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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Bhargav D. Karia, J.
Rasulbhai Umarbhai Malek – Petitioner
Versus
Director Of Municipalities & others – Respondents
R/Special Civil Application No. 12554 of 2004
Decided On : 06-10-2021
Constitution of India,1950 – Article 148 and 309(5) - Payment of Gratuity Act, 1972 - Claim of gratuity - Termination dues – Pension - Petitioner was appointed as a driver with respondent-Municipality and on reaching age of superannuation, petitioner retired from service with effect - It is the case of petitioner that after retirement of petitioner, he was not paid termination dues including gratuity and pension - Petitioner approached Controlling Authority under Payment of Gratuity Act, 1972 for claim of gratuity amount which was allowed vide order - Respondent did not pay amount of gratuity simple interest as per the order passed by the Controlling Authority - Petitioner obtained certificate for recovery and thereafter preferred Special Civil Application - This Court while disposing of Special Civil Application directed respondents to release payment of gratuity amount to petitioner which was subsequently paid to petitioner - Whether the petitioner was on daily wage establishment.
Finding of the court : This Court of opinion that for all practical purposes, workmen were permanent from date they entered into service and it was merely a formal declaration by Tribunal that they were given permanency benefit with effect and financial benefits - This Court is of the opinion that benefit of Resolution must flow to present petitioners - Learned advocate also submitted that Nagarpalika has submitted cases of workmen in SCA to Government and Government has rejected their case for grant of benefits of 1994 Resolution - Moreover, in facts of case, similarly situated daily wage drivers, were also granted benefits of regular employee on completion of one year of service.
Result: Petition allowed.
JUDGMENT :
1. The petitioner has prayed for pension benefits on the ground that he has been granted gratuity for the services rendered by him.
2. The petitioner was appointed as a driver with respondent-Municipality in the year 1982 and on reaching the age of superannuation, the petitioner retired from service with effect from 14.5.2000.
3. It is the case of the petitioner that after retirement of the petitioner, he was not paid the termination dues including gratuity and pension. The petitioner approached the Controlling Authority under the Payment of Gratuity Act, 1972 for claim of gratuity amount which was allowed vide order dated 16.4.2001.
4. However respondent Nagarpalika did not pay the amount of gratuity of Rs.49,461.30 with 10% simple interest from 14.5.2000 as per the order passed by the Controlling Authority. The petitioner therefore, obtained certificate for recovery and thereafter preferred Special Civil Application No.7311/2001. This Court while disposing of the Special Civil Application directed the respondents to release the payment of gratuity amount to the petitioner which was subsequently paid to the petitioner.
5. Respondent Nagarpalika however did not grant the pension of the petitioner for his services from 1982 to 2000 which is almost for 18 years. The petitioner therefore, again made representation on 19.2.2004 before the respondents by issuing notice from advocate as no response was given by the respondent Nagarpalika for grant of retirement dues including pension to the petitioner. The petitioner has thereafter, approached this Court with a prayer to direct the respondent Nagarpalika to pay the pension of the petitioner along with other retirement dues.
6. It appears that during the pendency of the petition, this Court (Coram : Hon’ble Mr. Justice Mohinder Pal, As His Lordship was then) passed the following order on 22.02.2018 :
“The learned advocate for the respondent no. 2 has prayed for short adjournment to collect the instruction with respect to claim of the petitioner regarding pensionary benefit as the learned advocate for the petitioner has pointed out from the material on record that the petitioner has been paid amount of gratuity, considering his total period of services i.e. 18 years. Considering the request made by Mr. Sanjay M. Amin, learned advocate for the respondent no. 2, list again on 06.04.2017.
2. Perusal of the aforementioned order shows that the learned counsel for the respondent Nagarpalika was required to take instructions regarding the payment of pensionary benefits. However, no such instructions has been brought to the notice of this Court, rather learned counsel has abstained from appearing in this Court when this matter is taken up.
3. In view of these circumstances, the relief claimed by the petitioner is granted. The petitioner is held entitled to the pension and other benefits. Accordingly, prayer contained in para- 8(A) is allowed. The petitioner is further entitled to the interest at the rate of 9% from the date of his retirement till the actual payment is made. The required formalities will be completed within a period of four weeks from the date of receipt of the copy of this order. Rule is made absolute. Direct service permitted.”
7. Being aggrieved by the aforesaid order, Letters Patent Appeal No. 1127/2008 was filed which was disposed of by the Division Bench of this Court (Coram : Hon’ble the Acting Chief Justice Anant S. Dave (As His Lordship was then) and Hon’ble Mr. Justice Biren Vaishnav) vide order dated 1.3.2019 remanding the matter back as under :
2. The challenge by the appellant is to the order and direction of gran
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