IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1691 of 2009()
1. THE CHAIRMAN, COCHIN PORT TRUST,
... Petitioner
Vs
1. K.J.JULIUS, AGED 66 YEARS,
... Respondent
2. UNION OF INDIA, REP. BY THE
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.T.C.GOVINDA SWAMY
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :01/03/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No.1691 of 2009
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Dated 1st March, 2010
JUDGMENT
Balakrishnan Nair, J.
The second respondent in the Writ Petition is the appellant. The
first respondent herein was the writ petitioner. The brief facts of the case
are the following. The first respondent was an employee of the Cochin Port
Trust which is a major port trust constituted under the Major Port Trust Act.
The Port Trust invoking its power to frame regulations has adopted the
C.C.S. (Pension ) Rules.
2. The first respondent herein retired from service on 30.6.1997.
At the relevant time, he was governed by the provisions in the C.C.S.
(Pension) Rules concerning payment of gratuity and also by the provisions of
Payment of Gratuity Act, 1972 as he was an employee as defined under
section 2(e) of the said Act. So, whichever scheme for payment of gratuity
was more beneficial to him, he was able to opt it. But, the maximum
amount of gratuity payable under the Payment of Gratuity Act, 1972 was
only Rs.1,00,000/= up to 24.9.1997. With effect from the said date, it was
enhanced to 3.5 lakhs. But, the maximum gratuity payable under the C.C.S.
(Pension) Rules and the scheme thereunder applicable to the first
respondent was Rs.3.5 lakhs. This enhanced rate was enforced for the
employees of the Port Trust with effect from 1.1.1997. Since the first
W.A.No.1691/2009 2
respondent retired from service on 30.6.1997, he was entitled to get
gratuity as per the C.C.S. (Pension) Rules read with the relevant
scheme which is produced as Ext.P1, as modified by Ext.P3.
3. As per the Payment of Gratuity Act, 1972, the amount of
gratuity is computed at the rate of 15 days’ wages for every completed
year of service, provided the employee concerned is having a
minimum service of five years. One month’s salary is taken as 26
days’ wages. Therefore, when wages for 15 days is computed, it will
be slightly above half month’s wages. But, under the C.C.S. (Pension)
Rules, the computation is made with reference to < of the monthly
emoluments for every completed six months' service, provided the
employee has completed total five years' service. Therefore, the
concept of 15 days' wages has no place while computing the benefits
under the C.C.S. (Pension) Rules. The relevant rule which deals with
payment of gratuity is Rule 50. Sub-rule 5 thereof specifies that the
emoluments for the purpose of Rule 50 shall be reckoned in
accordance with Rule 33.
4. The first respondent claimed that the ceiling for payment
of gratuity should be in accordance with Exts.P1 and P3 read with
C.C.S. (Pension) Rules. But, its computation should be made as
provided under the Payment of Gratuity Act,1972. Claiming the said
relief, the Writ Petition was filed. The appellant resisted the claim.
But, the learned Single Judge after hearing both sides allowed the Writ
W.A.No.1691/2009 3
Petition. Hence this Writ Appeal.
5. We heard the learned counsel on both sides. The
learned counsel for the appellant submitted that the first respondent
cannot claim best of both the worlds. If he wants computation as per
the Payment of Gratuity Act, he can claim only maximum amount of
Rs.1,00,00/-. But, if he wants the ceiling to go up to Rs.3.5 lakhs, as
provided in Ext.P1 as modified by Ext.P3, he has to go by the
computation provided in Rule 50 read with Rule 33 of the C.C.S.
(Pension) Rules. The learned counsel for the first respondent on the
other hand submitted that the C.C.S. (Pension) Rules have no
application to him, even in the adopted form by the Port Trust. He is
governed only by Ext.P1 as modified by Ext.P3. The same provides
only the maximum amount of DCRG which could be paid. The said
amount should be computed as provided under the Payment of
Gratuity Act.
6. The aforementioned contention of the first respondent
cannot be accepted in view of Ext.P4 judgment. The case of the first
respondent before this Court, when the Original Petition leading to
Ext.P4 judgment was heard, was that he is covered by the C.C.S.
(Pension) Rules and he should be granted benefits as per the said
rules.
7. The grievance raised in that Original Petition was
concerning the quantum of DCRG provided under the C.C.S. (Pension)
W.A.No.1691/2009 4
Rules. During the pendency of the Original Petition, Exts.P1 and P3
were issued and therefore, the Original Petition was disposed of
noticing that the grievance of the first respondent/Petitioner was
redressed by the issuance of Exts.P1 and P3. The learned Single
Judge, as per Ext.P4, ordered to release the DCRG to the first
respondent as per Ext.P3. In view of the above position, the present
contention that he is not covered by the computation of DCRG as per
the C.C.S. (Pension) Rules cannot be accepted. He cannot have best
of the two worlds. He cannot claim the quantum as per the C.C.S.
(Pension) Rules and simultaneously claim computation as per the
Payment of Gratuity Act. Therefore, the Writ Petition was liable to be
dismissed.
In the result, the Writ Appeal is allowed. The judgment
under appeal is reversed and the Writ Petition is dismissed.
K.BALAKRISHNAN NAIR
Judge
P.N.RAVINDRAN
Judge
TKS