IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.13055 of 2000
Date of decision:08.10.2009
Haryana State Social Welfare Advisory Board ...Petitioner
Versus
The Appellate Authority under the Payment of Gratuity Act and others.
...Respondents
II. Civil Writ Petition No.13056 of 2000
Haryana State Social Welfare Advisory Board ...Petitioner
Versus
The Appellate Authority under the Payment of Gratuity Act and others.
...Respondents
Present: Mr. Nitin Kumar, Advocate, for the petitioner.
Mr. D.S.Nalwa, Additional Advocate General, Haryana, for
respondents 1 and 2.
None for respondent No.3
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III. Civil Writ Petition No.2946 of 2001
Haryana State Social Welfare Advisory Board ...Petitioner
Versus
The Appellate Authority under the Payment of Gratuity Act and others.
...Respondents
Present: Mr. Nitin Kumar, Advocate, for the petitioner.
Mr. D.S.Nalwa, Additional Advocate General, Haryana, for
respondents 1 and 2.
Mr. Ashwani Bakshi, Advocate, for respondent No.3
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CORAM: HON'BLE MR. JUSTICE K. KANNAN
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Civil Writ Petition No.13055 of 2000 -2-
1. Whether reporters of local papers may be allowed to see the
judgment ? No.
2. To be referred to the reporters or not ? No
3. Whether the judgment should be reported in the digest ? No
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K.Kannan, J. (Oral)
C.M. No.10494 of 2001
The application to restore the writ petition, which had been
dismissed in default on 19.04.2001, for the reasons stated in the
application, is ordered to be restored.
Civil Writ Petition Nos.13055-13056 of 2000
1. Both the writ petitions challenge the respective orders
passed by the Appellate Authority under the Payment of Gratuity Act in
response to the claim of two different employees under the petitioner.
The workman, whose claim is a subject of writ petition in Civil Writ
Petition No.13055 of 2000, was admittedly retired on 31.07.1991. The
claimant, who is the respondent in writ petition i.e. Civil Writ Petition
No.13056 of 2000, retired on 03.12.1992. By the impugned orders of the
respective authorities, the workmen’s claims to gratuity were admitted
and orders were passed.
2. Among other contentions of the learned counsel appearing
for the Haryana State Social Welfare Advisory Board, the principal
contention was that both the employees had been drawing salaries more
than Rs.2,500/-at the relevant time and even the calculations of gratuity
show that the employee in Civil Writ Petition No.13055 of 2000 was
drawing Rs.4148/- per month and the employee in Civil Writ Petition
No.13056 of 2000 was drawing Rs.2,640/- per month. The ultimate
Civil Writ Petition No.13055 of 2000 -3-
determination of gratuity payable to the workman had been made on the
basis of the last wage drawn mentioned above. The contention of
the learned counsel was that before the amendment to the definition of
’employee’ brought through Act 34 of 1994 w.e.f. 24.05.1994 only
employees whose employment was on wages not exceeding Rs.2,500/-
were entitled to gratuity. I have shown that each one of the employee
had been drawing more than Rs.2,500/- at the relevant time and their
cases were bound to be considered only with reference to the definition
as it was in the unamended provision of Section 2(e) of the Payment of
Gratuity Act. Although the learned counsel appearing for the petitioner
also argued on the mistake of calculations, I do not propose to examine
for the same, for, I have held that both the employees did not come
within the definition of ’employee’ as set out under the Payment of
Gratuity Act on the respective dates of retirement on 31.07.1991 and
03.12.1992 respectively.
3. The orders of the Controlling Authority and the Appellate
Authority are set aside and the writ petitions are allowed. In view of the
fact that the orders impugned are set aside, it is needless to state that the
petitioner shall be entitled to withdraw the amounts which had been
deposited before the authority constituted under the Act, if they have not
already been disbursed to the respective employees.
Civil Writ Petition No.2946 of 2001
4. The writ petition challenges the award of the gratuity of the
Appellate Authority which in modification of the order passed
by the Controlling Authority found that the employee was entitled to
Civil Writ Petition No.13055 of 2000 -4-
Rs.1,29,375/-. This amount had been reckoned on the basis that the
workman’s last drawn salary was Rs.5,750/-. The only point which is
urged before me was as regards the quantum determined by the Appellate
Authority. According to the learned counsel appearing for the petitioner,
the workman’s last drawn wage was only Rs.3,398/- and on such a
reckoning, the gratuity payable was only Rs.76,455/-. According to him,
the calculation made by the Appellate Authority making reference to the
copy of the pay fixation amount that showed the entitlement of the
employee to Rs.5,750/- per month, was not tenable. He would contend
that such a pay shall be available only to employees of the Social
Welfare Board and not to persons, who had been employed in various
projects done under the aegis of the Welfare Board. The learned counsel
is, however, unable to produce any record to displace the evidentiary
value of the pay fixation document that has been referred to in the order
of the Appellate Authority. Even otherwise, I have examined the records
summoned from the Appellate Authority and I find that the employee
had put on file the statement of fixation of pay under Haryana Civil
Services Assured Career Progression Rules, 1998, where the Chairman
of the Family and Child Welfare Project, Gurgaon, has referred to the
entitlement of the particular employee Smt. Sushila Gulati (the
respondent herein) to Rs.5,750/- per month. The correctness of the
certificates itself has not been specifically challenged anywhere in the
writ petition. There is no basis for an argument that the amount
mentioned in the statement given under the seal of the Chairman is
not correct and that the employee was not entitled to such a pay at the
Civil Writ Petition No.13055 of 2000 -5 –
relevant time of superannuation. The order of the Appellate Authority is,
under the circumstances, perfectly justified and there is no scope for
interference in the writ petition.
5. The writ petition is dismissed accordingly. No costs.
(K.KANNAN)
08.10.2009 JUDGE
sanjeev