DARSHAN ENGINEERING WORKS AMRITSAR Vs. CONTROLLING AUTHORITY

JUDGEMENT

(1.) BAKHSHISH Singh, Respondent was born on December 17, 1913, and was employed by the Petitioner on March 2, 1968. He submitted" his resignation on November 9, 1978, with effect from December 10, 1978. His resignation was accepted. After his release from employment he claimed gratuity. The amount of gratuity offered by the Petitioner (being short) was not accepted by the Respondent with the result that he moved the Controlling Authority -under Section 7 of the Payment of Gratuity Act (hereafter the Act) for the, determination of the amount of gratuity due to him. The Controlling Authority, - -vide order dated October 18, 1979, computed the amount of gratuity payable to the -respondent at Rs. 1,782. The Petitioner filed an appeal against the order of the Controlling Authority (P.1) -which was dismissed by the appellate authority, - -vide order dated March 6, 1890 (P. 2) The Petitioner has assailed the orders P. 1 and P. 2 in the present writ petition.

(2.) THE Learned Counsel for the Petitioner has argued that under the Scheme as also the provisions of the Act gratuity is payable to an employee up to the date of his superannuation if fixed in the contract or condition of service and in the alternative up to the age of 58 years. The argument proceeds that the Respondent had attained the age of 58 years before the Act came into force on September 16, 1972. The Respondent is, therefore, not entitled to any amount by way of gratuity. The contention is without merit. It is specifically provided under Section 4(l)(b) of the Act reproduced above that an employee shall be paid gratuity; on his retirement or resignation. Sub -clause (b) of Sub -section (1) is independent of Sub -section (a) thereof. It is, therefore, clear that an employee will be entitled to gratuity in terms of Sub -section (1) on his superannuation if he ceases to be an employee thereafter. Should the employee be appointed or continued in the employment after the date of his superannuation he will still be entitled to gratuity on his retirement or resignation when he would cease to be in the employment of the employer'. The Petitioner cannot disown the liability to pay the gratuity to the Respondent under the Act on the -ground that the latter had attained the age of 58 years before the Act come into force,

(3.) THE last contention of the Learned Counsel for the Petitioner is that Section 4(l)(b) of the Act to the extent it provides for payment of gratuity to an employee who voluntarily resigns from the job after having put in continuous service for not less than five years is ultra vires Article 19 (1)(g) of the Constitution inasmuch as the qualifying service of five years prescribed therein is too short and unreasonable. The argument proceeds that the gratuity under the Act is a reward for good efficient and meritorious service rendered by an employee for a considerable period and there is no justification for directing the employer to pay gratuity to one who voluntarily resigns job after having put in five years of service. The provision contained in Section 4 (1)(b) of the Act to the extent of voluntary resignation imposes an unreasonable restriction on the fundamental right of the employer to carry on business and is violative of the right guaranteed under Article 19(1)(g) of the Constitution. Reliance has been placed on Express Newspaper (Private) Ltd. and Ors. v. The Union of India and Ors. : AIR 1958 S.C 578. Amritsar Rayon and Silk Mills and their workmen, 1962 L.L.J. 224., Wenger and Company and Ors. and their Workmen, 1963 L.L.J. 403., and Messrs. British Paints India) Ltd. v. Its Workmen : AIR 1966 S.C. 732.