{"id":75063,"date":"2004-04-28T00:00:00","date_gmt":"2004-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kantaben-mohanlal-parmar-legal-vs-gujarat-electricity-board-on-28-april-2004"},"modified":"2017-08-31T10:44:14","modified_gmt":"2017-08-31T05:14:14","slug":"kantaben-mohanlal-parmar-legal-vs-gujarat-electricity-board-on-28-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kantaben-mohanlal-parmar-legal-vs-gujarat-electricity-board-on-28-april-2004","title":{"rendered":"Kantaben Mohanlal Parmar, Legal … vs Gujarat Electricity Board on 28 April, 2004"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kantaben Mohanlal Parmar, Legal … vs Gujarat Electricity Board on 28 April, 2004<\/div>\n
Author: J Patel<\/div>\n
Bench: J Patel<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Jayant Patel, J.<\/p>\n
1. All these petitions, except Special Civil
\nApplication Nos.2786 of 2004 to 2789 of 2004, are yet not
\nadmitted and, therefore, Rule.\n<\/p>\n
Mr.M.D.Pandya, learned Counsel, waives service of
\nRule on behalf of the respondent.\n<\/p>\n
In all other matters, Rule has been served and
\nMr.M.D.Pandya, learned Counsel appears on behalf of the
\nGujarat Electricity Board, and with the consent of the
\nparties, whole this group is decided with the other
\nmatters, which are being considered today for final
\nhearing.\n<\/p>\n
2. In all these petitions, the facts are common and
\ncommon questions are involved and, therefore, they are
\nbeing dealt with by this common order.\n<\/p>\n
3. The short facts appears to be that the
\npetitioners are the employees, who have retired from 1st
\nApril, 1995 to 23rd September, 1997. There is no dispute
\non the point that a settlement was entered into between
\nthe respondent, Gujarat Electricity Board (“the Board”
\nfor short), and its union on 24th July, 1988 and the said
\nsettlement, inter alia, provided for Condition No.24.0
\nfor gratuity, which reads as under:\n<\/p>\n
“The maximum financial ceiling on the amount of
\ngratuity payable will be revised on State Govt.
\nlines, which is at present Rs.1 lakh. This will
\nhave effect from 1-10-1987.”\n<\/p>\n
There is also no dispute on the point that after
\nthe settlement, General Standing Order (“the G.S.O.” for
\nshort) came to be issued by the Board on 24th August,
\n1988 and Condition No.29 of the G.S.O. reads as under:\n<\/p>\n
“29. Gratuity:\n<\/p>\n
The maximum financial ceiling on the amount of
\ngratuity payable will be revised on State
\nGovernment lines, which is at present Rs.one
\nlakh.”\n<\/p>\n
As per the petitioners, right to receive the
\ngratuity had accrued on the basis of the settlement and
\nthe G.S.O. may not be of much relevance. It is the
\nfurther case of the petitioners that the State
\nGovernment, thereafter, has revised the ceiling limit of
\nthe gratuity from time to time i.e. from Rs.1 lakh to
\nRs.2.50 lakhs and thereafter, it is further revised to
\nRs.3.50 lakhs. It is also the case of the petitioners
\nthat at the time when the matter was considered by the
\nHonourable Finance Minister of the State Government on
\n6th March, 1993, it was represented on behalf of the
\nBoard to the State Government that the gratuity is being
\npaid on the same scale as that of the Central Government.
