SHANKAR GHOSAL Vs. HOWRAH DISTRICT CENTRAL

JUDGEMENT

(1.) THE petitioner in this writ petition, dated January 24, 2005, is seeking a mandamus directing the respondents to recalculate gratuity payable to him on the basis of provisions of the Payment of Gratuity Act, 1972, and pay him Rs. 73,7621 with statutory interest. The two questions which have arisen are:

(2.) HE retired from the service of the first respondent on December 30, 2002. He was entitled to get gratuity, and accordingly, on March 1, 2004 the bank gave him gratuity on the basis of Para. 10.2 of the Krishna Murti Committee recommendations which had been accepted by the bank. On July 24, 2004 a bipartite settlement, effective from July 1, 2004, was signed between the bank and the employees ' federation. It was provided that gratuity would be paid to a retired employee according to provisions of the Payment of Gratuity Act, 1972. One Sisir Kumar Bose, another employee of the bank, retired on November 6, 2001, moved a writ petition in this Court in 2004 contending that though he was entitled to get gratuity under provisions of the Payment of Gratuity Act, 1972, the bank did not give him the benefits. Order was made in July 2004 and accordingly the bank paid him gratuity under provisions of the Payment of Gratuity Act, 1972. Noticing these developments, the petitioner who had received his gratuity on March 1, 2004 without raising any objection submitted a representation, dated August 3, 2004, contending that he was also entitled to get gratuity under provisions of the Payment of Gratuity Act, 1972. Since the bank did not oblige him, he took out this writ petition.

(3.) THE bank does not admit that the petitioner was entitled to get gratuity under provisions of the Payment of Gratuity Act, 1972. In its affidavit it has rather stated that gratuity was paid to him according to the existing provisions by which both the parties were bound. I have not been shown anything from which it can be unmistakably held that he was entitled to get gratuity under provisions of the Payment of Gratuity Act, 1972. It is not known on what basis Sisir got benefit in terms of the bipartite settlement dated July 24, 2004, by which he was not covered. In any case, the question whether at the date the petitioner retired, he was governed by the provisions of the Payment of Gratuity Act, 1972, is essentially a question of fact that could be examined on the basis of evidence recorded by the Controlling Authority under the Payment of Gratuity Act, 1972. As I have said, the petitioner should not have approached the Writ Court.