Ajit Ram Sahu vs State Of Chhattisgarh

Rajani Dubey, J

The petitioner has preferred the present writ petition praying for the following reliefs:-

“10 1) That, appropriate writ may be issued against the respondent authorities directing them for payment of amount of gratuity to the petitioner by considering past service rendered by him in work charge and contin-gency establishment since 01-12-1979 and 12 percent annual interest of upon it.

102) Any other relief may also be granted to the peti-tioner which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

103) The cost of the petition may be allowed.”

Brief facts of the case are that the petitioner was appointed on daily wage basis on 01.12.1979 in the office of respondent No.3 at Kholar Ghat Dam. The appointment of petitioner was tempo-rary and he was paid from work changed and contingency estab-lishment on month basis and also he was allowed benefit of leave and other facilities, as provided to the temporary govern-ment employees. After working on the post of peon for about 30 years, petitioner was absorbed on the post of peon vide order dated 13-08-2008 passed by respondent No 2. The petitioner was placed in pay scale Rs.2550-55-266-60-3200 per month with initial salary of Rs.2550/-. The petitioner was absorbed under work charged establishment and contingency establishment as site/store peon. While working on the post of peon petitioner at-tained the age of superannuation and therefore he was retired from service on 30-08-2010, but the respondent authorities have illegally not allowed the benefit of gratuity to the petitioner. The petitioner applied before the authority under payment of Gratuity Act 1972, Rajnandgaon and vide order dated 21-02-2013 the controlling authority under the payment of Gratuity Act directed the respondents to pay Rs.1,21,153.84/- (Rs One Lakhs Twenty One Thousand One Hundred Fifty Three and Eighty Four Paisa) to the petitioner as the amount calculated under the Gratuity Act, but despite the order passed by the controlling authority, the amount was not paid to the petitioner therefore RCC was issued by Labour Officer, Rajnandgaon against the respondent for re-covery of the grant of gratuity. Finally vide 29-11-2013 respondent No.2 granted sanction for payment of gratuity of Rs1,21,153.84 (Rs One Lakh Twenty One Thousand One Hun-dred Fifty Three and eighty four paise) without any interest to the petitioner. The petitioner submitted his representation dated 27-04-2015 for payment of gratuity and it is there after order dated 20-07-2015 has been passed denying his entitlement for pay-ment of gratuity, against which the present writ petition has been filed.

Learned counsel for the petitioner submits that the impugned order is contrary to law and facts and circumstances of the case. As per Rule 2 (d) of Chhattisgarh work Charged Staff and Contin-gency Paid Staff (Gratuity Benefit) Rules, 1962, petitioner has ful-filled the requisite number of years of qualifying service after 17-09-1962 which entitled him for payment of gratuity, but without any plausible reasons the respondent authorities have denied payment of gratuity. As per Rule 2 (a) read with part 1 of the Ap-pendix attached to the Rules of 1962, at serial number 13, the post of chowkidaar/peon is there, therefore being a member of work charged staff gratuity lies in favor of petitioner. Though the petitioner called upon the controlling authority under Payment of Gratuity Act for Redressal of his grievance for nonpayment gratu-ity and as per said Act 5 years service is required to be com-pleted for entitlement of gratuity, but the requirement of qualifying of service of 5 years in Payment of Gratuity Act is not applicable upon the petitioner, hence the petitioner is entitled for gratuity under Rules, 1962. Therefore, the writ petition deserves to be al-lowed. Reliance has been placed on the judgment rendered by the Hon’ble Apex Court in the matter of Netram Sahu vs State

of Chhattigarh and Another, passed in Civil Appeal No.1254/2018, decided on 23.03.2018.

