PRIYANKA UPADHYAYA Vs. COAL INDIA LTD

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution of India for a direction to the respondents to pay gratuity to the petitioner as per "Executive Cadre Retirement Gratuity Scheme, 1974" on the death of her husband.

(2.) It is not in dispute that the petitioner's husband Hariom Upadhyay was an employee of respondent No. 2 South Eastern Coalfields Limited in Umaria Sub-area. He was appointed on December 6, 1991 and he was in the executive cadre. He died in harness on April 16, 2001. He was drawing emoluments of Rs. 21,377/- per month at the time of his death. The petitioner has been given an amount of Rs. 1,00,923/- as gratuity as per Payment of Gratuity Act, 1972 as amended in 1994 (hereinafter to be referred to as 'the Act'). There was a Scheme known as "Executive Cadre Retirement Gratuity Scheme, 1974" (hereinafter to be referred to as 'the Scheme'). This Scheme was introduced in the year 1974 for making provision for payment of gratuity to the executives of the Coal India Limited and its subsidiary the respondent No. 2 as at that time they were not covered by the definition of "employee" given in Section 2(e) of the Act. As per amendment in this definition in the year 1994 any person "employed in a managerial or administrative capacity" was also included therein. The result was that the persons in executive cadre also came within its ambit and they became entitled to gratuity under the Act. The Scheme was therefore withdrawn as per memorandum dated January 14, 1998. According to the Scheme in case of death of an employee working in the executive cadre the amount of gratuity that was payable to his heirs was twelve months emoluments if he had completed five years of service. As per provisions of the Act, the amount of gratuity payable in such a case is much less than what was payable under the Scheme. But on retirement on attaining the age of superannuation the maximum amount of gratuity which was payable as per Scheme was rupees one lac but under the Act the ceiling on the amount of gratuity payable on retirement is rupees three and half lacs.

(3.) The petitioner's case is that the Scheme was prevalent at the time of appointment of the petitioner's husband in the year 1991 and therefore it became one of the terms of the "contract" between him and the company that the amount of gratuity payable in the event of his death would be as per provisions of the Scheme and, therefore, the petitioner is entitled to gratuity as per Scheme which was more beneficial. It is pointed out that Section 4(5) of the Act provides that the employee is entitled to "better terms of gratuity under any contract with the employer". It is contended that the Scheme which was more beneficial could not be revoked in the year 1998.