GANI JUMA Vs. P C MEHTA

JUDGEMENT

(1.) Can the past services of an employee be counted for the purpose of payment of gratuity under the Payment of Gratuity Act 1972 (the `Act for brief) when the terminal benefits in respect of such past services have been paid to him ? This is one of the question arising in this petition under Article 226 of the Constitution of India questioning the correctness of the judgment and order passed by respondent No. 1 herein on 21/03/1979 in Appeal No. 74 of 1978. Thereby respondent No. 1 upset the order passed by respondent No. 2 in the application bearing No. 78 of 1976 made by the predecessor-in-title of the present petitioners (the `workman for convenience) for the purpose of claiming gratuity for his entire service from respondent No. 3. It is needless to say that respondent No. 2 had accepted the claim of the workman in toto.

(2.) It may be mentioned at this stage that soon after institution of the petition the workman left for his heavenly abode on 17/10/1979. His heirs have been brought on record in his place by virtue of the order passed by this Court on 8/01/1992 in Civil Application No. 39 of 1992.

(3.) The aforesaid question may be examined in the backdrop of certain undisputed facts. The workman was employed in the Power House Department of the then Junagadh State sometime on 28/10/1938. On the formation of the Saurashtra Electricity Board he was placed on deputation thereto with effect from 1/07/1954. On formation of the State of Bombay the Saurashtra Electricity Board came to be merged with the Bombay Electricity Board and he came to be transferred as an employee of the Bombay Electricity Board with effect from 1/04/1957 by virtue of one Government Resolution passed by the then Government of Bombay on 2 8/03/1959. It appears that under the State Government service he was enjoying the status of a pensionable post. It appears that in the Bombay Electricity Board there was no scheme of pension and instead it had the scheme of contributory provident fund in lieu thereof. It appears that thereupon he was required to exercise an option to accept and abide by the rules and regulations framed by the concerned Electricity Board and the conditions of service applicable to its employees. He appears to have exercised option to be an employee of the Board for all such purposes. It transpires from the record that thereupon his terminal benefits including the amount of gratuity payable to him were worked out and paid to him. It becomes clear from the record that the amount of service gratuity payable to him under the rules of the then Government of Saurashtra together with the death-cum-retirement gratuity amount was credited in his contributory provident fund account maintained in the concerned Electricity Board. There was thus constructive payment of the entire gratuity amount to him. He continued to be in the services of the Bombay Electricity Board from 1/04/1957. On formation of the State of Gujarat and consequently the Gujarat Electricity Board he came to be absorbed as an employer of the Gujarat Electricity Board which is arraigned as respondent No. 3 in this petition. He appears to have retired from service on superannuation on and from 2/12/1973 It appears that he was paid grauity for the period from 1/04/1957 to the date of his retirement. He found this payment to be inadequate in view of the fact that his past services prior to 1st April 1957 were not taken into consideration for the purpose of payment of gratuity. He therefore demanded such payment by way of difference from respondent No. 3. It appears that he received no favourable response from it. He thereupon made an application on 31/08/1976 to the authority of respondent No. 2 under the Act. That authority accepted his claim in toto and ordered payment of Rs. 5 813 to him within 30 days being difference of the gratuity amount payable to him. That decision was communicated to respondent No. 3 by one communication of 23rd March 1978. Its copy together with its accompaniment being the finding recorded by respondent No. 2 is at Annexure A to this petition. That aggrieved respondent No. 3. It carried the matter in appeal before respondent No. 1 under the relevant provisions contained in Section 7 of the Act. It was registered as Appeal No. 74 of 1978. By his judgment and order passed on 2 1/03/1979 in Appeal No. 74 of 1978 respondent No. 1 accepted the appeal and practically upset the order passed by respondent No. 2 at Annexure A to this petition. A copy of the order passed by respondent No. 1 in Appeal No. 74 of 1978 on 21/03/1979 is at Annexure B to this petition. That aggrieved the workman. He has therefore preferred this petition under Article 226 of the of India questioning the correctness of the decision of the appellate authority at Annexure B to this petition.