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SCA/16575/2007 1/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16575 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JUNAGADH
AGRICULTURAL UNIVERSITY - Petitioner(s)
Versus
RUDIBEN
SAIPABHAI BAMBHANIYA - Respondent(s)
=========================================================
Appearance
:
MR
DG CHAUHAN for
Petitioner(s) : 1,
MR ASHOK YAGNIK for Respondent(s) : 1.
Mr.
Nisha Parikh AGP for respondent No.2
State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 31/07/2008
ORAL JUDGMENT
Leave
to amend the cause title. Rule. Mr. Ashok Yagnik, advocate
appearing for respondent No.1 and Ms. Nisha Parikh, AGP appearing for
respondent No.2 waive service of Rule. With the consent of the
learned advocates appearing for the respective parties, the matter is
taken up for final hearing today.
2. By
this petition, the petitioner Junagadh Agricultural University has
challenged order passed by Controlling Authority, Bhavnagar, under
the Payment of Gratuity Act, 1972 [hereinafter referred to as ‘the
Act’]. The petitioner has also challenged an order dated 12.9.2006
passed by the appellate authority, Rajkot under the said Act in
Appeals No. 36 to 38 of 2006, 40 of 2006, and 43 of 2006 to 49 of
2006. By its order, the controlling authority came to the conclusion
that the applicant workman was entitled for payment of Rs. 71,557/-
towards gratuity, whereas the University had made payment of Rs.
62,016/- towards gratuity and that therefore there was shortfall of
Rs. 9,541/- (hereinafter referred to as ‘said shortfall’) hence the
said shortfall was required to be paid to the respondent. Upon
arriving at such a conclusion, the controlling authority by aforesaid
order dated 5.4.2006 directed the petitioner university to make
payment of said shortfall to the respondent along with interest at
the rate of 10% to be calculated from the date specified in the
order.
3. Aggrieved
by the said order, the petitioner University preferred appeal before
the appellate authority and appellate authority by its order dated
12.9.2006 confirmed the order of appellate authority. Against the
aforesaid orders, the University is before this Court by way of
captioned petition.
4. Mr.
DG Chauhan appears for the petitioner University and Mr. Anand Yagnik
appears for the respondent. I have heard the learned advocates for
respective parties.
5. Mr.
Chauhan submitted that the petitioner University had already made
payment of the amount payable to the respondent towards gratuity and
nothing was due and payable inasmuch as the amount was calculated by
the University in accordance with the provisions under the Act i.e.,
after taking into account total length of service and the last drawn
salary, however, the respondent approached the controlling authority,
and controlling authority arrived at a different conclusion and
ordered the petitioner University to make good the shortfall on the
ground that the petitioner University had made short payment. Mr.
Chauhan submitted that there is error apparent on the face of the
order by the controlling authority and controlling authority has
erroneously calculated the amount. He has also submitted that being
aggrieved by the said order of the controlling authority the
petitioner University approached the appellate authority, however the
appellate authority also committed the similar mistake instead of
setting aside the order of the controlling authority and approving
the payment made by the petitioner University, confirmed the order of
controlling authority.
6. Mr.
Yagnik on the other hand submitted that the petitioner University had
made short payment and had not calculated the amount payable towards
gratuity in accordance with provisions of the Act and settled legal
position, whereas the controlling authority has rightly calculated
the amount and there is no error in the order of the controlling
authority or the appellate authority.
7. So
far as the issue regarding applicability of the Act to the University
and the issue of entitlement of respondent for gratuity under the Act
are concerned, there is no dispute between the parties. Under the
circumstances, it is an admitted position in this petition that the
respondent is entitled for gratuity under the provisions of the said
Act. When the factual aspects are examined, then it is noticed that
there is no dispute between the parties so far as the relevant
factual details are concerned inasmuch as the date of joining of the
respondent, the date of superannuation of respondent, his last drawn
salary, and length of service are not in dispute. Thus, the only
dispute which arises in the petition is about the justifiability of
the quantum determined by the controlling authority on the basis of
the said undisputed factual aspects as against the amount paid by the
University by taking same facts into consideration.
8. Since,
there was no dispute between the parties regarding the date of
joining and date of retirement, total length of service and the last
drawn salary all that was required to be done by the controlling
authority was to calculate the payable amount as per the provisions
under the Act and in accordance with settled legal position.
9. As
per Section 4(2) in case of monthly rated employee, employer is
required to pay an employee [who has become eligible for gratuity as
per S. 4(1) r/w. 2-A and 4(6)] 15 days’ last drawn salary for every
completed year of service and in view of the explanation to
sub-section (2) of Section 4 (which has been inserted w.e.f.
1.10.1987 by Act 22 of 1987) the last drawn monthly salary has to be
divided by 26 and the quotient has to be multiplied by 15 so as to
arrive at 15 days’ salary.
10. Thus,
in present case, so as to determine the amount payable towards
gratuity the petitioner’s last drawn monthly salary (since the
petitioner was monthly rated-employee) is required to be divided by
26 so as to arrive at per day (average) salary and then the amount so
arrived at is required to be multiplied by 15 so as to arrive at the
15 days’ salary. Then the total amount payable towards gratuity is to
be arrived at by multiplying such rate i.e. 15 days’ salary by the
total number of years of service put in by the employee. To put it
differently, the payable amount is to be arrived at by calculating in
following manner;
(i)
Monthly salary =
per day (average) salary.
26
(ii)Per
day (average)salary X 15 X Total length of service.
11. When
the order in question is examined in light of such settled legal
position, it is noticed that the controlling authority has applied
the said formula inasmuch as it has taken into account the last drawn
salary of the respondent as Rs. 3,876/- and has divided the same by
26, which would come to about Rs. 149/- and the amount so arrived at
has been multiplied by 15, and then the resultant amount i.e. about
Rs. 2235/- has been multiplied by total length of eligible service of
concerned employee i.e. 32 years. Thus, so far as the question of
method and mode of calculation and arriving at payable amount is
concerned, Controlling Authority has not committed any error. In
present case, there is no dispute that the total length of eligible
service of the petitioner is of 32 years. Accordingly, the
controlling authority had concluded that the petitioner was entitled
for Rs. 9,541/- For the purpose of satisfaction about the correctness
of the calculation, the counsel for the petitioner was asked to
recalculate the amount in accordance with the aforesaid formula.
After calculating the same, the counsel for the petitioner also found
that there is no error in the calculation made by the controlling
authority.
12. In
this view of the matter, it is clear that the controlling authority
has calculated the payable amount by applying correct formula and has
not committed any error in arriving at the final figure. Therefore,
the order of the controlling authority does not suffer from any error
of law or jurisdiction or even on factual aspects. Hence, the
appellate authority was also justified in confirming the said order
of the controlling authority.
13. On
the overall consideration, the order of the Controlling Authority
does not suffer from any error and jurisdiction and the authority has
determined the payable amount in accordance with settled legal
position and the Appellate Authority has also not committed any error
in law or jurisdiction or even of facts in confirming the order of
the Controlling Authority. Hence, there is no reason to interfere
with two concurrent orders which do not suffer from any error of law
and no case for interference is made out and that therefore the
petition does not deserve to be entertained. Hence the same is
rejected. Rule is discharged.
[
K.M. Thaker, J. ]
rmr.
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