\nThe petitioners concerned have retired from service. It
\nis an admitted position that they have been paid the
\namount of gratuity by the Board taking as the basis being
\nthe ceiling limit of Rs.1 lakh.\n<\/p>\n
3.1 All the petitioners approached the Controlling
\nAuthority under the Payment of Gratuity Act, 1972
\n(hereinafter referred to as “the Act” for short) and the
\nbasis of the application was that as per the settlement,
\nthe ceiling limit stands revised as being revised by the
\nState Government from time to time and when they retired
\nfrom service, the ceiling limit prevailing was Rs.3.50
\nlakhs and the amount of gratuity is not accordingly paid
\nand, therefore, the application is made to direct the
\nrespondent-Board to make the payment accordingly. It
\nappears that the Controlling Authority considered
\nrespective applications made by the employee concerned
\nand found that the revision in the ceiling limit, as
\ndecided by the State Government from time to time, would
\nnot automatically apply and when the employee concerned
\nretired from service, the ceiling limit prevailing of the
\ngratuity was Rs.1 lakh and as the payment is already
\nmade, the concerned petitioner employee would not be
\nentitled for the additional amount of gratuity and,
\ntherefore, all the applications came to be dismissed by
\nthe Controlling Authority.\n<\/p>\n
3.2 All the concerned petitioners have carried the
\nmatter in appeal before the Appellate Authority and the
\nAppellate Authority has also ultimately concurred with
\nthe reasoning given by the Controlling Authority and has
\nconfirmed the order passed by the Controlling Authority
\nby dismissing the appeal.\n<\/p>\n
 It is under these circumstances that all the
\nconcerned petitioners have approached this Court by
\nrespective petitions.\n<\/p>\n
4. Mr.Pankaj R.Desai, learned Counsel appearing for
\nthe petitioners, at the outset, submitted that the
\npresent petitions are also under Article 226 of the
\nConstitution of India and, therefore, he submitted that
\nthe petitions may not be treated as the petition under
\nArticle-227 of the Constitution of India.\n<\/p>\n
5. As such, if the prayers made in the petitions are
\nconsidered, they are essentially for quashing of the
\norder passed by the Appellate Authority as well as by the
\nControlling Authority and for consequential prayer for
\npayment of the amount of gratuity, as prayed before the
\nControlling Authority, has been made and, therefore, the
\npetitions can be said as essentially under Article 227 of
\nthe Constitution of India.\n<\/p>\n
 However, Mr.Desai for the petitioners made an
\nattempt to submit that since the writ of certiorari has
\nbeen prayed, the petitions can be said as the petitions
\nunder Article 226 of the Constitution of India.\n<\/p>\n
I am afraid such a contention can be accepted because the
\npetitions are essentially for quashing of the orders
\npassed by both the lower quasi judicial authorities under
\nthe Act and as such, there is no ground invoking
\nviolation of any fundamental rights of the petitioners
\nunder Article 14 or 16 of the Constitution of India.\n<\/p>\n
6. Leaving aside the aforesaid, even if the matter
\nis concerned for examining the legality and validity of
\nthe impugned orders passed by both the authorities, for
\nthe reasons recorded hereinafter, it cannot be said that
\nboth the authorities have committed any jurisdictional
\nerror or have exercised the discretion so perversely
\nwhich would attract the power of this Court under Article
\n227 of the Constitution of India. Apart from the above,
\neven if the action of the Board of making the payment of
\nthe gratuity is examined, for the reasons as stated
\nhereinafter, it cannot be said that the action for not
\npaying the amount of gratuity on the basis that the
\nmaximum ceiling limit is Rs.3.50 lakhs is arbitrary or
\nunreasonable and, therefore, I find that it may not be
\nnecessary for this Court to finally conclude on the point
\nas to whether the petitions would be falling under the
\njurisdiction of Article 226 or 227 as the said aspect
\nwould be of no relevance because even if the matters are
\nconsidered under Article 226 of the Constitution of
\nIndia, then also, it would make no difference in the
\nfinal outcome of all the petitions.\n<\/p>\n
7. On perusal of the orders passed by the
\nControlling Authority and the Appellate Authority, it
\nappears that both the lower authorities have taken a view
\nin substance that the language used in the settlement is
\n“will be revised” and is with the language that “at
\npresent, it is Rs.1 lakh”. Normally, when a literal
\ninterpretation of any of the conditions of the settlement
\nis possible, it will not be required for the Court or any
\nauthority to add the word and to extract the meaning of
\nthe terms of the settlement. In my view, as per the
\nplain and simple reading of the relevant term of the
\nsettlement, the interpretation, as sought to be canvassed
\nby Mr.Desai on behalf of the petitioners, cannot be
\naccepted. The language used is “the maximum financial
\nceiling limit on the amount of gratuity payable will be
\n revised on State Government lines,
\nwhich is at present Rs.1 lakh.” Therefore, the words,
\n“will be revised”, cannot be read or equated giving the
\nsame meaning as the words, “will stand revised”, or “will
\nbe revised from time to time”. Therefore, even if the
\nG.S.O., which came to be issued on 24th August, 1988 is
\nnot taken as the basis, for considering the right of
\ngratuity, the only simple, literal and plain construction
\nof the term of settlement would be that the maximum limit
\nshall be Rs.1 lakh.\n<\/p>\n
8. This does not mean that there is no power or
\nauthority with the Board to revise the gratuity, as may
\nbe revised by the Government from time to time, but, the
\nfact remains that it has not been revised subsequently on
\naccount of revision of the ceiling limit by the State
\nGovernment. It is also an admitted position that the
\npetitioners are the employees of the Board, which is a
\nstatutory Board and they are not the employees of the
\nState Government as it is. It may be that the Board as
\nan employer may take a decision of adopting the benefits,
\nwhich are being given to the Government employees, at the
\ntime when the settlement took place, but, the
\ninterpretation cannot be stretched to the extent that
\nsuch benefit shall stand conferred upon the employees, as
\nprevailing from time to time unless and until there are
\nexpress words incorporated therein. This Court, in the
\ncase of the Gujarat State Road Transport Corporation vs.
