STATE OF UTTARAKHAND Vs. KHIMULI DEVI

JUDGEMENT

(1.) THERE is 37 days delay in filing the present appeal. We have considered the averments made in the application for condonation of delay in preferring the present appeal and being satisfied with the sufficiency of reasons furnished therein, we allow the application (CLMA No. 6868 of 2012) and thereby condone the delay in preferring the appeal.

(2.) THERE is no statutory mandate that an employee shall be paid pension, whereas there is a statutory mandate that an employee shall be paid gratuity. Insofar as the State Government employees are concerned, the State Government has made Pension Rules. In the Pension Rules, the State Government has provided that, in addition to pension, a State Government employee shall be entitled to gratuity. The Statutory compulsion, contained in the Payment of Gratuity Act, 1972, provides that gratuity to the extent mentioned in the said Act shall be paid to an employee, who has qualified to obtain the same by having had acquired eligibility as mentioned in the said Act. The Payment of Gratuity Act has also provided that in the event a scheme has been propounded by the Employer, which entails better payment of gratuity and in the event, the same is paid, it is not necessary to pay the employee the gratuity as has been mentioned in the Payment of Gratuity Act, 1972. Inasmuch as, provision for payment of gratuity, as contained in the Pension Rules of the State Government, is better than what has been provided in the Payment of Gratuity Act, an employee, entitled to receive gratuity under the Pension Rules, is not entitled to receive gratuity payable under the Payment of Gratuity Act, 1972. The Government by its order dated 13th July, 2006 made it clear that an employee, who is not a Government employee, will be entitled to gratuity in terms of the provision contained in the Payment of Gratuity Act, but shall not be entitled to the same no sooner he becomes a Government employee. While issuing the said letter, the Government proceeded on the basis as if every person, who has become a Government employee, upon retirement would be entitled to gratuity under the Pension Rules. At that stage, it was not taken note of that a Government employee may retire before acquiring eligibility to obtain gratuity under the Pension Rules. In the instant case, deceased employee, at the time of his retirement, did not serve the Government for acquiring the minimum eligibility for obtaining gratuity under the Pension Rules. He was, accordingly, denied the same. There is, however, no dispute that the deceased employee rendered continuous service as mentioned in the Payment of Gratuity Act, 1972 in the work charge establishment of the State before he became a permanent employee of the State without any interruption. Taking into account the service rendered in the work charge establishment and subsequently in the Government, the employee did serve that much his employer, which entitled him to obtain payment of gratuity payable under the Payment of Gratuity Act, 1972 as mandated by the said Act.

(3.) GRATUITY , thus payable, was denied and, accordingly, a writ petition was filed by the employee concerned. After his death, his heirs were substituted. Writ petition has been allowed by directing payment of gratuity, but without indicating as to what would be the standard to be applied for payment of the same, whether the same should be on the basis of the Pension Rules of the Government or on the basis of the Payment of Gratuity Act, 1972.