month as the basis of the said calculation. This order was challenged by the employer before the Appellate Authority under the Act. The Appellate Authority confirmed the finding of the Controlling Authority and dismissed the appeal. In the writ petition filed before the High Court under Articles 226 and 227 of the Constitution, the High Court confirmed the interpretation placed on Section 4 (1) of the Act by the Controlling as well as the Appellate Authority and also held that the age of superannuation is irrelevant when the gratuity is payable under clause (b) of Section 4(1) on retirement or resignation, the said clause being