V.S. EKAMBARAM, Vs. THE APPELLATE AUTHORITY UNDERTHE PAYMENT OF GRATUITY ACT, 1972AND THE REGIONAL LABOUR COMMISSIONER (C), CHENNAI,

JUDGEMENT

(1.) PETITIONERS have filed W.P.No.7353 of 1999 praying to issue a writ of certiorarified mandamus, calling for records from the first respondent dated 11.2.99 and 4.3.99 in Gratuity Appeals 3 to 11, 13, to 16 and 50 of 1998 respectively and to quash the same and consequently to compute the amount as prayed for in the gratuity applications before the 2nd and 3rd respondents together with interest at 10% per annum from the date of the application before the 3rd respondent with costs.

(2.) IN the affidavit filed in support of the writ petition No.7353 of 1999 the petitioners would submit that they were employed by the Imperial Bank of India, which was taken over by the 3rd respondent on 1.7.1955 under the State Bank of India Act, 1955 ; that they retired from State Bank of India on various dates; that at the time of their retirement, the Payment of Gratuity Act, 1972 (hereinafter called as the Act) came into force on 16.9.1972; that they were paid gratuity as per Section 4 of the Act at the rate of 15 days' salary for every completed year of service subject to the ceiling prevailing at that time; that they were not paid the better terms of gratuity according to paragraph 370 of the LAT Award which stood protected under Section 4(5) of the Act; that earlier, the employees of the Imperial Bank of India were covered by gratuity scheme based on two awards of the year 1947 -48; that one was the Divetia award which was applicable to Imperial Bank employees working in Bombay and Ahmedabad, which provided for payment of gratuity of one month's last drawn basic pay for every one year of service subject to a ceiling; that the Gupta award which was applicable to the employees of Imperial Bank of India (Bengal circle) provided for gratuity at the same rate of basic pay on Divetia award but without ceiling was made applicable to all the officers of the Imperial Bank of India outside Bombay and Ahmedabad; that the LAT gave an award in April, 1954 removing the ceiling on the payment of gratuity only under the Divetia award as it was an anomaly; that this modification along with other modifications was incorporated into the Shastry Award by the Industrial Disputes(Banking companies) Decision Act, 1955 (41 of 1955) which was to be in force till 31.3.1959; that this act statutorily protected subsequently under Sec.7 of the State Bank of India Act, 1955 which came into force on 1.7.1955 relating to pension, gratuity and other matters of the Imperial Bank of India are protected till they are duly altered according to law, but there was no alteration; that one P.V. Raju, who retired in April, 1986 filed a case under the Act claiming differential gratuity, which was ordered by the controlling authority in 1992 to be paid by the third respondent -bank, which was confirmed by appellate authority, against which the bank filed a writ petition in W.P.No.16842/94 on the file of the High Court, Andhra Pradesh, which is pending; that though the learned Single Judge held the condonation wrong, in W.A.Nos.230 and 253 to 273 of 1996, the Division Bench held on construction of the Gratuity Central Rules that there was really no delay, which will apply to this case also; that the controlling authority subsequently computed the differential gratuity against which the Bank has gone to the High Court by way of appeal; that in the light of the above developments, they have filed similar claims for differential gratuity in 1994/95 before the third respondent employer under 10 of the Central Rules; that the third respondent neither accepted nor negatived the claim but kept quiet; however, they filed the application for differential gratuity in Form. N within 90 days from the date of their application to the employer claiming differential gratuity; that the bank did not take any step to pay the difference. On such averments, the petitioners have come forward to file this writ petition praying for the relief extracted supra.

(3.) IN the affidavit filed in support of the writ petition No.11613 of 2000, the petitioner would submit that he joined the Imperial Bank of India on 27.7.1950 as an Award Staff i.e. Clerical Staff, which was taken over by the 3rd respondent on 1.7.1955 under the State Bank of India Act, 1955 ; that he retired from State Bank of India on 31.5.1992; that at the time of their retirement, the Payment of Gratuity Act, 1972 (hereinafter called as the Act) had come into force on 16.9.1972; that he was paid only a gratuity of Rs.39,650/ - as per Section 4(2) of the Act; that he was not paid the higher gratuity of one month salary for every year of service as per para 370 of LAT Award of 1954 the better terms of gratuity according to paragraph 370 of the LAT Award which stood protected under Section 4(5) of the Act; that the difference in gratuity worked out to Rs.2,44,722/ -; that some of his colleagues filed claim petition for the differential gratuity based on one P.V. Raju's case, who was also a retired Imperial Bank of India employee like him and who had also preferred the claim before the Assistant Labour Commissioner, Hyderabad belatedly; that the Assistant Labour Commissioner has condoned the delay and posted the matter for hearing on merits; that the matter was taken by way of a writ petition and a Writ Appeal in Andhra Pradesh High Court; that the Division Bench of the Andhra Pradesh High Court in its decision reported in 1996 LIC dated 29.3.1996 held that the Controlling Authority had rightly condoned the delay if any and the Single Judge of the Andhra Pradesh High Court was not right in reversing the decision of the Authority and remanded the matter to the Controlling Authority for disposal on merits, with a further direction that the question of delay will be agitated only after a decision upon merits is given by the Controlling Authority; that going by the judgment of the Division Bench, there is also no delay in his case, which can be agitated by the employer; that the Division Bench also held that the question of limitation relating to gratuity was only procedural and a claim for gratuity cannot be extinguished because gratuity is property and the State Bank of India was a State under Article 12 of Constitution.