IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 14722 of 2000(C)
1. THE SR.DIVISIONAL PERSONAL OFFICER
... Petitioner
Vs
1. M.A.ALAKSHMI
... Respondent
For Petitioner :SRI.K.V.SADANANDA PRABHU,SR.SC.RAILWAYS
For Respondent :SRI.B.GOPAKUMAR
The Hon'ble MR. Justice K.M.JOSEPH
Dated :04/12/2007
O R D E R
K. M. JOSEPH, J.
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O.P. NO. 14722 OF 2000 C
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Dated this the 4th December, 2007
JUDGMENT
The Writ Petition is filed by the Senior Divisional
Personnel Officer, Southern Railway, Trivandrum. He calls in
question Exts.P5 and P7. The first respondent applied for
gratuity under the Payment of Gratuity Act, before the
Controlling Officer, and Ext.P5 is the order issued by the
Controlling Officer under the Payment of Gratuity Act, who
has allowed the application and directed payment of a sum of
Rs.22,055/= as gratuity to the first respondent. The case of
the first respondent was that the first respondent was in
casual service from 21.1.1963 and she was conferred with
temporary status and absorbed as regular servant on
19.6.1992. She was superannuated on 31.3.1995. It is her
case that she should be paid 29 years’ gratuity. For the
period from 21.1.1968 to 12.9.1975 and also for the period
from 6.7.1976 to 5.4.1978, the first respondent could not give
satisfactory explanation for non-employment. Proceeding on
the basis that there is a notional termination of the
employment of the first respondent, when she was absorbed
OP NO.14722/00 C 2
into regular service in the Railway, it was found that the first
respondent was entitled for gratuity for the period of casual
employment. On this basis and finding that the number of
years of casual service is nineteen years, it was found by the
Controlling Authority that the first respondent is entitled to
Rs.22,055/= as gratuity. Petitioner carried the matter in
appeal and Ext.P7 is the order of the Appellate Authority. The
Appellate Authority also took the view that the first
respondent is entitled to gratuity, but proceeded to modify the
amount payable as Rs.17,100/=, taking note of the fact that
the first respondent was receiving a sum of Rs.1,559.50, and
not Rs.2,012/= as found by the Controlling Authority.
Petitioner calls in question the same.
2. Learned counsel for the petitioner points out that the
matter in issue is squarely covered by a Division Bench
Judgment of this Court in O.P. No.15460 of 2000 dated
10.9.2002. Therein, the Division Bench proceeded to hold
that,
“At the time when casual employee is
absorbed into regular service, his service is not
terminated due to superannuation, resignation
or retirement as rightly contended by the
OP NO.14722/00 C 3
Railway in O.P. No.15460/2000. Even though
casual service came to an end, the employment
is not terminated. There is no cessation of
employment. They are absorbed in the regular
service and the entire service has to be treated
as one and they are entitled to get gratuity for
the entire service at the rate of 15 days’ wages
for every completed year of service under the
Payment of Gratuity Act. If they are entitled to
better benefits as per Service Rules, they are
entitled for the same. They can claim the better
benefits whenever they choose. If the benefits
under the Payment of Gratuity Act is better, they
can choose that.”
3. On the basis of the said view, it was held that the
employees are entitled to get the entire payment of pensionary
benefits and retirement benefits on the basis of the Service
Rules or Payment of Gratuity Act, whichever is beneficial and
they are not entitled to gratuity at the time when their status
of casual labourers is changed into regular service. The
Division Bench proceeded to allow the Writ Petition filed by
the Railway in OP No.15460/00 and further hold that if the
Railway has paid gratuity at the time of absorption of service
into regular service, that amount can be deducted by them
from the final payment in accordance with the Service Rules.
OP NO.14722/00 C 4
4. Petitioner in this case also is entitled to the benefit of
the above Judgment. Accordingly the Original Petition is
allowed and it is ordered that the first respondent is entitled
to get the entire pensionary benefits and retirement benefits
on the basis of the Service Rules or the Payment of Gratuity
Act, whichever is beneficial. It is also ordered that if the
petitioner has paid gratuity at the time of absorption into
regular service, that amount can be deducted in accordance
with the Service Rules.
K. M. JOSEPH, JUDGE
kbk.
OP NO.14722/00 C 5
K. M. JOSEPH, J.
O.P.NO. 14722 OF 2000 C
JUDGMENT
4th December, 2007.
OP NO.14722/00 C 6