The Commissioner, Sathyamangalam Municipality, Sathyamangalam vs The Deputy Commissioner of Labour (Appellate Authority under Payment of Gratuity Act), Salem, The Assistant Commissioner of Labour (Controlling Authority under Payment of Gratuity Act), Salem and T. Mahali

A. Kulasekaran, J.—These writ petitions have been filed praying for Writ of Certiorari to call for the records in P.G.A.Nos.21/95 and

10/95 respectively dated 31.8.95 on the file of the Appellate Authority the first respondent herein confirming the order dated 21.11.94 made in P.

G. Petition no.337/94 on the file of the Controlling Authority, the 2nd respondent herein and to quash the same.

The brief facts culled out from the affidavits filed by the petitioner are: The third respondent herein was employed as a sweeper under the

petitioner municipality and attained the age of superannuation on 28.2.1991. As per G.O.Ms.No.600, Municipal Administration and Water Supply

Department, dated 14.9.89 all employees of municipalities are now deemed to be Government employees and accordingly after retirement, the

respondent is being paid pension of Rs.375/- every month apart from the benefits payable under the Death/Retirement Gratuity Scheme. In spite of

the third respondent deriving the above benefits, he chose to make an application on 10.5.94, 3 years after his retirement, under Sec. 4 of the

Payment of Gratuity Act (hereinafter referred to as the Act) before the Controlling Authority the 2nd respondent herein. The said application was

opposed by the petitioner herein on two grounds 1) there was a huge delay in making out the application and 2) the third respondent could not

avail of double benefits i.e. get pensionary benefits and also claim gratuity, since, the Municipalities were exempt from the provisions of the Act.

The 2nd respondent herein condoned the delay and proceeded to take up the application as P. G. Petition No.337/94. While passing an order in

that petition, the 2nd respondent upheld the contentions of the petitioner municipality that the third respondent could not derive double benefits-

both under the Pension Scheme as also under the Payment of Gratuity Act. However, the second respondent chose to hold that the petitioner

municipality though cannot be burdened in entirety, it was bound to pay some amount under the Act, after deducting the amount paid under the

Death/Retirement Gratuity Scheme, and arrived at a sum of Rs.23,536/- as the amount payable under the Act to the third respondent herein.

Thereafter the 3rd respondent herein preferred an Appeal in P.G.A.No.10/95 before the Appellate Authority the first respondent herein in so far

as the denial of interest on the amount awarded. The petitioner municipality also filed an appeal in PGA No.21/95 before the first respondent

challenging the order of the 2nd respondent. The first respondent without going into the maintainability of the petition filed by the third respondent

allowed the appeal PGA.10/95 filed by the third respondent and awarded by the 2nd respondent. Consequently the appeal filed by the petitioner

municipality in PGA 21/95 was dismissed. It is against the said order of the 1st respondent the petitioner municipality has filed W.P.No. 4009/96

and against the order passed by the 1st respondent in P.G.A.No.10/95 awarding 12% p.a. interest on the amount awarded by the 2nd respondent

the petitioner herein has filed W.P.No.4010/96.

Heard the learned counsel appearing for both the sides.

Learned counsel appearing for the petitioner canvassed before me that the orders of the respondents 1&2 herein are against law and opposed

to all principles of natural justice, that the respondents have failed to see that the provisions of the Payment of Gratuity act will not apply to the

petitioner since the petitioner is not an establishment as contemplated under Sec. 2(f) of the Act, that the authorities also failed to see that the

petitioner municipality is exempted from the provisions of the Act as provided for under Sec. 5 of the Act, that the authorities having held that the

third respondent cannot derive double benefit by claiming pension as also benefits under the Death /Retirement Gratuity Scheme and now the

benefits under the Payment of Gratuity Act, ought to have dismissed the application filed by the third respondent herein that the authorities ought to

have seen that the third respondent being a Government servant availing of the pensionary benefits cannot claim the benefits under the Payment of

Gratuity Act and that the first respondent ought to have seen that the award of interest is in excess of authority and not contemplated under Sec.

