State of Maharashtra vs Navinchandra Brijratanlal Shah and Others

A.M. Khanwilkar and V.K. Tahilramani, JJ.—These review petitions have been filed by the State of Maharashtra to recall the common order dated 25.9.2012 passed in the respective petitions. In that decision, we have held that the writ petitioners are entitled for benefit of gratuity amounts having tendered resignation. For taking that view, we have primarily relied on the provisions contained in the Payment of Gratuity Act, 1972, in particular, section 4 thereof, which was pressed into service by the writ petitioners.

We are pained to place on record that Counsel appearing for the State of Maharashtra during the hearing of writ petitions did not even remotely argue the question now posed to us in the present review petitions. On the contrary, the arguments of both sides proceeded on the basis that the Payment of Gratuity Act, 1972 was applicable to the case on hand. It is on that premise the judgment was delivered and in support of the opinion, reliance was placed on the exposition of the Apex Court in the case of J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of U.P. and Others,

It is now accepted by the Counsel for the original writ petitioners that the provisions of Payment of Gratuity Act, 1972 have no application to judicial officers, in particular and State Government employees, in general. Once this position is accepted, the basis on which the Court proceeded to answer the issue in favour of the original writ petitioners would fall to the ground. Hence, the judgement in question deserves to be recalled and the respective writ petitions will have to be restored to file, to be heard afresh.

We place on record the argument of the original writ petitioners that the principle underlying the opinion recorded by us, in the judgment under review, would still be relevant for interpretation of Rule 111 of the Maharashtra Civil Services (Pension) Rules, 1982, as it refers to "retirement" of the employee which must include snapping of ties with the employer on account of a valid resignation by an employee. However, this is a new point urged before us, which will have to be considered afresh in the writ petitions. We should not be understood to have expressed any view in that behalf one way or the other.

We may observe that some caution and proper assistance by Counsel for both sides would have saved this embarrassment of recalling the decision which is founded on the arguments as were advanced before the Court. It is trite to observe that the quality of judgment rendered by the Court variously depends on the industry of the Bar in preparation and presentation of the matters in issue during the arguments. This is a classic example of both sides arguing the case on the basis of inapplicable law. We may leave the matter at that. For the aforesaid reasons, the judgment under review is recalled. Instead, the writ petitions are restored to the file to its original number, to be considered and decided afresh. Office to place the said writ petitions before the appropriate Bench for hearing.