Assistant Executive Engineer, Pwd, Mysuru vs Smt. Subbamma

Mr. B. Veerappa, J. - The Petitioners filed the present writ petition for a writ of certiorari to quash the order dated 30.11.2011 passed by the respondent No. 2 and the order dated 26.2.2013 passed by the respondent No. 3 at Annexures - A & B respectively.

It is the case of the respondent No. 1 that husband of the respondent No. 1 was working as daily wage employee in the petitioner No. 2-Department from 1.3.1972 to 30.6.2001. Subsequently, the service was regularized by Government Order dated 6.8.1990 retrospectively from 1.1.1990 and worked as regular employee and was in continuous service for more than 29 years. His last salary was Rs. 3,900/- and he is entitled to Rs. 67,250/- as gratuity. The petitioner No. 2 has paid Rs. 17,681/- as gratuity. The respondent No. 1 has filed an application before the petitioner No. 2 and further sought for differential amount of gratuity for a sum of Rs. 47,569/-.

The Respondent No. 2 considering the entire material on record, by order dated 30.11.2011, following the Division Bench Judgment of this Court in the case of Assistant Executive Engineer v. Sri Putta and others in Writ Appeal No. 2761/2000 dated 6.12.2000 held that respondent No. 1 is entitled to gratuity from the date the husband of the respondent No. 1 entered into service and accordingly directed the petitioners to pay differential gratuity of Rs. 47,569/- within 30 days failing which the respondent No. 1 is entitled to 10% interest. Aggrieved by the said order of the respondent No. 2, the petitioners filed an appeal before the Respondent No. 3, who after hearing the parties by the impugned order dated 26.12.2013, dismissed the appeal. Hence, the present writ petition is filed.

Sri. Dildar Shirolli, learned Government Pleader appearing for the petitioners, vehemently contended that the impugned orders passed by the respondents 2 and 3 granting differential amount of gratuity of Rs. 47,569/- is contrary to the material on record and contended that the services of husband of the respondent No. 1 came to be regularised only with effect from 1.1.1990. Therefore, the husband of the respondent No. 1 is entitled to gratuity only from the date of regularization and not earlier. Both the authorities below have not considered the same.

He further contended that the husband of the respondent No. 1 is not an ''employee'' as defined under section 2(e) of the Payment of Gratuity Act, 1972. Therefore, the impugned orders passed by the authorities below are liable to be set aside and also contended that the petitioners are not ''industry'' and therefore the respondent No. 1 is not entitled to any gratuity amount etc. Hence, sought to allow the writ petition.

Though the respondent No. 1 is served, she has remained unrepresented.

Having heard the learned Counsel for the parties to the lis, it is an admitted fact that the husband of the respondent No. 1 was working as daily wage employee in the petitioner No. 2 - Department with effect from 1.3.1972 to 30.6.2001 and his service was regularized with effect from 1.1.1990 retrospectively pursuant to the Government Order dated 6.8.1990. It is also not in dispute that the respondent No. 1 has worked continuously for more than 29 years. Though the learned Government Pleader submits that the petitioner is not an ''industry'' within the definition of section 2(j) of the Industrial Disputes Act, 1947 and the husband of the respondent No. 1 is not an employee as contemplated under section 2(e) of the Payment of Gratuity Act, 1972, the fact remains that admittedly in the present case, after considering the service, the petitioners have paid gratuity to the husband of the respondent No. 1 with effect from the date of regularization and not from the date of entry into service. Therefore, the contention of tire learned Government Pleader that the petitioners are not an ''industry'' and husband of the respondent No. 1 is not an ''employee'' cannot be accepted since the State Government has already paid gratuity and the dispute in the present case is only in respect of differential gratuity amount.

The Respondent No. 2 considering the entire material on record by order dated 30.11.2011, awarded differential gratuity amount of Rs. 47,569/- relying upon the Judgment of this Court in Sri Putta''s case (supra) which reads as under:

"4. We have examined the provisions of section 2-A of the Payment of Gratuity Act which makes clear that in case if the employee would have worked for more than one year or six months, in a calendar year and subsequently his services were to be regularized, the benefit comes back. In that view of the matter, the contention of the learned Government Pleader that the workman is entitled for the gratuity amount only from the date of regularisation cannot be accepted.

We do not find any merits in this appeal. Accordingly, the appeal is dismissed."

The Respondent No. 3 who is the appellate authority has concurred with the finding recorded by the Respondent No. 2 and held that the respondent No. 1 is entitled to differential gratuity amount as awarded by the respondent No. 2 and therefore the contention of the learned Government Pleader on behalf of the State that the husband of the respondent No. 1 is not an employee within the definition of section 2(e) of the Payment of Gratuity Act, 1972 for payment of differential amount of gratuity cannot be accepted.

For the reasons stated above, the respondents 2 and 3 are justified in granting differential amount of gratuity to the respondent No. 1. Petitioners have not made out any ground to interfere with the impugned orders under Articles 226 and 227 of the Constitution of India.

Accordingly, writ petition is dismissed. Petition Dismissed.