\nChandrakant Tapubhai Vyas, reported at (2004) 5 Gujarat
\nHigh Court Judgements 618, while considering the scope
\nand ambit of the power of the authority under the Act,
\nhas observed at paragraphs 5 and 6 as under:\n<\/p>\n
“5. The first question which is required to
\nbe considered is the scope and ambit of section 4(2) of the act. The said sub-section reads as
\nunder:-\n<\/p>\n
“(2). For every completed year of
\nservice or part thereof in excess of six
\nmonths, the employer shall pay gratuity
\nto an employee at the rate of fifteen
\nday’s wages based on the rate of wages
\nlast drawn by the employee concerned:\n<\/p>\n
 xxx    xxxx  xxxx  xxxx  xxx xxx ”\n<\/p>\n
5.1 The language used by the legislature is
\nthe “rate of fifteen day’s wages based on the
\nrate of wages last drawn by the employee
\nconcerned”. There is no dispute on the point
\nthat on the date when the respondent employees
\nretired from service, gratuity is not paid to
\nthem on the rate of wages last drawn. On the
\ndate on which the employee concerned retired,
\nthere was no revision of payscale in existence.
\nSection 7 of the Act provides for the
\ndetermination of the amount of gratuity.
\nSub-section (3) of section 7 provides that the
\nemployer shall arrange to pay the amount of
\ngratuity within thirty days from the date it
\nbecomes payable to the person to whom the
\ngratuity is payable. Sub-section (3-A) provides
\nthat if the amount of gratuity payable under
\nsub-section (3) is not paid by the employer
\nwithin the period specified in sub-section (3),
\nthe employer shall pay, from the date on which
\nthe gratuity becomes payable to the date on which
\nit is paid, with simple interest at such rate not
\nexceeding the rate notified by the Central
\nGovernment from time to time. Sub-section (4) of
\nsection 7 provides that if there is any dispute
\nas to the amount of gratuity payable to an
\nemployee under this Act or as to admissibility of
\nany claim under the Act, the employer shall
\ndeposit with the controlling authority such
\namount as he admits to be payable by him as
\ngratuity. Clause (c) of sub-section 4 of section
\n7 provides that the controlling authority shall
\nafter due inquiry and after giving the parties to
\nthe dispute a reasonable opportunity of being
\nheard, determine the matter or matters in dispute
\nand if, as a result of such inquiry, any amount
\nis found to be payable to the employee, the
\ncontrolling authority shall direct the employer
\nto pay such amount. Sub-section (7) of section 7
\nprovides for appeal. Therefore, it appears that
\nif there is non-payment of the amount of
\ngratuity, then the power is attracted.
\nSimilarly, if there is any dispute on the
\nquestion of admissibility of any claim of
\ngratuity, then also, the power would be
\nattracted.\n<\/p>\n
6. The employees concerned in the present
\ncase asserted their right for admissibility of
\nthe payment of gratuity upon revision of payscale
\nwhereas the employer-petitioner has denied the
\nliability on the question of not providing by way
\nof settlement expressly for payment of gratuity.
