Decided in Favour of :
Appellant
Petition Allowed

H.K. Rathod, J.—Heard learned advocate Ms. Jirga D. Jhaveri for the petitioner Nagarpalika and learned Advocate Mr. A.K. Clerk for respondents workmen.

2. In all these petitions, the petitioner-Bilimora Nagarpalika has challenged the order passed by the controlling authority under the Payment of Gratuity Act, 1972 (for short “the Act”). The respondents workmen in each petition approach the controlling authority claiming the amount of gratuity under the Act and in those applications, the controlling authority has decided that workmen are entitled to amount of gratuity according the provisions of the Act. Accordingly, the controlling authority has calculated the amount and directed the petitioner Nagarpalika to pay the amount of gratuity to the concerned employees with 12% interest within a period of 30 days from the date of receipt of order from the controlling authority.

3. Learned Advocate Ms. Jhaveri appearing on behalf of petitioner Nagarpalika submitted that Section 2(e) of the Act provides definition of “employee”. She further submitted that the Nagarpalika is having its own gratuity rules, therefore, the provisions of the Act are not applicable to the concerned employees. The Rules framed by the petitioner Nagarpalika have been approved by the State Government as per Annexure-B to the petition. She relied upon Rule-5 which provides the mode of calculation of the amount of gratuity to the concerned employee. According to her, as per the Rules, the amount of gratuity is paid to the concerned employee. Therefore, no payment is to be made by petitioner to the concerned employees. She also raised contention that petitioner Nagarpalika being a local authority and therefore, provisions of the Act are not applicable. She also submitted that the controlling authority has not considered the Gratuity Rules which are at Annexure-B and relying upon the provisions of the Act, the controlling authority decided the issue against the petitioner Nagarpalika. Section 2(e) of the Act reads as under :

“2(e) “employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, (and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity”).

3.1 She also relied upon the decision of this Court (Coram : R.M. Doshit, J.) passed in SCA No. 18365 of 2006 dated 05.12.2006 wherein this Court has observed that “Be that as it may, I am of the view that the impugned judgment and order passed by the controlling authority is wholly without the jurisdiction and the authority of law. The present petition preferred under Article 226 of the Constitution of India is maintainable. There is no dispute that the respondent is a member of the Panchayat Service and thus the servant of the State Government. It is also not in dispute that a Government servant in Panchayat service is governed by the specific rules made in that behalf by the State Government. Hence, the provisions contained in the Act of 1972 shall not apply in the case of the respondent. It is apparent that the controlling authority has failed to consider and decide this vital issue which goes to the root of its jurisdiction. As the respondent is not governed by the Act of 1972, the controlling authority had no jurisdiction or authority of law to entertain the claim made by the respondent. The impugned judgment and order are thus passed by the controlling authority without the authority of law and are vitiated by inherent lack of jurisdiction”.

3.2 Learned Advocate Ms. Jhaveri also submitted that concerned employees are governed by separate gra