An employee’s eligibility for gratuity under the Payment of Gratuity Act requires lawful employment; secondary employment, if obtained unlawfully, inhibits gratuity claims.

ORDER :

ANANT RAMANATH HEGDE, J.

Petitioner is assailing the order passed by the second respondent - the Controlling Authority and also the order passed by the Assistant Commissioner-cum-Appellate Authority, both orders passed under the Payment of Gratuity Act, 1972 (‘Act, 1972’).

2. The Appellate Authority dismissed the petitioner’s appeal and confirmed the order passed by the Controlling Authority. In terms of the order dated 20.03.2019, the Controlling Authority directed the petitioner to pay Rs.1,74,574/- towards gratuity along with interest @10% per annum from 16.03.2018 till payment.

3. Learned counsel appearing for the petitioner taking through the facts of the case would submit that First respondent/employee was working in a college run by the petitioner. Said institution is admitted to grant-in- aid. First respondent was appointed in 1979 to a post which was admitted to grant-in-aid. After the retirement, first respondent received all the retirement benefits including the retirement gratuity, payable to an employee in an aided institution appointed in an aided post, as per the applicable Rules.

4. Learned counsel further submits that the petitioner institution is also running an unaided evening college, and in the said college, first respondent was appointed in 1988 to work as Office Assistant and he was paid a consolidated salary. All the salary payable to him for his employment in the evening college has been settled. However, first respondent, though ineligible to claim the gratuity for the employment in the unaided evening college, claimed gratuity in respect of said employment in the evening college. The Controlling Authority passed an order directing payment of gratuity and the Appellate Authority dismissed the appeal on the ground of limitation.

5. Learned counsel for the petitioner assailing the aforementioned two orders would contend that first respondent who was simultaneously employed by the petitioner, in the day college, and in the evening college (after the working hours in the day college against the aided post) is not eligible to claim gratuity in respect of the employment in the evening college as first respondent has received the full retirement benefit from his regular employment in the aided post.

6. It is urged on behalf of the petitioner that the employment in the evening college which is unaided, does not confer the benefit under the Act, 1972 as the gratuity under the Act, 1972 can be paid to only those employees whose employment is lawful. It is urged that the employment secured in 1988, in the evening college is not lawful as first respondent was already employed in the day college in an aided post and he could not have taken second employment in the evening college.

7. Learned counsel for the petitioner would urge that under the Karnataka Civil Services (Conduct) Rules, 1966 government servant is prohibited from taking any other employment as such second employment is void ab initio. Referring to the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 it is urged that the employee in a private educational institution was governed by the said Act. The aforementioned Act