\nAs such, on a conjoint reading of sections 4 and
\n7 it appears that the jurisdiction of the
\ncontrolling authority would be attracted only if
\nthere is statutory liability to pay the amount of
\ngratuity, and there is non-payment by the
\nemployer concerned. Further, even if the power
\nunder section 7 are construed for entertaining
\nthe claim of gratuity in purported exercise of
\nthe right to receive gratuity, then also the
\ncontrolling authority, while exercising the
\nadmissibility of the claim will have to decide as
\nto whether such claim is legally admissible or
\nnot. At the time when such aspect is to be
\nconsidered, the authority shall be guided by the
\nprovision of the Act for accrual of liability to
\npay the gratuity and for accrual of the right to
\nreceive the amount of gratuity.”\n<\/p>\n
Therefore, in view of the aforesaid decision, it
\nis for the authority to consider the right to receive
\nthe amount of gratuity at the relevant point of time.
\nIn the very decision, at paragraph 7, it was observed
\nas under:\n<\/p>\n
“…  … As such, in the matter of
\nrevision of payscale, it may have various facets.
\nNo doubt, employees concerned of any institution
\nmay have a right to represent and may have a
\nright to participate in the deliberations and
\ndiscussions and also, to some extent, in the
\nfinalization in the matter of payscale, however,
\nthe decision to revise the payscale is
\nessentially a policy decision of the employer,
\ntaking into consideration various aspects
\nincluding the financial, the cost structure, cost
\nof living, profit generation, reserves\/surplus
\nand such other aspects. At the time when the
\ndecision is taken for revision of the payscale by
\nan employer, more particularly in the present
\ncase a Public Corporation, it may include various
\npackages and it may also include various modes of
\nmaking payment. …  …  …”\n<\/p>\n
Therefore, two aspects appear to be clear. One
\nis that the settlement was as a package including various
\nother benefits. So far as the gratuity is concerned,
\nthere was a clause for enhancing the maximum financial
\nceiling limit of Rs.1 lakh. Such a decision of Rs.1
\nlakh, at the relevant point of time, may be on the basis
\nof the ceiling limit fixed by the State Government, but
\nthereby, it cannot be said that there will be an
\nautomatic revision of the ceiling limit as and when so
\nrevised by the State Government. The second is that even
\notherwise also, when the settlement is entered into
\nbetween the Union and the employer, Board, as back as in
\nthe year 1988, of revising the limit of the gratuity and
\nwhen such settlement is actually acted upon, it cannot be
\nsaid that any action taken by the Board based on the said
\nsettlement would be rendered unreasonable or arbitrary.\n<\/p>\n
9. Keeping the aforesaid aspects in mind, if the
\nimpugned orders passed by both the authorities are
\nexamined, it cannot be said that the Controlling
\nAuthority or the Appellate Authority have committed any
\njurisdictional error or have exercised the discretion so
\nperverse which would call for interference by this Court
\nin exercise of power under Article 227 of the
\nConstitution of India. It further transpires that the
\ninterpretation given by both the authorities appears to
\nbe just and reasonable and is, in effect, a correct
\ninterpretation of a particular clause of the settlement
\nand admissibility or non-admissibility of the amount of
\ngratuity claimed.\n<\/p>\n
10. Mr.Pankaj R.Desai, learned Counsel for the
\npetitioners, made an attempt to submit that at one point
\nof time, the G.S.O. was amended, as per G.S.O. No.229,
\non 7th May, 1992 interpreting that the ceiling limit
\nshall stand revised, as revised by the Government and,
\ntherefore, he submitted that the said G.S.O. shows that
\neven the Board considered the term of the settlement qua
\ngratuity accordingly.\n<\/p>\n
11. I am afraid that such a contention can be
\naccepted when a plain and simple meaning can be extracted
\nfrom the term of the settlement for gratuity. Any
\ninterpretation or action de hors the same cannot be
\nconsidered as a valid ground for asserting the right of
\nreceiving additional amount of gratuity. It is well
\nsettled that any illegal action by any authority cannot
\nbe made as the basis for the purpose of either claiming
\ndiscrimination or for asserting the right thereon,
\notherwise it would result into perpetuating the
\nillegality and, therefore, the said contention of
\nMr.Desai cannot be accepted.\n<\/p>\n
12. Mr.P.R.Desai, learned Counsel for the
\npetitioners, has relied upon the decisions in the matter
\nbetween The Manager, East Donger Chickli Colliery of
\nWestern Coalfields Ltd. vs. D.D.Dubey & Ors., reported
\nat 1998 F.L.R. 649, and in the matter between R.Nagaraju
\nvs. Managing Director, A.P.State Warehousing
\nCorporation, Hyderabad, reported at 1998 II C.L.R . 985,
\nfor contending that if there is a better term of the
\nsettlement, such right can always be asserted.\n<\/p>\n
In my view, both the said decisions are not at
\nall connected with the subject matter or the issue which
\nis to be considered by the Court and, therefore, the said
\ndecisions have no applicability and even if the
\nprinciples, as laid down, are considered and accepted,
\nthen also, the same would be of no help to the
\npetitioners in the present case.\n<\/p>\n
13. Mr.Desai, learned Counsel for the petitioners,
\nhas also relied upon a decision of this Court in the case
\nof Gujarat State Road Transport Corporation vs.
