Entitlement to enhanced rate of gratuity under Exhibit P-2 Clause 3(b) is determined by completing 10 years of service as per the specific language of the provision.

JUDGMENT :

K. Narayana Kurup, J.—The prayer in this original petition is for the issuance of a writ of certiorari to quash Exhibit P-5 communication of the second respondent addressed to the petitioner and for the issuance of a writ of mandamus commanding the respondents to pay the amount due to the petitioner being gratuity as per item 3(b) of Exhibit P-2 and for other incidental reliefs.

2. The facts of the case are as follows: The petitioner joined the first respondent, the Kerala State Electronics Development Corporation Ltd. (for short "the Corporation") as an Accounts Manager, on June 26, 1979. He was promoted as Finance Manager in the corporate head office during 1981. Thereafter, the post was redesignated as Finance Controller and he was promoted to general manager's grade with effect from April 1, 1983. The petitioner was given additional charge as Company Secretary with effect from April 19, 1983. Again, in May, 1988, the post of Company Secretary was redesignated as Executive Director (Finance and Accounts) and Company Secretary. He retired as Executive Director and Company Secretary on March 31, 1989. Thus, he has a continuous service of nine years and 279 days. At the time of his retirement, the petitioner was drawing a monthly salary of Rs. 5, 168.

Learned counsel appearing for the petitioner submits that the Corporation has introduced Exhibit P-1 gratuity scheme. Clause 3(1) of Exhibit P-1 scheme deals with eligibility of gratuity which provides as follows:

"3. (1) An employee shall be eligible to receive gratuity from the employer as per these rules on his leaving the service of the company if he has rendered continuous service for a period of not less than five years with the employer. This will be paid on death/superannuation/retirement or on leaving the services of the employer. The payments will be made as per Schedule I".

The relevant provision of Schedule I of Exhibit P-1 scheme with which we are concerned is extracted below:

Superannuation/retirement in cases not covered by (2) above

(a) After 15 years of continuous service

At the rate of one month's eligible salary at the time of retirement/superannuation for each completed year of service subject to a limit of 20 months' salary.

(b) Above 10 years but below 15 years

75% of the sum calculated as in (a) above.

(c) Above 5 years but below 10 years

50% of the sum calculated as in (a) above.

Under Exhibit P-1, "year" is defined to mean a period of 365 days and in the case of fraction of a year, a continuous period of 183 days or more. Since the petitioner has 9 years and 279 days service, he must be taken to have put in 10 years of service as on the date of his retirement. So, by applying the provisions of Clause (3), Sub-clause (b) of the Schedule, the petitioner is not entitled to claim 75% of one month's eligible salary for each completed year of service because he has not to his credit above 10 years of service. Going by Exhibit P-1, the petitioner can come in only under Clause 3(c) of the Schedule thereto, namely, above 5 years but below 10 years, which entitles the petitioner only to 50% of one month's eligible salary for each completed year of service. But it is the petitioner's specific case that Exhibit P-1 was subsequently amended by the Corporation substituting it with Exhibit P-2. Exhibit P-2 is dated January 30, 1989. Clause 3 of Schedule I to the gratuity scheme before the amendment and after the amendment is as follows:

Before the amendment

3(a) After 15 years of continuous service

(b) Above 10 years but below 15 years

(c) Above 5 years but below 10 years

After the amendment

3(a) 15 years of continuous service and above

(b) 10 years and above but below 15 years

(c) 5 years and above but below 10 years

5. Based on Exhibit P-2, the petitioner submits that his case will come squarely under Clause 3(b) thereof. The phraseology used in Clause 3(b) of Exhibit P-2 is 10 years and above but below 15 years (and not above 10 years as in Exhibit P-1) in which case the peti