JUDGMENT
S.N. Phukan, CJ.
1. The petitioner herein Mr. B.L. Aggarwal joined the services of respondent No. 1 namely, Himachal Consultancy Organisation Ltd., (in short HIMCON) on March 15, 1982 as an Administrative Officer and after putting in more than ten years of service he retired on June 30, 1992. The petitioner has two grievances i.e. non-payment of gratuity for the entire service period of ten years and non-granting of increments due on March 1, 1989 and March 1, 1992 of Rs. 30/- and 65/- respectively. According to the petitioner, had these two increments been granted to him, his last pay drawn would have been Rs. 4053/- per month. There is no dispute that the post of the petitioner was redesignated as Statistical Officer w.e.f. December 18, 1989 but he was given the lowest pay scale of the post although, according to the petitioner, he was entitled to get a higher pay scale of Rs. 1400-2500 and thus on his retirement his monthly pay would have been Rs. 4053/-. The petitioner prays for an appropriate writ to the respondents for fixing his salary as Statistical Officer in the grade of Rs. 1400-2500 and also to grant him increments. It may be stated that some amount of gratuity was paid to the petitioner but he has prayed for a direction to the respondents to grant him gratuity for the entire length of service namely ten years. He has also prayed for interest at the rate of 18% per annum on the amount due.
2. Industrial Finance Corporation of India has been impleaded as respondent No. 2 in this writ petition but the petition is resisted only by respondentNo.l, HIMCON.
3. In the reply affidavit filed on behalf of respondent No. 1, a preliminary objection has been raised that respondent No. l is owned and controlled by the Government and hence is not amenable to writ jurisdiction. According to the contesting respondent the petitioner was appointed on ad hoc basis as Administrative Officer for a period of six months initially vide Annexure R-l/ A. This period was extended for another six months or till the post is filled up on regular basis by office order dated September 20, 1982 vide Annexure R-1/B. Thereafter the services of the petitioner were regularised as Administrative Officer w.e.f. March 15, 1983 in the pay scale of Rs. 450-700 “with a probation period of one year” vide Annexure R-l/C. The period of probation, according to the respondent, was further extended upto September 14, 1984 and the petitioner was given opportunities to improve his performance vide Annexure R-1/E. According to the respondent though the petitioner was due to get his annual increment from March 1, 1984 but it was deferred in view of his poor performance and also in view of the extension of his probationary period. Again the period of probation was extended for six months vide Annexure R-l/F. It has been stated in the reply affidavit, that a sub-committee was constituted to consider the case of the petitioner and it was suggested that the respondent may absorb his service as Assistant (Statistical) in the pay scale of Rs. 700-1200 as against the pay scale of Rs. 800-1400 which was duly accepted by the petitioner. This post was redesignated as Statistical Officer in the same pay scale w.e.f. December 18, 1989, vide Annexure R-1/H. Regarding gratuity it has been stated in the reply affidavit that the petitioner is not entitled to get gratuity at the rates claimed by him as he did not complete ten years of regular service as he was regularised and confirmed only on March 15, 1985,
4. It may be stated that the petitioner has claimed gratuity at the rate of one month’s salary for every completed year of service and according to the respondent, the petitioner is entitled to get gratuity for five years at the rate of fifteen days, salary for completed one year of service and accordingly he was paid Rs. 22,200/- as gratuity.
5. We have heard Mr. Chhabi! Dass, learned counsel for the petitioner and Mr. Balwant Kukreja, learned counsel for respondent No. 1.
6. Regarding maintainability of the writ jurisdiction we are of the view that we need not consider whether respondent No. 1 is amenable to writ jurisdiction vis-a-vis Article 12 of the Constitution, as we are of the opinion that this Court can issue an appropriate writ for non-compliance of the provisions of the Payment of Gratuity Act, 1972 (‘the Act’ in short) which is a welfare legislation.
7. The first point to be considered is whether the petitioner is entitled to get gratuity only for five years i.e. for the period for which his services were regularised or for the entire period often years which the petitioner admittedly had put in under respondent No. l. The appointment letter, dated March 11, 1982 is at annexure R-1/A to the reply affidavit. From the said reply we find that the petitioner was appointed on ad hoc basis in the regular pay scale with the benefit of local pay, dearness allowance, dearness pay, interim relief, and additional dearness allowance. It has also been stated in the said letter that he shall be governed by the staff regulations of the Company and other rules as also administrative circulars and office orders. By order dated September 20, 1982 vide Annexure R-1 /B, the appointment of the petitioner as Administrative Officer was extended for a period of six months. By order dated March 10, 1983, vide Annexure R-1/C, the services of the petitioner were regularised in the post of Administrative Officer w.e.f. March 15, 1983. By letter dated March 3, 1984 of the Managing Director HIMCON, the petitioner was informed that his period of probation was extended by another six months. This letter does not indicate that the petitioner shall not be entitled to get annual increment. Similarly, the period of probation was further extended by the letter dated December 20, 1984 vide Annexure R-1/F. The report of the subcommittee as stated above, is available at Annexure R-1/G. In the said report it has been suggested that the HIMCON would be able to absorb the petitioner as Assistant in the scale stated above. It has also been suggested that the petitioner shall not be given his increments for the period from March 1, 1984 to February 28, 1985 by resolution of the Board of HIMCON vide Annexure R-1/H. It was decided that the post of the petitioner shall be redesignated as Statistical Officer in the same grade and it will not involve any financial benefit to him.