7(3-A) of the Act, since, even assuming the provisions are applicable, the delay has been occasioned only by the third respondent in making the

application. Learned counsel for the petitioner also argued that the authorities failed to see that the huge delay on the part of the third respondent

cannot be condoned by the 2nd respondent as contemplated under Rule 10 of the Tamil Nadu Payment of Gratuity Rules, 1973 and that the 2nd

respondent ought not to have entertained the application made by the third respondent without directing him to exhaust the remedy available under

Rule 7 of the Tamil Nadu Payment of Gratuity Rules, 1973.

Learned counsel appearing for the 3rd respondent argued that the order of the controlling authority in directing the petitioner to pay the 3rd

respondent gratuity being a sum of Rs.23,536 and the order of the Appellate Authority awarding interest thereon are well founded and rendered

according to the sound principles of law applicable in this regard . They are based on the provisions of payment of Gratuity Act. Both the orders

are well considered orders. There is no valid ground made in this writ petition to assail these orders. It is also argued by the learned counsel for the

third respondent that the authorities in respect of grant of Gratuity have not burdened the municipality doubly and they have only burdened the

municipality with liability so far as the laws permits and law requires, that it is settled legal decision that the worker of an establishment to which

Gratuity Act is applicable is entitled to gratuity under the Act notwithstanding any other scheme that may be in vogue that the contention of the

petitioner that the third respondent cannot claim the benefit under the Payment of Gratuity Act as he is a Government servant availing pensionary

benefit is wrong and that the award of interest is not excessive but equitable and in consonance with section 7(3A) of Payment of Gratuity Act.

The 3rd petitioner herein has filed P.G. Petition No. 337 of 1994 before the 2nd respondent for payment of gratuity. The 1st respondent

awarded a sum of Rs. 23,526/- but disallowed interest for the delayed payment. Against the said order, the petitioner herein has filed P.G.A. No.

21 of 1995. The 3rd respondent has also filed an appeal in P.G.A. No. 10 of 1995 against denial of interest. The 1st respondent by his common

order allowed the appeal filed by the 3rd respondent thereby granted interest at the rate of 12% per annum from 28-02-1991 till the date of

payment. The appeal filed by the petitioner herein in P.G.A. No. 21 of 1995 was dismissed in toto.

W.P. No. 4009 of 1996 was filed against the order passed in P.G.A. No. 21 of 1995 and W.P. No. 4010 of 1996 was filed against the order

passed in P.G.A. No. 10 of 1995. The prayer in W.P. No. 4010of 1996 is wrongly worded as if the appellate authority has confirmed the order

of the controlling authority. In fact, the appellate authority has set aside the order of denial of interest is concerned passed by the controlling

authority. As per the scheme of the Act, the local authorities also come under the definition of Establishment. According to Sec. 2(e) Establishment

means any office or department of the Government or the local authority as such the petitioner comes under the definition of Establishment. The

3rd respondent was employed under the petitioner and the Act is applicable to him which came into force from 21-08-1972. The length of service

of the third respondent is not denied by the petitioner. The 3rd respondent is entitled to gratuity amount within 30 days from the date of retirement

failing which the petitioner is liable to pay interest. It is brought to the notice of this Court that the 3rd respondent herein has attained the age of

superannuation on 28-02-1991 as such he is entitled to payment of gratuity within 30 days from 28-02-1991. The appellate authority after careful

consideration of the provisions of the Act has rightly ordered gratuity and interest at the rate of 12% per annum, however ordered interest with

effect from 28-02-1991 till the date of disbursement and the date of superannuation is treated wrongly as the date reckoned to be calculated for

payment of interest. As per the Act, 30 days time is given to Municipality to make the payment as such, I modify the order of the first respondent

to the effect that the petitioner is liable to pay interest at the rate of 12% per annum after the expiry of 30 days from 28-02-1991. In other aspect,

the order passed by the 1st respondent is confirmed.

With the result, both the writ petitions are liable to be dismissed and accordingly dismissed. No costs.