The Court quashed an order of the Controlling Authority under the Payment of Gratuity Act, 1972, holding that the respondent-husband was governed by the Maharashtra Civil Services (Pension) Rules, 1982, and thus outside the Act's definition of 'employee'.
Order dated 19th April, 2001 of the Controlling Authority is quashed and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.860 OF 2004
The Greater Mumbai Milk Scheme Vs.
Smt. Mariambi Ebrahim Hajoo
..Petitioner.
..Respondent.
Ms. Imam Calcuttawala, AGP for the Petitioner. Mr. O.P. Kutty with Mr. S.M. Shetty for the Respondent.
CORAM: DR. D.Y. CHANDRACHUD, J.
15th September, 2006.
P.C. :
Greater Mumbai Milk Scheme which is an organisation of the Government of Maharashtra. The Dispute relates to the gratuity dues of the husband of the Respondent. The employee concerned, Ibrahim Dawood Hajoo was working as a welder under the Greater Mumbai Milk Scheme. The employee in this case retired on 31st August, 1991. During the course of his employment, he was allotted government quarters being Quarter No.D/7, Worli Dairy Quarters, Worli, Mumbai 400 018. Under the
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applicable rules the employee was required to vacate the quarters within three months from the date of retirement. The employee, however, continued to occupy the quarters even thereafter. The employee expired on 31st January, 1995. An amount of Rs.35,640/- was sanctioned as gratuity by the Accountant General, Pay & Accounts Office, Mumbai on 2nd July, 1999 under the Maharashtra Civil Services (Pension) Rules, 1982. After the order was received by the Petitioner on 12th August, 1999, the Respondent was called upon to collect the amount of gratuity payable to her husband by communications dated 25th January, 2000, 3rd July, 2000 and 8th December, 2000. It has been stated that since the employee was a government servant and was covered by the Maharashtra Civil Services (Pension) Rules, 1982 he was paid his other dues such as GPF, GIS and pension under those rules. Family Pension has accordingly been released to the Respondent. The total dues on account of gratuity were computed in accordance with Rule 111(1) under which a government servant who has completed five years qualifying service and has become eligible for service, gratuity and pension is to be granted on his
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retirement gratuity equal to one-fourth of his pay for each completed six monthly period of qualifying service, subject to a maximum of 16 and half times the pay. The qualifying service of the employee in the present case was computed at 33 years. There were 66 completed six monthly periods of qualifying service. The last drawn basic pay was Rs.2,160/- and accordingly the gratuity computed was Rs.35,640/-.
a communication dated 11th August, 2003 was addressed to the Respondent.
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(b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease. The expression 'employee is defined by Section 2(e) as follows :
“employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine oilfield, plantation, port, railway company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity].”
The definition of the expression 'employee' therefore clearly
excludes any person who holds a post under the Central or State Government and is governed by any other Act or by any Rules providing for the payment of gratuity. It has not been disputed before the Court that the deceased employee during the course of his service held a post under the State. The Greater Mumbai Milk Scheme is run as a Department of the State. The only submission that was urged was that the Maharashtra Civil Services (Pension) Rules 1982 could not have applied to the employee in the present
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case who had joined service prior to the enforcement of the Rules. There is no merit in the submission. Upon the enforcement of the rules, the rules would uniformly apply to all employees who are in service as on that date and those who join service thereafter. Rule 2 of the Pension Rules specifies that except where it is otherwise expressed or implied, the rules apply to all members of services and holders of posts whose conditions of service the Government of Maharashtra is competent to prescribe. The deceased employee was not an employee within the meaning of Section 2(e) of the Payment of Gratuity Act, 1972 since he held a post under the State Government and was governed by the provisions of the Maharashtra Civil Services (Pension) Rules, 1982. The Controlling Authority whose jurisdiction is circumscribed by Section 8 could not have exercised jurisdiction in the matter in respect of the claim for gratuity of an employee who was not governed by the Payment of Gratuity Act, 1972. The impugned order of the Controlling Authority will therefore have to be quashed and set aside and is accordingly quashed and set aside.
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that having regard to the parameters of the issue which has arisen before the Court, it has not been necessary for this Court to express any view in regard to the correctness of the deduction that has been made from the amount of gratuity due and payable in respect of the deceased employee. The Respondent would be at liberty to independently espouse such remedy as is available in law, if she is aggrieved by any of the deductions so made. The Petition is allowed in the aforesaid terms. There shall be no order
as to costs.
2 issues framed by the court
Whether the Maharashtra Civil Services (Pension) Rules, 1982 apply to an employee who joined service prior to the enforcement of those rules.
Whether the Controlling Authority under the Payment of Gratuity Act, 1972 has jurisdiction to entertain a claim for gratuity against a State Government employee governed by other rules.
3 provisions across 1 enactments
The Greater Mumbai Milk Scheme
Smt. Mariambi Ebrahim Hajoo
DR. D.Y. CHANDRACHUD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