8. From the above orders of HIMCON it is absolutely clear that the petitioner was in continuous service from the date of his initial appointment and there is a link of the entire service for ten years. As the petitioner continued in service for ten years we hold that he shall be entitled to get gratuity for the above entire period of service. From the side of HIMCON, no rules, regulations or resolutions of the Board have been placed before us that the period of five years which the petitioner put in before his regularsation shall not be counted for the purpose of gratuity.
9. The words ‘continuous service’ have been defined in the Act. Regarding Section 2-A of the Act, we have no hesitation in holding that the above period of ten years of service shall be counted for calculation of gratuity.
10. Now the question is what shall be the rate of gratuity to which the petitioner shall be entitled for putting ten years of service. Sub-section (2) of Section 4 of the Act provides that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to the employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned.
11. According to Mr. Chhabil Dass, learned counsel for the petitioner, in view of the resolution of the Board of HIMCON dated September 13, 1985, the petitioner shall be entitled to get gratuity at the rate of half month’s salary (basic plus dearness allowance) for each completed year of service for those who have completed five years of service and thereafter one month’s salary for those who have completed ten years of service subject to maximum of 20 months’ salary or Rs. 50,000/- whichever is less. This decision also indicates that all employees of HIMCON irrespective of their salaries shall be entitled to get gratuity. The said decision is at Annexure PB to the writ petition. The learned counsel has drawn our attention to Sub-section (5) of Section 4 of the Act which inter alia provides that nothing in the said Section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. The learned counsel has urged that in view of the above decision of the Board of HIMCON dated September 13, 1985, the petitioner is entitled to get gratuity at the rate decided by the Board and not in terms of Sub-section(2) of Section 4 of the Act.
12. Respondent No. 2 sent a revised staff regulation to HIMCON for approval and it was put up to the Board as agenda item No. 8 on December 5, 1989 with the suggestion of the Managing Director. The above suggestion along with draft rules are available at Annexure PJ to the rejoinder filed by the petitioner. It has been urged on behalf of the petitioner that the Board accepted the draft revised service regulations with modifications including the modification that the earlier decision regarding payment of gratuity taken by the Board shall continue and not the rate of gratuity as suggested by respondent No .2. We are unable to accept the contention of the learned counsel for the petitioner inasmuch as the decision of the Board does not indicate any modification. The said decision is available at the end of Annexure PJ and also Rl/1. The said decision runs as follows :
“The Board considered in detail the Memorandum No. 23/89-90 dated December 5, 1989 and approved the rules as placed before the Board, with the amendment that the applicability of Medical leave to HIMCON’s employees introduction of leave fare concession, changes in the rules of reimbursement of medical expenses etc. be made effective from January 1, 1990.”
13. From the above it is clear that there was modification of the earlier decision of the Board
dated September 30, 1985 regarding payment of gratuity. In the regulations regarding gratuity the following provision has been made :
“The facility of gratuity is to be provided to all employees as per the provisions of the Payment of Gratuity Act, 1972 as amended from time to time. Even those employees who are not governed by the Payment of Gratuity Act, 1972 are to be extended the benefit of gratuity on the same basis and subject to the same terms and conditions as are applicable to the employees governed by the Payment of Gratuity Act, 1972.”
14. Therefore, as this staff regulation was adopted subsequent to the decision of the Board dated September 30, 1985, the rate at which the gratuity will be payable shall be at the above rate as per the provisions of the Act which provides that the employees shall be entitled to get gratuity at the rate of 15 days’ wages based on the rate of wages last drawn by him. The claim of the petitioner that he shall be entitled to get gratuity at the rate of half month’s salary for each completed year of service for initial five years and thereafter one month’s salary for the remaining five years is not at all sustainable.
15. Regarding increment the only point that has been urged is that the petitioner is not entitled to get increment as claimed as he was put on probation and the increments were stopped as his performance was not satisfactory. We have already quoted the various orders passed by HIMCON and we do not find anything either in his appointment letter or subsequent order that he was ever placed under suspension. From all the abovesaid Annexures annexed to the writ petition, and the reply, we do not find that there is any power with HIMCON to stop increment if the service is not satisfactory. From the staff regulations which was adopted by the Board on December 5, 1989, there is also no provision for stoppage of any increment during the period of probation. Therefore, the action of the respondents in not granting two increments due to the petitioner on March 1, 1984 and March 31, 1992 at the rate of Rs. 30/- and Rs. 65/- respectively is without any authority of law and accordingly we direct respondent No. l HIMCON to grant these two increments to the petitioner.
16. The petitioner has claimed higher pay scale after redesignation of the post as Statistical Officer w.e.f, December 18, 1989. From the decision of the Board at Annexure R-1/H, we find that the Board decided to re-designate the post which the petitioner was holding without any financial benefit. In view of the above decision of the Board, the petitioner cannot claim a higher pay scale.
17. For the reasons stated above, the writ petition is partly allowed with the following directions :
1. The petitioner shall be granted annual increment on March 1, 1984 and March 31, 1992 at the rate of Rs. 30/- and Rs. 65/-respectively and thereafter his pay shall be recalculated ;
2. The petitioner shall be entitled to get gratuity for the entire period of ten years of service in terms of Sub-section (2) of Section 4 of the Act for each completed year of service or part thereof in excess of six months at the rate of fifteen days’ wages based on the rate of wages last drawn by the petitioner after re-fixation of his pay in terms of above direction; and
3. The gratuity shall be calculated immediately and thereafter the amount already paid shall be readjusted and the balance amount shall be paid within a period of two months from today failing which it shall carry interest at the rate of 12% from the date of this judgment.
18. With the above directions and observations, the writ petition is disposed of. The parties to bear their own costs.