The Commissioner vs R.Gandhi …R1 In … on 15 February, 2011

       

  

  

 
 
   IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:   15.02.2011
CORAM:
THE HONBLE MR.JUSTICE K.CHANDRU
W.P.Nos.431 to 434 of 2008


The Commissioner
Ambattur Municipality
Ambattur, Chennai  600 053.           	...Petitioner in
all the WPs


Vs

1.R.Gandhi  	...R1 in W.P.No.431/2008

2.Mahoob Beebi			...R1 in W.P.No.432/2008

3.S.Sagadevan			...R1 in W.P.No.433/2008

4.M.R.Krishnan			...R1 in W.P.No.434/2008


5.The Director of Local Fund Audit,
  Kuralagam, Chennai  600 108.

6.The Joint Commissioner of Labour,
  Appellate Authority,
  Payment of Gratuity Act,
  Chennai.

7.The Assistant Commissioner of Labour III
  Controlling Authority,
  Payment of Gratuity Act,
  Chennai.	...Respondents 2 to 4
in all WPs


Prayer :Petitions under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the order of the 3rd respondent dated 22.8.2007 in P.G.A.NOs.7,6,4 and 5/2007 culminating with the order of the 4th respondent dated 20.11.2006 in P.G.Nos.208,109,107 and 108 of 2005 respectively and quash the same.

		For Petitioner  :  Ms.C.Devi, G.A.
		For Respondents :  Mr.R.Karthikeyan for R1 
				         (in all Wps)
					    Mr.R.Murali, G.A.
					    For R3 and R4 (in all Wps)



C O M M O N  O R D E R

	The petitioner in all the four writ petitions is the Ambattur Municipality represented by its Commissioner. The petitioner Municipality in these four writ petitions challenges the order of 3rd respondent Appellate Authority under the Payment of Gratuity Act, 1972 dated 22.8.2007 in P.G.A.Nos.7,6,4 and 5/2007 respectively confirming the order of the 4th respondent Controlling Authority dated 20.11.2006 in P.G.Nos.208,109,107 and 108 of 2005 respectively and seeks to set aside the same.

	2. In these writ petitions, notice  was ordered on 07.01.2008.  Pending the notice, no interim order was granted. Subsequently, the writ petitions were admitted on 11.11.2010 and the applications for interim order were rejected on the same day.
	
	3. While the first respondent in all the writ petitions is served and appeared through counsel, it is the second respondent who had filed a counter affidavit dated 22.07.2008 supporting the stand of the petitioner Municipality.  The first respondent who are employees of the Municipality after their retirement were paid the pension and DCRG. Thereafter, they filed applications claiming gratuity. It was argued that since the Municipal Employees are governed by the Tamil Nadu Pension Rules, 1978 and they are government servants and they were also paid DCRG, they are not eligible for gratuity separately. 

	4. However, the authority held that so long as the Municipality is covered by the provisions of the Gratuity Act as held by the Supreme court in Municipal Corporation of Delhi v. Dharmaprakash Sharma reported in 1998 7 SCC 221, they are eligible to get gratuity.  Even if any other benefits are available in the municipality, that will not disentitle the employees from receiving gratuity under the Act.  In the appeal, the same view was taken by the Appellate Authority.  The grounds raised by the petitioner in these writ petitions are no longer res integra.  

	5. It is necessary to refer to Section 14 of the Payment of Gratuity Act, which is as follows:-
	"14.Act to override other enactments, etc.- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."

	6. Since the petitioner Municipality admittedly do not enjoy any exemption under Section 5 of the Act, mere payment of pension and DCRG will not take away the right of the employees to receive gratuity.  

	7. The Supreme Court in Katheeja Bai v. Superintending Engineer reported in (1984) 3 SCC 518  rejected a similar contention when the employer attempted to state that a Special Contribution of PF would be equated to pension and therefore, there was no necessity to pay gratuity.  In paragraph 7, it was observed as follows:-
"7. Dr Chitale invited our attention to Section 14 of the Payment of Gratuity Act, 1972 which provides,
The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.
He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the Payment of Gratuity Act and therefore the latter should prevail to the exclusion of the former. This argument is dependent on the assumption that the Special Contribution under Regulation 37 is the same thing as the gratuity contemplated by the Payment of Gratuity Act. We have held that it is not and the argument, therefore, fails."

	8. Very recently, the Supreme Court in  Allahabad Bank and another v. All India Allahabad Bank Retired Employees Assn. reported in (2010) 2 SCC 44, had rejected a similar contention. In Paragraph 36 and 38, it was observed as follows:-
"36. The appellant being an establishment is under the statutory obligation to pay gratuity as provided for under Section 4 of the Act which is required to be read along with Section 14 of the Act which says that the provisions of the Act shall have effect notwithstanding anything inconsistent therein contained in any enactment or in any instrument or contract having effect by virtue of any enactment other than this Act. The provisions of the Act prevail over all other enactments or instruments or contracts so far as the payment of gratuity is concerned. The right to receive gratuity under the provisions of the Act cannot be defeated by any instrument or contract.

38. There is no material placed before us that the employees while opting for the pension scheme at the time of their superannuation /retirement either expressly or impliedly waived their statutory right to claim payment of gratuity under the provisions of the Act. In the circumstances we find no merit in the submission made by the learned counsel for the appellant in this regard. For the aforesaid reasons we find no merit in the appeal. 2010 2 SCC had rejected a similar contention."

	9. In the light of the above, all the writ petitions will stand dismissed. In view of the dismissal of the writ petitions, the petitioner is directed to pay the amount ordered by the third respondent under the impugned order as per law to the first respondent. No costs. 

15.02.2011
svki

Index : Yes/No
Internet: Yes/No


To

1.The Director of Local Fund Audit,
  Kuralagam, Chennai  600 108.

2.The Joint Commissioner of Labour,
  Appellate Authority,
  Payment of Gratuity Act,
  Chennai.

3.The Assistant Commissioner of Labour III
  Controlling Authority,
  Payment of Gratuity Act,
  Chennai.



K.CHANDRU,J.

Svki

W.P.Nos.431 to 434 of 2008

15.02.2011