Dr. Mohammad Zafar Alam vs The Union Of India & Ors.

(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

The instant appeal has been preferred, challenging an order dated 29.01.2024 passed by the learned Single Judge in C.W.J.C. No. 16419 of 2022, whereby the writ petitioner/appellant has raised an issue as to whether he is entitled to gratuity on the basis of last twelve months’ salary which includes basic pay plus dearness allowance or only on the basis of the basic salary for the employees appointed in the Consulate Office of India situated in foreign country.

Factual aspects of this case is that the writ petitioner/appellant was appointed by an order dated 12^th July, 1998 issued by the Consulate General of India, Jeddah as the Arabic/English Typist initially on probation for a period of six months and thereafter, on contractual basis till the date of his retirement or superannuation, which was fixed at sixty years.

It is not in dispute that the appellant discharged his duty to the satisfaction of the authority till the date of his superannuation. After superannuation, he received his terminal benefit and as a part of terminal benefit, he received gratuity only in terms of twelve months’ basic pay, not in terms of the salary.

By filing the above-mentioned writ petition, it was contended by the writ petitioner/appellant that he was entitled to get the amount of gratuity calculated on the basis of twelve months’ salary and not on the basic pay alone. It is also contended by the appellant that in foreign country, especially in Jeddah, where he was appointed, he used to get Cost of Living Allowance (hereinbelow referred as COLA) in lieu of dearness allowance. Therefore, his basic salary ought to be calculated on the basis of his last basic salary plus COLA and the gratuity was required to be fixed on the said amount.

The writ petitioner/appellant was compelled to file a writ petition bearing No. 16419 of 2022, when the respondent authority denied to add COLA with the basic salary to fix his gratuity.

The learned Single Judge by passing the impugned order held that for the purpose of gratuity, COLA cannot be added with the basic salary for computation of last pay drawn by the writ petitioner/appellant. Since the aforesaid writ petition was dismissed, the present appeal has been filed by the appellant.

The learned Advocate appearing on behalf of the appellant refers to a copy of the written contract with regard to the payment of different kinds of remunerations as well as period of leave entitled by the employees of the Consulate, working hours, over time, retirement age, etc. He, especially, refers to clause (c) of the said contract which was duly executed by the competent authority in the Central Government and the concerned employee, which reads thus :-

It is contended by the learned Advocate appearing on behalf of the appellant that in the aforesaid clause, it is clearly stated that the salary would mean last salary drawn at the time of termination. According to the learned Advocate for the appellant, salary includes basic salary plus dearness allowance and in case of an employee working in the foreign Consulate Office salary includes basic pay plus COLA. Further, he also refers to Annexure R-2 of the counter affidavit filed on behalf of the respondents on 25.07.2023, where it is clearly stated that the payment of gratuity to an employee will be made on the basis of last basic pay drawn at the time of retirement/superannuation. The employee will also be entitled to gratuity for the fraction of the year in respect of the period spent in service.

It is further contended on behalf of the appellant that the notification dated 12.10.2012, cannot operate as modification or cessation of earlier contract executed by and between the Government and the employee concerned. In other words, it is submitted by him that the word “salary” cannot be interpreted as only basic pay and the gratuity cannot be calculated on the basis of such basic pay.

Therefore, the learned Advocate for the appellant has prayed for modification of the order dated 29.01.2024 passed by the learned Single Judge in C.W.J.C. 16419 of 2022.

The learned Advocate appearing on behalf of the State, on the other hand, submits that by notification dated 12.10.2012, the word ‘salary’ has been clarified in relation to fixation and payment of gratuity to an employee working in the Consulate of India, situated in a foreign country. By virtue of the said notification, it was declared that the amount received by an employee under the heading of “Cost of Living Allowance” cannot be added in case of fixation of gratuity.

The writ petitioner/appellant superannuated from the service on 31.12.2019, and during his service period, he did not challenge the notification dated 12.10.2012. In other words, no challenge was made that the notification dated 12.10.2012 could not take away the right of an employee from getting gratuity in terms of last drawn basic pay plus dearness allowance or COLA.

Since the writ petitioner/appellant did not take any attempt to challenge the notification dated 12.10.2012, which deemed to be accepted by his conduct. Therefore, after superannuation, he cannot claim gratuity on the basis of his basic salary plus COLA.

In view of our above observations, we do not find any illegality in the order impugned in the present writ petition, and accordingly, the instant appeal is dismissed.