( 1 ) HEARD the learned advocate, Ms. Krishna Raval, appearing on behalf of petitioner.

( 2 ) THE petitioner - Deputy Executive Engineer (R and B) Department, Surendranagar District Panchayat, has challenged the order passed by the Controlling Authority in Gratuity Application No. 8 of 2006 dated 24. 4. 2006. The Controlling Authority, Surendranagar has directed to the petitioner to pay Rs. 36,672/- with 10% simple interest w. e. f. 14. 12. 2005. That order has been challenged in Appeal before the appellate authority being Appeal No. 56 of 2006 dated 6. 10. 2006, whereby, the order passed by the Controlling Authority has been confirmed by appellate authority.

( 3 ) LEARNED advocate, Ms. Krishna Raval, raised first contention that respondent is not an employee within the meaning of Section 2 (e) of the Gratuity Act,1972 and second contention is that Gratuity Act is not applicable to the petitioner. She relied upon the decision of the Apex Court in case of Union of India and Anr. v. Manik Lal Banerjee reported in (2006) 9 SCCC 643. She also submitted that Railway employees are not governed by Payment of Gratuity Act in view of Section 2 (e) thereof, because such employees are governed by the Railway Service and Pension Rules. The Apex Court has considered that Rule 70 to Railway servant provides for payment of gratuity. Rule 49 of the said Rules provides for the manner in which emoluments of such an employee should be calculated. ?pay? in those Rules means the pay in the revised scales under the Fourth Pay Commission Report.

( 4 ) I have considered the contentions raised by learned advocate, Ms. Raval. The service of the respondent was terminated on 11. 9. 2002. The respondent was working as daily rated helper. He remained absent as he was detained in custody. Therefore, his service was terminated. He was appointed as daily wager helper on 21. 1. 1979 and his service was terminated on 11. 9. 2002 but, the amount of gratuity was not paid to him and, therefore, respondent approached to the Controlling Authority. The amount of gratuity claimed by respondent is Rs. 56,000/ -. According to the petitioner, pension is not available to the respondent because he was daily wager helper. No doubt, he had completed 19 years service with the petitioner. His basic salary was Rs. 2900/- + dearness allowance Rs. 1073/-, the total of which comes to Rs. 3973/ -. There was no dispute between the parties about date of joining in service and date of termination and last wages received by the respondent which comes to Rs. 3973/ -. The Controlling Authority come to the conclusion that under Section 1 sub-section (3) by Notification w. e. f. 1982, this Act has been made applicable to the local bodies and, therefore, the Act is applicable to the petitioner. Considering the definition of employee under Section 2 (e) means any person employed on wages in any establishment to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, is considered to be an employee. When specific notification is there against the petitioner and in light of daily wager helper, respondent is satisfying the definition of Section 2 (e) and, therefore, he is covered by definition of ?employee?. Therefore, considering the last wages received by the respondent, the Controlling Authority has accordingly directed to the petitioner to pay Rs. 36,675/- w. e. f. 14. 12. 2005 with 10% simple interest. The appellate authority has also considered the contention raised by the petitioner in Page. 19 Para. 1 to 4. The appellate authority has also considered that under Section 1 Sub-Section (3), the petitioner is covered by the Notification issued by the Central Government. The post of Helper covered under Section 2 (e) as an employee. According to appellate authority, once the Gratuity Act is made applicable, it is a duty of the petitioner to pay the amount of gratuity to the respondent for the pe

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