\nRameshbhai M.Makwana, reported at 2002(3) G.L.H. 282,
\nfor contending that any G.S.O. will not nullify the
\nobject or effect of the settlement. As observed earlier,
\neven if the G.S.O. is not considered when the term of
\nthe settlement itself is self explanatory, and plain and
\nliteral interpretation and meaning can be extracted.
\nFurther, it is found by this Court that there shall not
\nbe any automatic revision of the ceiling limit and,
\ntherefore, the said decision would be of no help to the
\npetitioners.\n<\/p>\n
14. If the matter is examined even from the
\ntouchstone of Articles 14 and 16 of the Constitution of
\nIndia, keeping in view the observations made by this
\nCourt in the case of the Gujarat State Road Transport
\nCorporation vs. Chandrakant Tapubhai Vyas (supra), it
\ncannot be said that the action of not paying the
\ngratuity, taking the basis as revised by the State
\nGovernment for its employees, is arbitrary or
\nunreasonable. As observed earlier, if the Board has
\nacted under the settlement strictly, as per the language
\nemployed in the settlement, the action cannot be said to
\nbe unreasonable or arbitrary. Further, it is not the
\ncase of the petitioners that any of the employees, who
\nhave retired from 1st April, 1995 to 23rd September,
\n1997, are paid the amount of gratuity taking as the basis
\nof the revision of the ceiling limit by the State
\nGovernment. So far as the amendment in G.S.O. dated 7th
\nMay, 1992 is concerned, as observed earlier, the same
\ncannot be said to be a valid action in accordance with
\nthe terms of the settlement. Moreover, as observed
\nearlier, any settlement resulting into additional
\nfinancial burden can always be with a reasonable
\nclassification by putting a cut off date. It is not even
\nthe case of the petitioners that any date fixed in the
\nsettlement for giving effect to the settlement, is, in
\nany manner, unreasonable or arbitrary. When the Gujarat
\nElectricity Board has treated all those employees, who
\nare covered by the settlement at par, and the payment of
\nthe gratuity is accordingly made, it cannot be said that
\nthe action would be rendered unreasonable or arbitrary.\n<\/p>\n
15. In view of the above, all the petitions fail and
\nare dismissed. Rule is discharged. Considering the
\nfacts and circumstances of the case, there shall be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kantaben Mohanlal Parmar, Legal … vs Gujarat Electricity Board on 28 April, 2004 Author: J Patel Bench: J Patel JUDGMENT Jayant Patel, J. 1. All these petitions, except Special Civil Application Nos.2786 of 2004 to 2789 of 2004, are yet not admitted and, therefore, Rule. Mr.M.D.Pandya, learned Counsel, waives service of Rule […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-75063","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKantaben Mohanlal Parmar, Legal ... vs Gujarat Electricity Board on 28 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kantaben-mohanlal-parmar-legal-vs-gujarat-electricity-board-on-28-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kantaben Mohanlal Parmar, Legal ... vs Gujarat Electricity Board on 28 April, 2004 - 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