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2001 Supreme(Guj) 283
Gujarat High Court
Judgename :D.C.Srivastava
MUNICIPAL CORPORATION OF AHMEDABAD - Appellant
Versus
ELLVINA samualbhai CHRISTIAN - Respondent
.
Decided On : 05/01/2001
Headnote:
Ahmedabad Municipal Corporation – Facts giving rise to this petition are as under : the respondent was serving as Health Visitor in the New Chest Clinic - t. B. Hospital owned by the petitioner. One was In-charge of this hospital employees suffering from chest disease are entitled to have certificate of the Medical Officer in-charge of Chest Clinic. One complained the Deputy Municipal Commissioner regarding demand of rs. 300-00 as illegal gratification by the respondent to have a certificate of that the said person was suffering from Tuberculosis. A trap was arranged for the respondent and trap proved successful. As a consequence thereof, the Deputy Municipal Commissioner appointed one Inquiry Officer. During enquiry, all the charges were established against the respondent. Enquiry report was submitted greeing with the Enquiry Officer, the disciplinary authority issued show-cause notice to the respondent as to why she should not be dismissed from service meantime respondent filed Civil Suit against the show-cause notice –Held, drawn my attention and contended that, since the respondent was not dismissed from service nor terminated from service, she is not entitled to gratuity. According to him, the respondent has not completed continuous service. However, the word continuous service within the meaning of Sec and Act means continuous service for not less than five years nothing on record to show that the respondent did not complete continuous service for a period of five years – Gratuity becomes payable on superannuation or on retirement or on resignation or on death of the employee or on his disablement due to accident or disease. It is difficult to interpret services of an employee have been terminated after holding departmental proceedings, he loses his or her rights to receive gratuity – Petition fails and is hereby dismissed.
( 1 ) AHMEDABAD Municipal Corporation, the petitioner of this petition has challenged the order of the Controlling Authority under the payment of Gratuity Act, 1972 Annexure-a and also order of the Appellate authority Annexure-b dated 5-7-2000 confirming the order of the Controlling authority.
( 2 ) THE brief facts giving rise to this petition are as under : the respondent was serving as Health Visitor in the New Chest Clinic - t. B. Hospital owned by the petitioner. One Dr. Deshpande was In-charge of this hospital. The employees suffering from chest disease are entitled to have certificate of the Medical Officer in-charge of Chest Clinic. One Shri Mahendra parikh complained the Deputy Municipal Commissioner regarding demand of rs. 300-00 as illegal gratification by the respondent to have a certificate of dr. Deshpande that the said person was suffering from Tuberculosis. A trap was arranged for the respondent and Dr. Deshpande on 18-12-1991. The trap proved successful. As a consequence thereof, the Deputy Municipal Commissioner appointed one Shri D. B. Dixit as Inquiry Officer. During enquiry, all the charges were established against the respondent. Enquiry report was submitted on 28-2-1994. Agreeing with the Enquiry Officer, the disciplinary authority issued show-cause notice to the respondent as to why she should not be dismissed from service. In the meantime, the respondent filed Civil Suit Nos. 4267 of 1994 and 6563 of 1994 against the show-cause notice.
( 3 ) THE Civil Court passed an order that, the order of punishment if any passed, would not be implemented by the petitioner for 15 days from the date of service. On 8-11-1995, the respondent was dismissed from the service. Thereafter, she filed Civil Suit No. 6397 of 1995 in the City Civil Court, ahmedabad. Interim Order was passed by the Civil Court directing the parties to maintain status quo. Under the garb of this order, the respondent continued in service till 31-5-1998 and she reached the age of superannuation. Accordingly, she retired on attaining the age of superannuation. She approached the Controlling authority under the Payment of Gratuity Act complaining that she was not paid gratuity, despite the fact that the petitioner did not pass any order for forfeiture of gratuity. The Controlling Authority vide order dated 4-1-1999 allowed the application and directed the petitioner to pay Rs. One lakh as gratuity to the respondent. This order was modified by the Controlling Authority on 16-2-1999 by enhancing the gratuity amount to Rs. 1,17,900-00 Annexure-a collectively.
( 4 ) FEELING aggrieved, the petitioner preferred appeal, which was heard and dismissed by the appellate authority vide Annexure-b. These two orders are under challenge in this writ petition.
( 5 ) THE contention of Shri M. B. Gandhi for the respondent has been that, since the orders of the two authorities below are nothing but findings of facts, hence, no interference under Art. 227 of the Constitution of India is required. However, after going through the two impugned orders, I feel that detailed reasons have not been given for granting gratuity to the respondent. As such, the matter has to be examined afresh in the light of legal provisions contained in the Payment of Gratuity Act.
( 6 ) SHRI Gandhi also contended that the plea of bar of limitation in filing appeal was raised before the appellate authority, but it was not discussed, nor any finding was given. On the other hand, only casual mention of this objection was noted in the appellate order. However, since, Shri Gandhi has not challenged the order of the appellate authority, his objection loses its significance. It also looses significance because the order of the appellate authority is in favour of the respondent.
( 7 ) SHRI K. I. Patel, learned Counsel for the petitioner has vehemently argued that no occasion arose to the petitioner to order forfeiture of gratuity because of order of status quo passed by the City Civ
