High Court Kerala High Court

The Chairman vs K.J.Julius on 1 March, 2010

Kerala High Court
The Chairman vs K.J.Julius on 1 March, 2010
       

  

  

 
 
  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.
                   ----------------------------------------
                            W.A.No.1691 of 2009
                   ----------------------------------------
                            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