N M GODBOLE Vs. TATA CONSULTING ENGINEERS

JUDGEMENT

(1.) BY this Writ Petition under Article 227 of the Constitution, the Petitioner-workman challenges the Judgment and order passed by the learned Member of the Industrial Court, bombay and the appellate authority under the Payment of Gratuity Act, 1972 in Appeal (PGA)No. 5 of 1985 on June 26, 1985.

(2.) THE relevant facts giving rise to the Writ Petition are as under: the Petitioner was employed with the first respondent-Company on March 3, 1975 as technical assistant and on or about January 1, 1981 he was promoted as Junior Officer. Thereafter he was placed in the supervisory category. He resigned on August 11, 1983. After his resignation, he claimed gratuity amount unsuccessfully and hence made an application (PGA) No. 501 of 1983 in the Second Labour Court at Bombay-cum-Con-trolling Authority under the Payment of gratuity Act, 1972. It was his contention that his last drawn wages were Rs. 1,2777- and at that rate he was entitled to gratuity amount of Rs. 5,896/ -. He also contended that there was a gratuity scheme in the Company according to which he was entitled to Rs. 10,216/- as gratuity amount. His application was resisted by the employer who contended that the Petitioner was not entitled to any gratuity amount either under the scheme or under the provisions of the Payment of gratuity Act. According to the employer, the wages payable to the Petitioner were revised as per an Award made by the Industrial Tribunal and he was drawing wages exceeding Rs. 1000/- per month before he completed five years of service. The Controlling Authority appreciated the evidence recorded by him and held that the wages drawn by the petitioner during the first five years of his services were less than Rs. 1,000/- per month and as such he was entitled to gratuity amount to the extent of Rs. 4615. 38 Ps. He accordingly allowed the petitioner's claim by his judgment and order dated December 19, 1984. Not satisfied, the respondent-employer filed an appeal under Section 7 of the Payment of Gratuity Act. The learned appellate authority who heard the said appeal came to the conclusion that, as a matter of fact, the petitioner was drawing salary exceeding Rs. 1,000/- before he had completed five years of service and, therefore, he was not entitled to gratuity amount under the Payment of Gratuity Act. It was also held that the petitioner was not entitled to any gratuity amount under the scheme framed by the Company about which there is no dispute raised before me now. As the appellate authority allowed the appeal and set aside the order passed by the controlling authority, the petitioner filed the present writ Petition invoking supervisory Writ Jurisdiction of this Court under Article 227 of the constitution.

(3.) NOW, admittedly the Petitioner had joined the services of the first respondent-employer on 3. 3. 1975 and he has resigned on 11. 8. 1983. Further admitted fact is that there was an Award by the Industrial Tribunal made on 28. 12. 1978 which was to come in force with retrospective effect from 1. 1. 1976. Further admitted is the fact that the petitioner was receiving wages exceeding Rs. 1000/- per month with effect from 1. 1. 1978. When that is so, the petitioner was receiving wages exceeding Rs. 1000/-per month before he completed five years of service. Therefore, under section 2 (e) of the Payment of Gratuity Act, 1972 he would not be an employee and under section 4 of the said Act he would not be entitled to any gratuity amount, Mr. Ghaisas, appearing on behalf of the petitioner, respec-tifully urged that it is no doubt true that the Award passed by the Industrial Tribunal on 28. 12. 1978 was to come in force with retrospective effect from 1. 1. 1976 according to which the petitioner was entitled to wages exceeding Rs. 1000/- per month effective from 1. 1. 78 but the fact of the matter is that for first five years the Petitioner was not paid wages exceeding Rs. 1000/- per month and, therefore, the petitioner would be entitled to gratuity amount under the Payment of Gratuity Act. The submission of Mr. Ghaisas is well controverted by Mr. Satish Shetty, appearing on behalf of the first respondent employer, that the arrears accruing on account of the Award passed by the Industrial Tribunal were paid to the petitioner and, therefore, it cannot be said that for the first five years he was getting wages not exceeding Rs. 1000/- per month. In fairness, Mr. Ghaisas conceded that the Petitioner did receive arrears of wages on account of the Award made by the Industrial Tribunal and that being so, it cannot really be said that the petitioner was receiving wages less than Rs. 1000/- per month for the first five years. That being the fact of the matter, the learned appellate authority was justified in setting aside the Judgment and order passed by the Controlling Authority and allowing the appeal. As stated above, it fs not in dispute that the petitioner was not entitled to any gratuity amount as per the scheme framed by the first respondent employer.