GUJ.HOUSING BOARD Vs. NATWARLAL JAGJIVAN

JUDGEMENT

(1.) Heard learned Advocate Mr. HS Munshaw for petitioners.

(2.) By filing this petition under Article 227 of the Constitution of India, petitioner Gujarat Housing Board has challenged order passed by Controlling Authority, Rajkot in Gratuity Case No. 73 of 2008 decided on 9th March, 2009 wherein Controlling Authority has granted Rs. 26,338.00 being interest on delayed payment of Rs. 1,58,565.00, for a period of about one year, seven months and 28 days at the rate of 10 per cent and remaining due amount of 10 % Gratuity which comes to Rs. 36,198/- with 10 per cent simple interest has been granted with effect from 1.8.2006. Aforesaid order passed by the controlling authority, Rajkot was challenged by petitioner before appellate authority, Rajkot in Appeal No. 42 of 2009 which came to be dismissed by appellate authority, Rajkot on 28.8.2009.

(3.) Learned Advocate Mr. Munshaw for petitioner has raised number of contentions before this Court. According to his submissions, respondent No. 1 herein who was born on 9.5.1955 was an employee of Gujarat Housing Board and joined service as work charge clerk on 13.11.1973 and was made regular in service on 8.12.1983 and later on his application for voluntary retirement was accepted and accordingly, he retired on 30.6.2006. It was his submission that petitioner board was earlier having Contributory Provident Fund Scheme for its employees but after careful consideration of the request of the employees, it was thought fit to adopt the pension scheme of the State Government and a Circular dated 12.11.1991 was issued through which the Scheme was implemented. He submitted that accordingly, provisions of Gujarat Civil Service Rules/Bombay Civil Service Rules are made applicable for benefits to employees of petitioner board. He submitted that respondent No. 1 gave his option for pension scheme and accordingly his case was to be considered for calculation of pension as well as gratuity as provided under the Gujarat Civil Service Rules. He submitted that as per the provisions of the Gujarat Civil Service Rules, pension includes retirement cum death gratuity and, therefore, gratuity was also to be calculated accordingly. He submitted that an order dated 27.2.2008 was passed by Administrative Officer of petitioner board through which respondent No. 1 herein who retired as a junior clerk, was ordered to be paid pension on the basis of his last drawn salary. In all, 31 years service was counted for calculation of pension. Gratuity amounting to Rs. 1,58,565/- was calculated on the basis of 31 years service. Respondent No. 1 who joined service on 13.11.1973 and retired on 30.6.2006 was granted benefit of pension and gratuity on the basis of 31 years service as through orders dated 24.8.07, it was ordered that the period commencing from 13.3.76 to 8.5.78 was not to be counted for the purpose of pension. He also submitted that the impugned orders passed by respondent No. 3 and 2 respectively are illegal, unjust, arbitrary and contrary to facts and evidence on record as well as without jurisdiction. He further submitted that as such, petitioner board is a statutory body under total administrative control and supervision of Government of Gujarat and it has accepted and adopted provisions of Gujarat Civil Service Rules and policy of State. He submited that services of present respondent No. 1 was counted for the purpose of pension and gratuity in accordance with Gujarat Civil Service Rules and retirement benefits like pension and gratuity to its employees accordingly, in other words, the calculations for payment of pension and gratuity are made as per provisions of Gujarat Civil Service Rules and policy of State. He submits that services of respondent No. 1 herein was counted for the purpose of pension and gratuity in accordance with the provisions of Gujarat Civil Service Rules and accordingly, payment of gratuity was made. It is submitted that the gratuity was not liable to be paid under the Payment of Gratuity Act, 1972 and, therefore, there is no question of jurisdiction of respondent No. 2 and 3 against the order of Gujarat Housing Board as said authorities have no authority to decide such calculation under the Payment of Gratuity Act, 1972. He further submitted that the calculation of gratuity is made as per the provisions of Gujarat Civil Service Rules and after considering total length of service of the respondent No. 1 herein. It is also submitted that through orders dated 24.8.07 passed by Housing Commissioner, 31 years service is to be counted for the purpose of pension and gratuity as two years service was treated as without pay. It is also submitted that respondent No. 2 and 3 have ignored issues like applicability of provisions of Gujarat Civil Service Rules, issue of jurisdiction and total length of service etc. raised before the authorities and allowed application for interest at the rate of 10 per cent on delayed payment. It is also submitted that respondent No. 2 and 3 have erred in not appreciating whether respondent No. 1 herein was treated as Government servant for the purpose of benefit of pension and gratuity and grievance, if any, is represented before appropriate authority. It is submitted that in case of delayed payment, interest at the rate of 6 per cent is required to be paid. It is also submitted that respondent No. 1 has not challenged orders passed by Gujarat Housing Board through which it is decided that in all 31 years service is to be calculated for purpose of pension and gratuity and has become final and conclusive. In view of this, respondent No. 2 and 3 have no authority to order to calculate pension and gratuity on the basis of 33 years. It is submitted that wrong calculation by any incompetent authority would not only result into heavy burden to the public exchequer but also set a bad precedent as the respondent No. 1 herein is not eligible and entitled for payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. In light of aforesaid contentions raised by learned Advocate MR. Munshaw and considering draft amendment which has been placed on record and granted by this Court on 22nd February, 2010, it is submitted that pension scheme being package, it includes amount of gratuity which has been accepted by respondent No. 1 and thereafter, raising of dispute and disputing amount of gratuity paid by petitioner is amounting to committing breach of undertaking given by respondent No. 1 and same is contrary to package scheme of petitioner. Petitioner has placed on record by way of draft amendment, certain documents which would go to suggest that pension scheme has been accepted by petitioner board and accordingly, options were invited from concerned employees and such option was exercised by present respondent and on that basis, pension amount has been paid by respondent No. 1 as well as amount of gratuity which is part of pension scheme paid and yet, respondent No. 1 has disputed amount of gratuity and claimed amount of gratuity under the Payment of Gratuity Act, for that, according to him, respondent No. 1 is not entitled and respondent is entitled to amount of grauity only under the pension scheme which has been accepted by respondent No. 1 and, therefore, this aspect has not been properly considered by controlling authority as well as appellate authority and, therefore, this petition has been filed by petitioner before this Court. Except these submissions, no other submission is made by learned Advocate Mr. HS Munshaw before this Court.