MINERAL AREA DEVELOPMENT AUTHORITY Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application filed by the petitioners, namely, Mineral Area Development Authority, a very short but interesting question arises as to whether an employee, respondent No. 1 who was originally drawing a salary of less than Rs. 1000/- per month continuously for more than five years on the date of commencement of the Payment of Gratuity Act, 1972, (hereinafter referred to as the Act) but subsequently drawing more than the statutory limit per month on the day of his retirement, will be deemed to be an employee within the meaning of Section 2(e) of the Act.

(2.) The fact of this case is not in dispute. The respondent- workman was previously appointed in the Jharia Mines Board of Health and Jharia Water Board constituted under the provisions of the Bihar and Orissa Mining Settlement Act, 1920 and Jharia Water Supply Act, 1914. By subsequent legislation, namely, Bihar Coal Mining Area Development Authority Act, 1986, the aforesaid two Boards were replaced. Subsequently by amendment the name of the Bihar Coal Mining Development Authority was changed to the Mineral Area Development Authority. All the employees of the aforesaid Jharia Mines Board of Health and Jharia Water Board have been retained in service at the time of taking over by the petitioner Authority. The concerned workman was appointed in the year 1953 at the monthly salary of Rs. 500/-only and retired as head clerk with effect from June 30, 1985 and his salary was subsequently increased and at the time of retirement he was getting more than Rs. 1000/- per month. Since the employer failed to pay the gratuity even after complying Rule 7 of the Payment of Gratuity (Bihar) Rules 1972 (hereinafter referred to as the Rules) the concerned workman filed an application in terms of Rule 10 of the Rules before the respondent Controlling Authority, namely Deputy Labour Commissioner, Bokaro Steel City, some time in the year 1993, which was registered as P.G. Case No. 4 of 1993. The Petitioner-Authority has appeared before the respondent Controlling Officer and tiled written statement stating, inter alia, therein that the concerned respondent workman is entitled to a sum of Rs. 28,943.00 only as gratuity according to the Rules followed by the Petitioner Authority and, accordingly, directed the concerned respondent to receive the payment and further to pay a sum of Rs. 4,62,579.00 as penal rent of the quarter which was in his occupation after retirement. It is further alleged that after adjustment of the said amount, there is no due to the concerned respondent on account of gratuity. A supplementary rejoinder was also filed stating therein that the provision of the Act is not applicable to the petitioner as it is not an establishment within the meaning of Section 2(6) of the Bihar Shops and Establishments Act, 1953 (hereinafter referred to as the 1953 Act).

(3.) In this case a counter affidavit has been filed on behalf of the concerned employee stating, inter alia, therein that he is an employee within the meaning of Section 2(e) of the Act and fulfils all the requirements as envisaged under Section 4 of the Act for payment of gratuity. It is further stated that after retirement he was given reemployment and in that capacity he was occupying the quarter which was allotted to him when he was in regular service of the petitioner Authority. It is further alleged that his son, who was also a clerk under the petitioner, was allotted quarter in the very beginning, who had refused to accept the same since he was living with his father and after the retirement of his father the quarter was allotted to him. In the premises it is submitted that the action of the petitioner and its officials charging the penal rent of the quarter is wholly illegal, arbitrary and uncalled for. The petition filed under Rule 10 of the Rules was subsequently amended by the concerned workman since the amount of salary mentioned in the original petition did not include the Dearness Allowance which was being paid to the employee during the service and, accordingly, the said amendment was accepted by the respondent Controlling Authority. The respondent Controlling Authority after hearing the parties and going through the materials on record has held that the applicant, namely, the respondent No. 3 is an employee within the meaning of Section 2(e) of the Act and having fulfilled the conditions as required under Section 4 of the Act for payment of gratuity has directed the petitioner Authority to pay a sum of Rs. 40,064.00 along with an interest at the rate of 10% per annum from the date of order, copy of the said order is made Annexure-5 to this writ application. The petitioner being aggrieved by the order passed by the respondent Controlling Authority has filed the instant writ application for the relief as mentioned above.