D. CHANDRASEKARAN Vs. THE REGISTRAR OF CO.OPERATIVE

JUDGEMENT

(1.) The petitioner has come forward with this writ petition challenging the order of the 1st respondent dated 7.2.2013 and to direct the 2nd respondent to pay the balance gratuity amount of Rs. 8,48,865/- and the balance of surrender of earned leave wages of Rs. 44,458/- with interest at 12% p.a. on those amounts from 1.2.2011 to till date of payment. The case of the petitioner is that he joined the services of the 2nd respondent Society on 1.5.1975; after rendering service for 35 years, he attained the age of superannuation on 31.1.2011; the Deputy Registrar, by his letter dated 27.1.2011, permitted the 2nd respondent to settle all the retiral benefits of the petitioner on his retirement on 31.1.2011. The 2nd respondent Society is having a registered Bylaw relating the service conditions of the employees. Bylaw 27 deals with gratuity. Based on the said Bylaw, the 2nd respondent framed gratuity rules and the same were approved by the Deputy Registrar on 20.1.1994. According to the petitioner, as per Rule 9 of the Gratuity Rules, he is entitled to gratuity based on the average monthly basic salary drawn during the last three years of his service. It is the further case of the petitioner that even though the Registrar issued a circular dated 4.9.97, the 2nd respondent did not modify the gratuity which were approved on 20.1.1994. Hence, the existing rules are in force. The petitioner made several representations to the 2nd respondent to correct the gratuity amount and other retirement benefits. However the 2nd respondent has paid Rs. 3,50,000/- as gratuity, even though as per Bylaw 27, the gratuity comes to Rs. 11,98,855/-. Therefore, the petitioner filed a revision petition dated 23.2.2011 before the 1st respondent under section 153 of the Tamil Nadu Co-operative Societies Act, as against the order of the 2nd respondent dated 31.1.2011 in so far as the retirement benefit calculations made in it and to direct the 2nd respondent to pay the balance gratuity amount, Earned leave salary, EPF and 115% D.A. Since the said revision petition was not disposed of, the petitioner filed a writ petition before this Court in W.P. No. 28349 of 2012 for a direction to the 1st respondent to dispose of the said revision, wherein, this Court, by order dated 17.10.2012 issued direction to the 1st respondent to pass orders on the revision petition within a period of four weeks. Since the 1st respondent failed to comply with the order of this Court, the petitioner issued a contempt notice and thereafter, the impugned order has been passed. Aggrieved against the said order, this writ petition is filed.

(2.) The learned Counsel for the petitioner submitted that even though the Gratuity Act has been amended increasing the ceiling limit from Rs. 3.5 lakhs to Rs. 10 lakhs with effect from 24.5.2010 as per Payment of Gratuity (Amendment) Act, 2010 (15 of 2010), the conclusion arrived at by the 1st respondent that the petitioner is entitled only to a sum of Rs. 3.5 lakhs towards gratuity is wrong. According to the learned Counsel for the petitioner, the reason given for non-sanctioning of increased gratuity amount is that the petitioner is governed by Rule 9(d) of the Gratuity Rules. It is the contention of the learned Counsel for the petitioner that only Rule 9(c) of the Gratuity/Rules is applicable and not Rule 9(d), since Rule 9(c) is applicable to persons who reaches 58 years or death, and Rule 9(d) deals is applicable to persons who resigns from service. As far as the petitioner is concerned, he has reached the age of superannuation and retired from service and hence Rule 9(c) is only applicable. Further, according to the learned Counsel for the petitioner, since the petitioner is having 207 days of earned leave on the date of his retirement, at his credit, he is entitled to encash 207 days wages instead of 180 days, thereby, he is entitled to a sum of Rs. 44,458/-towards the balance of surrender of earned leave wages.

(3.) The 2nd respondent has filed a counter affidavit. Relying on the said counter affidavit, it is the contention of the learned Additional Government Pleader that the case of the petitioner will not come under Rule 9 (c) of the Gratuity Rules, as it will be applicable only to persons who have been terminated from service and since the petitioner has retired from service on reaching the age of superannuation, he is governed by Rule 9(d). According to him, the petitioner is entitled to a sum of Rs. 3.5 lakhs only towards gratuity and the said amount has been paid and therefore, he cannot seek for more amount than what was granted as per the bylaws. It is further contended that the Payment of Gratuity Act, 1972 is not applicable to the Society as there were only 4 employees and the said Act is applicable only if there are more than 10 employees. As far as the contention of the learned Counsel for the petitioner with regard to earned leave wages is concerned, it is the contention of the learned Additional Government Pleader that the petitioner is entitled to only earned leave wages upto 180 days as per the special bylaw 11(2) and he is not entitled to claim earned leave wages for 207 days and hence the earned leave wages for 37 days have been deprived. Based on the above submissions, the learned Additional Government Pleader has sought for dismissal of the writ petition.