Learned State counsel opposes the submission made by the peti-tioner’s counsel and submits that the petitioner was never issued any appointment order on the post of Peon by the Office of the respondent authorities. The services of the petitioner were only engaged as daily wager as Site/Store Chowkidar. Vide order dated 13/08/2008, the services of the petitioner were regularized as Site/Store Chowkidar and as per the terms and conditions of the said order, under Rule 12 of the C.G. Government Servants (Temporary & Quasi-permanent Service) Rules, 1960, the ser-vices of the petitioner may be terminated at any time by giving a month's notice or in lieu of one month's notice the services can also be terminated by giving him one month's salary and al-lowances. The impugned order dated 20/07/2015 i.e. Annexure P-1 has been passed by relying on the letter dated 25/02/2015 issued from the Office of the Chief Engineer, Mahanadi Godawari Kachhar, Water Resources Department Raipur, Chhattisgarh. As per the order dated 16/12/2013 passed by this Court in W.P (L) No. 178/2013, a daily wager who has not attained the status of temporary employee, before his regularization, is not entitled to count the period of his prior service before regularization. The services of the petitioner were regularized vide order dated 13/08/2008 and he has retired on 31/08/2010. Therefore, the to-tal period of his service after his regularization is only 2 years and 18 days in the work charged establishment and only those em-ployees of the government are entitled for payment of gratuity who have rendered atleast 5 years or more service after regular-ization or they have worked for atleast 5 years or more in the work charged and contingency paid establishment. The proviso of Rule 3 of the M.P. / C.G. Work Charged Staff And Contingency Paid Staff (Gratuity Benefits) Rules, 1962 specifically states that no gratuity shall be paid if the continuous qualifying service ren-dered is less than 5 years, as such no case is made out in favour of the petitioner. Therefore, the writ petition deserves to be dis-missed.

Heard learned counsel for the parties and perused the material available on record.

It is not disputed in this case that the first date of joining of the petitioner in the Department is 01.12.1979 and his services were regularized vide order dated 13.08.2008 (Annexure-P/3).

The main objection of the respondents is that the total period of petitioner’s services after his regularization is only 2 years and 18 days. The respondents have relied on this Court’s judgment dated 16.12.2013 passed in WPL No.178/2013 in case of State of Chhattisgarh and another vs Netram Sahu, though the civil appeal against the same has been allowed by the Hon’ble Apex Court in Civil Appeal No.1254/2018, decided on 23.03.2018.

The Hon’ble Apex Court vide judgment dated 23.03.2018 held in paras 14, 15, 16 & 17 as under:-

“14. We do not agree with this submission of learned counsel for the respondent-State for more than one reason. First, the appellant has actually rendered the service for a period of 25 years; Second, the State ac-tually regularized his services by passing the order dated 06.05.2008; Third, having regularized the ser-vices, the appellant became entitled to claim its bene-fit for counting the period of 22 years regardless of the post and the capacity on which he worked for 22 years; Fourth, no provision under the Act was brought to our notice which disentitled the appellant from claiming the gratuity and nor any provision was brought to our notice which prohibits the appellant from taking benefit of his long and continuous period of 22 years of service, which he rendered prior to his regularization for calculating his continuous service of five years.

In our considered opinion, the High Court commit-ted an error in placing reliance on the decision of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the ser-vices of the appellant was actually regularized by the State and, therefore, the law laid down in Umadevi(supra) could not be relied on. Indeed, even the decision of Umadevi (supra) makes a distinction in cases and where the services stand regularized, the ratio of Umadevi to deny the relief would not apply.

In our considered opinion, once the State regular-ized the services of the appellant while he was in State services, the appellant became entitled to count his total period of service for claiming the gratuity amount subject to his proving continuous service of 5 years as specified under Section 2A of the Act which, in this case, the appellant has duly proved.

In the circumstances appearing in the case, it would be the travesty of justice, if the appellant is de-nied his legitimate claim of gratuity despite rendering “continuous service” for a period of 25 years which even, according to the State, were regularized. The question as to from which date such services were regularized was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularized by the State.”

In light of the above, it is clear that in this case also, the petitioner was working in the respondent Department since 01.12.1979 and in the year 2008, his services were regularized and in this case case also the State took 29 years to regularize the services of the petitioner and went on taking work from the petitioner on pay-ment of bigger salary. Therefore, considering the facts and cir-cumstances of the case as well as guidelines of the Hon’ble Apex Court, the writ petition is allowed and the impugned order/letter dated 20.07.2015 (Annexure-P/1) is hereby set aside.

The respondents are directed to release/pay the gratuity amount to the petitioner, as calculated by the Controlling Authority, within a period of 3 months from the date of receipt of copy of this order. If the said amount is not paid within the aforesaid period, then the same shall carry interest @ 9% per annum till its actual realiza-tion.

The writ petition stands allowed. No order as to costs.