T. NARAYANASWAMY S/O LATE THIMMARAYAPPA Vs. THE DIVISIONAL CONTROLLER KSRTC BANGALORE CENTRAL, DIVISION, K.H. ROAD, SHANTHINAGAR, BANGALORE-560 027, THE ASSISTANT LABOUR COMMISSIONER AND CONTROLLING AUTHORITY, KARMIKA BAVAN, RANNERRUCHATTA ROAD,

JUDGEMENT

(1.) A conductor dismissed from service on 29.10.1994 toy the respondent -Road Transport Corporation asserting to be entitled to merger of basic pay with dearness allowance in terms of Rules 293 -C, 293 -D and 293 -E of the Karnataka Civil Service (4th Amendment) Rules, 2006, for short 'Rules', notified on 13.9.2006 and gazetted on 10.11.2006, filed an application invoking Rule 10 of the Payment of Gratuity (Central) Rules, 1972, under the Payment of Gratuity Act, 1972, for short 'Act', to re -determine gratuity which when rejected by order dated 10.9.2009, Annexure -A, of the Controlling Authority, was carried in appeal before the Appellate Authority, which too when confirmed by order dated 14.2.2011, Annexure -B, rejecting the appeal, has presented this petition.

(2.) LEARNED counsel for the petitioner submits that the 'Rules' are applicable by pointing to Clause 5 of the Memorandum of Settlement signed on 17.7.1989, Annexure -F, stating that the rates of dearness allowance was agreed to be on par with the sanction of the State Government for its employees from time to time while the enhanced dearness allowance would be paid in cash, and during the currency of the settlement, if the State Government were to merge any portion of the dearness allowance to all its employees, that portion of the dearness allowance so merged would be reckoned at appropriate levels by the Corporation for the purpose of gratuity. According to the learned counsel, the Authorities under the Act having foiled to notice the applicability of the 'Rules' for re -determination of the gratuity, fell in error in rejecting the petitioner's claim

(3.) HAVING heard the learned counsel for the parties, perused the pleadings and examined the orders impugned, indisputably, petitioner's service when terminated by the respondent on 29.10.1994 was not in service as on 28.12.1995, Rule 293 -D states that in respect of State Government Servants, who retire or die while in service on or after 28.11.1995 and before 1.4.1998, the dearness allowance sanctioned upto the average of All India Consumer Price Index (AICIPI) 1201.66 in G.O. No. FC 29 SRP 93, dated 30th October, 1993 as indicated therein, shall also be reckoned with the emoluments as specified in Rule 293 -C, as emoluments, for the purpose of retirement gratuity or death gratuity under the Karnataka Civil Services Rules, in accordance with such Scales.