DELHI DEVELOPMENT AUTHORITY Vs. KUNDAN

JUDGEMENT

(1.) All the three writ petitions raise the common question, of applicability of the Payment of Gratuity Act, 1972 qua the employees of the petitioner DDA. The Authorities under the said Act whose orders are challenged in these writ petitions have held the petitioner DDA liable and directed payment of the additional amounts, due by way of gratuity under the Act, over and above the gratuity otherwise paid by the petitioner DDA under its rules and regulations to the respondents in each case.

(2.) Mr. Bhupesh Narula counsel for the petitioner DDA in W.P.(C) No.5343/2004 has argued that the DDA is neither a factory, mine, oilfield, plantation, port or railway company within the meaning of Section 1(3)(a) of the Gratuity Act, nor a shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in Delhi, within the meaning of Section 1(3)(b) nor has it been notified under Section 1(3)(c) of the Act and thus the provisions of the Act are not applicable. However, I find that this Court as far back as in Municipal Corporation of Delhi Vs. V.T. Naresh held that merely because MCD is a local body or a local authority created by the Delhi Municipal Act, 1957 would not mean that it will not be an establishment so long as it is so in relation to any law relating to establishment. The MCD was thus held to be an establishment within the meaning of Section 1 (3) (b) of the Gratuity Act. The judgment of the single judge in V.T. Naresh was upheld by the Division Bench of this Court as recently as in MCD Vs. Rati Ram 153 (2008) DLT 284. What has been held qua MCD, applies equally to the petitioner DDA also. There is thus no merit in the said plea.

(3.) Mr. Bhupesh Narula, Advocate next contended that the matter is fully covered by the judgment in DTC Retired Employees' Association Vs. DTC AIR 2001 SC 1997. To appreciate the said contention, the case of the petitioner DDA may be set out as under: a. That under Section 2 (e) of the Gratuity Act, "employee" does not include any person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. The employees of the Central Government and the State Government are governed by the CCS Rules framed under Article 309 of the Constitution of India and which inter alia provide for pension and which includes gratuity. Section 56 of the Delhi Development Act, 1957 under which the petitioner DDA has been constituted allows the Central Government to, after consultation with DDA, and by Notification in Official Gazette make rules to carry out the purposes of the Act including the rules as to the manner of constitution of the Pension and Provident Fund for whole time paid members, officers and other employees of DDA and the conditions subject to which such funds may be constituted. In exercise of powers conferred by Section 56 (1) and 56(2)(q) of the DDA Act the Central Government has framed the DDA (Pension) Rules 1967; by virtue thereof the CCS (Pension) Rules 1972 governing the Central Government employees were made applicable to the officers and other employees of the DDA. It is argued that the employees of DDA are thus governed by the same rules as the employees of the Central Government and are therefore not entitled to gratuity by virtue of Section 2 (e) of the Gratuity Act. It is urged that for this reason alone, the employees of the petitioner DDA would also not be entitled to gratuity under the Act. b. That under Section 5(1) of the Gratuity Act the Government is empowered to, by Notification, exempt any establishment to which the Act applies from the operation of the provisions of the Act, if in the opinion of the Government the employees in such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under the Gratuity Act. It is argued that the Notification dated 17th May, 1978 of the Government of India in exercise of powers under Section 56 (1) and 56(2)(q) of the DDA Act, making the CCS (Pension) Rules 1972 applicable to the employees of DDA is a Notification within the meaning of Section 51 (1) of the Gratuity Act. It is contended that the very fact that the CCS Pension Rules, on the basis whereof the Gratuity Act is not applicable to the Central Government employees, have been made applicable to the employees of the DDA is indicative of DDA also being exempted from the applicability of the Gratuity Act. c. Reliance is also placed on Section 4(5) of the Gratuity Act. It is contended that if this Court finds that the employees of DDA under the CCS Pension Rules are getting better terms than they are entitled to under the Gratuity Act, then also the petitioner DDA should be exempted from the applicability of the Gratuity Act.