Narayan Dutt Punera @APPELLANT@Hash State Of Uttarakhand

Sharad Kumar Sharma, J

The petitioner, in the present writ petition, has prayed for the following reliefs :-

“i) issue a writ, order or direction in the nature of mandamus commanding the respondents to calculate and release the Pension and its arrears,

Gratuity, Leave Encashment, arrears of 5th Pay Commission, 6th Pay Commission and other admissible dues on the basis of last drawn salary.

ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to award 10% interest per annum on the amount of the

Gratuity in pursuance of the notification dated 01-10-1987 in favour of the petitioner.

iii) issue any suitable order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case.

iv) award the cost of the writ petition to the petitioner.â€​

The short case, which has been pleaded by the petitioner, in the Writ Petition is that he has submitted that after being inducted with the respondents

as back as in the year 1975, as a daily wager employee, he has worked sincerely in the plantation and nursery division of Forest Department. He

worked in the said capacity till he was superannuated on 31st December, 2010. The petitioner has worked in the Department and it is an admitted

case of the respondent that the services of the petitioner were subsequently regularized on the post of Chowkidar by an order dated 9th January, 2004

and as a result thereto, he joined after regularization in services as Chowkidar on a regular basis on 30th January, 2004. But if the total period of

service is calculated, right from the date of his initial induction as a daily wager in 1975, he has rendered almost two decade of the services by the

date, his services were regularized in 2004. After the regularization of service the petitioner has, in fact, completed only about seven years of regular

service and, hence, the respondent were taking it as to be an embargo for not paying the pensionary benefits to the petitioner as having failed to work

regularly for the stipulated period of ten years to make him eligible for the entitlement of pensionary benefits.

The petitioner has raised his claim before the respondent by filing several representations based on the various judgments laid down by the Courts,

including the one rendered by the Hon’ble Apex Court in the case of Netram Sahu Vs. State of Chhattisgarh and another reported in (2018) 5

SCC 430. The Hon’ble Apex Court considering the impact of Section 4 of the Payment of Gratuity Act, 1972, has held that the entitlement of the

gratuity would depend upon the total length of services rendered by an employee and not on the basis of the date of regularization. In reference to it,

the petitioner has placed reliance on the judgment as rendered by the Hon’ble Apex Court in the case of Netram Sahu (Supra), wherein, the Court

has held that continuous service of 22 years of daily wager and whose services were later regularized, would be eligible to be considered for payment

of gratuity after including the period of service rendered as daily wager. Para 14, 16 and 17 of the said judgment reads as under :-

“14. We do not agree with this submission of learned counsel for the respondent-State for more than one reason.

14.1. First, the appellant has actually rendered the service for a period of 25 years;

14.2. Second, the State actually regularized his services by passing the order dated 06.05.2008;

14.3. Third, having regularized the services, the appellant became entitled to claim its benefit for counting the period of 22 years regardless of the post

and the capacity on which he worked for 22 years;

14.4. 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, once the State regularized 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 denied 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.â€​

In view of the above and in view of the ratio also laid down by the Hon’ble Apex Court in the aforesaid judgment and considering the age of

the petitioner, it would be in all fitness of things that the respondent Nos. 3 and 4 will consider the representations submitted by the petitioner for

payment of pensionary benefits and gratuity, annexed as annexure No. 6 to the Writ Petition, and would decide the same after considering the ratio as

laid down by the Hon’ble Apex Court in the case of Netram Sahu (Supra). The decision on the representation is to be positively taken within a

period of six weeks from the date of presentation of the certified copy of the order.

Subject to the above observations, the Writ Petition is disposed of. Respondent Nos. 3 and 4 will also consider the issue of interest as statutorily

contemplated under the Payment of Gratuity Act.

There would be no order as to costs.