Gratuity is payable upon termination of employment, including retirement, and continuous service beyond superannuation does not negate entitlement.

JUDGMENT :

1. The present petition is filed under Article 226 of the Constitution of India challenging the order passed by the learned Controlling Authority and confirmed by the learned Appellate Authority directing the present petitioner to pay the amount of Rs.1,93,140/- with 10% interest to the respondent herein.

2. It is the case of the petitioner that the petitioner is a registered Co-operative Society and working at District level at small scale, and selling seeds and fertilizers to the farmers. On 07.01.1984 the respondent No.3 was appointed as a Godown Keeper by passing the Resolution being No.7, again Resolution No.6 came to be passed in the year 2013, relieving the respondent employee on attaining the age of superannuation. Thereafter, respondent was engaged as a part-timer and has worked continuously up to year 2021. The Committee has passed further resolution No.3 on 15.12.2021 relieving the respondent No.3 from the service as a part-timer. The respondent employee preferred an application being Gratuity Application No.3 of 2022 before the learned Controlling Authority, Bhavnagar claiming the gratuity amount of Rs.1,93,140/- with 10% interest. On 19.01.2023, communication was sent to the respondent-employee for the recovery of the amount of Rs.73,633/- which is advanced salary paid to the respondent by the petitioner.

2.1. Learned Controlling Authorities had passed an order on 19.06.2023 directing the present petitioner to pay the amount of gratuity as claimed in the application. Thereafter, the learned Controlling Authority has issued the certificate on 18.07.2023 certifying the amount of Rs.2,22,111/- with interest by directing the present petitioner to pay the said amount. The petitioner has deposited the amount before the learned Controlling Authority and filed the appeal before the Appellate Authority being a Gratuity Appeal No.175 of 2023 which came to be rejected on 30.10.2023. Challenging the order passed by the learned Controlling Authority, affirmed by the learned Appellate Authority the present petition is filed.

3. Heard learned advocate Mr.Dharmesh Shah for the petitioner and learned advocate Mr.Rajesh Mankad for the respondent.

4. Though number of contentions are raised in the memo of the petition, however, the main ground assailing the order passed by the learned Controlling Authority is that the respondent attained the age of superannuation in the year 2013 and thereafter, he was engaged as a stopgap arrangement and he was serving as a part-timer upto 2021 therefore, the order passed by the learned Controlling Authority considering the service up to 2021 is erroneous and therefore, both the orders are required to be set aside and the petition is required to be allowed.

5. Per contra learned advocate Mr.Mankad appearing for the respondent has submitted that it is true that the respondent attained the age of superannuation in the year 2013, however, there is no any date fixed by the petitioner for retirement. It is submitted by the learned advocate Mr.Mankad that on completion of these 37 years of service, with a view to avoid the liability of payment of gratuity, the back dated resolution was created by the petitioner-Society to project that the resolution was passed in the year 2013, permitting the respondent to retire from the service. It is submitted by learned advocate Mr.Mankad that till date, there is no order served to the respondent, intimating the retirement from the year 2013. Learned advocate Mr.Mankad submits that so far as the contention with regard to the advance claim is concerned, receiving the communication from the petitioner, the reply was given by the respondent on 08.02.2023 and 21.02.2023 pointing out that amount which was advanced, has already been paid immediately on 05.03.2013. The receipt with regard to the same was also issued being No.1109 and 1177. It is submitted by the learned advocate Mr.Mankad that the said reply was not responded further by the petitioner. Learned advocate