Premlata Sharma vs State of M. P. - 1997 Supreme(MP) 1106

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R.R. Sharma
For the Respondent: K.B. Chaturvedi, K.K. Lahoti

Headnote:(1) Civil Services (Pension) Rules, 1976 (M.P.) – R. 44 – Payment of Gratuity Act, 1972 – S. 4 – condition of completing 5 years service for payment of gratuity under R. 44 – has been waived under S. 4 in case of death of employee.
       (2) Payment of Gratuity Act, 1972 – S. 4 – M.P. Civil Services (Pension) Rules, 1976 – R. 44 – employee dying within 5 years of service – his heirs are entitled to gratuity – condition of 5 years – not applicable in case of death.
        Short Note
       1. This letters parent appeal has been filed against the judgment and order dated 24.8.1995 passed by the learned Single Judge of this Court in Writ Petition No. 434/91, granting pensionary and other benefits to the appellant – petitioner, but the grant of gratuity has been refused.
       2. The only prayer made in this appeal shows that the learned Single Judge while refusing the entitlement of the appellant for grant of gratuity had relied upon Rule 44 (1) (b) of the M.P. Civil Services (Pension) Rules, 1976. The learned Single Judge ignored the provisions of section 4 of Payment of Gratuity Act, 1972, which was a Central Act and no State rule could override its provisions.
       3. Appellant – petitioner is the wife of late Brij Narain Sharma, who was an employee in the Municipal Council, Bhind. His service conditions were governed by the M.P. Municipal Employees’ (Recruitment and Condition of Service) Rules, 1968. The husband of the petitioner – appellant died after the year 1976 in some accident. The petitioner – appellant claimed benefits available to her, which was to be given on account of death of her husband.
       4. The learned Single Judge granted other benefits like pension etc. but refused to grant gratuity on the ground that the petitioner – appellant's husband had not completed five years of minimum service required and was not entitled for gratuity. The learned Single Judge relied on the provisions of Rule 44 of the M.P. Civil Services (Pension) Rules, 1976, which are quoted below : –
       "44. Death – cum – Retirement gratuity – (1) (a) – A government servant who has completed five years of qualifying service and has become eligible for service gratuity or pension under rule 4 shall on his retirement be granted death – cum – retirement gratuity equal to one fourth of his emoluments for each completed six months period of qualifying service, subject to a maximum of 16 1/2 times emoluments;
       (b) If a government servant dies while in service after completing 5 years qualifying service, the amount of death – cum – retirement gratuity shall be equal to 12 times of his emoluments or the amount determined under clause (a), whichever is higher and it shall be paid in the manner indicated in rule 45 :
       Provided that the amount of death – cum – retirement gratuity, payable under rule shall in no case, exceed twenty five thousand rupees."
       5. The gratuity was refused on the ground that the employee had not completed five years of service in the Municipal Council at the time of his death.
       6. The restriction placed on the grant of gratuity under Rule 44 as quoted above was applicable in ordinary course of retirement of an employee or leaving service on other grounds, when the grant of gratuity was permissible only after completion of five years of service.
       7. The provisions of section 4 of the Payment of Gratuity Act, which is a Central Act, was not at all brought to the notice of the learned Single Judge. Section 4 of the Payment of Gratuity Act provides that in case of death, the condition of completion of five years service was not necessary and the employee's heirs shall be entitled also for payment of gratuity, if he dies before completion of five years of service. The substantive section 4 of the Payment of Gratuity Act has waived this condition in respect of employees who die within five years of service. Payment of Gratuity Act is equally applicable to all over the country including the State of Madhya Pradesh. A bare perusal of different sections of Payment of Gratuity Act, particularly section 4 clearly indicates that the condition of completion of five years of service for payment of gratuity in case of death has been waived. This waiver in favour of employees applies in full force for all the employees in all over the country, either they are in Government Departments or other establishments.
       8. Section 4 of the Payment of Gratuity Act 1972 is quoted below : –
       4. Payment of gratuity –
       (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years –
       (a) on his superannuation, or
       (b) on his retirement or resignation, or
       (c) on his death or disablement due to accident or disease :
       Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement."
       9. The provisions of section 4 of the Payment of Gratuity Act, 1972 are applicable to the whole country including the State of Madhya Pradesh. Further, it also applies to the employees of any establishment as defined in the category of employees in section 2 (e). The Municipal Council Bhind definitely comes under the clause 'establishment' and the employees so defined in the Central Act includes the deceased, husband of the petitioner – appellant in this case. In such situation, there can be no doubt that the waiver of the condition of continuous service of five years as provided in section 4 of the Payment of Gratuity Act, 1972 applies in full force in the facts of the present case. In view of this waiver, the rule 44 of the M.P. Civil Services (Pension) Rules, 1976 relied by the respondents stands superseded to that extent.
       10. After examining the substantive provisions of section 4 of the Payment of Gratuity Act and interpreting Rule 44 (1) (b) of M.P. Civil Services (Pension) Rules, 1976, we are of opinion that the condition of completion of five years of service enumerated in Rule 44 (1) (b) is applicable only to the employees who leave service on any ground other than death. In case of death, this clause of completion of five years service will not apply as the same has been waived in the substantive section 4 of the Payment of Gratuity Act, which is applicable in the present case.
       11. We, therefore, allow this appeal and modify the order of the learned Single Judge to the extent that the appellant shall also be paid gratuity admissible under rules. The cost of this appeal is left to be borne by the parties themselves.