Smt. Tijiya Bai Vs State Of Chhattisgarh

3 - The Appellate Authority, Under Payment Of Gratuity Act, Office Of Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondent(s)

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WA No. 394 of 2016

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1 - Thakur Ram S/o Shri Jhhumuk Sahu, Aged About 37 Years R/o Village Kharra, Post Teligundara, Tahsil Patan, District Durg, Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Work Department, Division Durg, District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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3 - The Appellate Authority, Under Payment Of Gratuity Act, Office Of Labour Commissioner Chhattisgarh, Indrawati Bhawan, Naya Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondent(s)

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WA No. 393 of 2016

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1 - Harishchandra S/o Late Marar, Aged About 64 Years R/o Village And Post Jaamgaon, Tahsil Patan, District Durg, Chhattisgarh, Chhattisgarh

--- Appellant

Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Works Department Bh/ Sa, Durg Division, Durg, District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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--- Respondent(s)

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WA No. 390 of 2016

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1 - Smt. Tijiya Bai D/o Palturam, Aged About 66 Years R/o Village Banjaripara Utai, Post Utai, Tahsil And District Durg, Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Works Department, Bh/ Sa, Durg Division, Durg, District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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--- Respondent(s)

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WA No. 379 of 2016

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1 - Smt. Sawana Bai D/o Paras Ram, Aged About 66 Years R/o Village Felari, Post Selud, Tahsil Patan, District Durg, Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Works Department Bh/ Sa, Durg Division, Durg, District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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--- Respondent(s)

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WA No. 380 of 2016

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1 - Hemin Bai D/o Kaliram, Aged About 67 Years R/o Village Indira Nagar, Patan, Tahsil Patan, District Durg Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Thorugh The Secretary, Public Works Department Mahanadi Bhawan, Mantralaya, Naya Raipur Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Work Department Bh/sa Durg Division, Durg, District Durg, Chhattisgarh, District : Durg, Chhattisgarh

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3 - The Appellate Authority Under Payment Of Gratuity Act, Office Of Labour Commissioner, Chhattisgarh, Indrawati Bhawan, Naya Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondent(s)

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WA No. 384 of 2016

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1 - Smt. Sato Bai D/o Sonam Gond, Aged About 67 Years R/o Village Selud, Post Selud, Tahsil Patan, District Durg, Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Work Department, Division Durg, District Durg Chhattisgarh, District : Durg, Chhattisgarh

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3 - The Appellate Authority, Under Payment Of Gratuity Act, Office Of Labour Commissioner Chhattisgarh, Indrawati Bhawan Naya Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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6

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--- Respondent(s)

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WA No. 392 of 2016

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1 - Bhikham S/o Shri Budhram, Aged About 67 Years R/o Village Akalai, Post Surpa, Tahsil Patan, District Durg Chhattisgarh, Chhattisgarh

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--- Appellant

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Versus

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1 - State Of Chhattisgarh Through The Secretary, Public Works Department, Mahanadi Bhawan Mantralaya, Naya Raipur Chhattisgarh, Chhattisgarh

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2 - Executive Engineer, Public Work Department, Division Durg, District Durg Chhattisgarh, District : Durg, Chhattisgarh

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3 - The Appellate Authority, Under Payment Of Gratuity Act, Office Of Labour Commissioner Chhattisgarh, Indrawati Bhawan Naya Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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--- Respondent(s)

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(Cause title taken from CIS)

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For Appellants :Shri Rajkumar Pali, Advocate
For Respondents/State :Shri Yashwant Singh Thakur, Additional
Advocate General

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Bibhu Datta Guru, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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21.07.2025

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Heard Shri Rajkumar Pali, learned counsel for the appellants. Also heard Shri Yashwant Singh Thakur, learned Additional Advocate General for the State/Respondents.

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By the present writ appeal, the appellant/writ petitioner seeks setting aside the order dated 22.02.2016 passed by the learned Single Judge in WPL No. 06/2016 and confirmed the order dated 30.04.2014 passed by the Controlling Authority.

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The case of the writ petitioner was that he was engaged as daily wager in the work charged establishment and as such he his governed by different set of rules. According to the writ petitioner he acquired the status of a temporary employee after five years of service and as such he is entitled for the calculation of his entire service period including the period spent on daily wages for calculation of the amount of gratuity under Section 4 of the Payment of Gratuity Act 1972.

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The said writ petition along with other connected matter considered by the learned Single Judge and by common order

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dated 22.02.2016 dismissed the same holding that in view of the judgment of the Division bench of this Court in W.A. No. 240/2014 (Netram Sahu Vs. State of Chhattisgarh & Others)

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the period spent on daily wages cannot be counted for payment of gratuity. The learned Single Judge dismissed the writ petition observing as under:-

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“5. In view of the above, the plea regarding attainment of status of temporary employee would hardly have any effect on the decision making because when the initial appointment itself was dehors the constitutional scheme of appointment, the period spent on daily wages pursuant to the said illegal appointment would not be available for calculation for the purpose of Section 4 of the Act, 1972. Subsequent regularization would only make the person entitled for retiral benefits in terms of the Rules but a daily wager would not be entitled for calculation of the period spent on daily wage for the purpose of payment of gratuity.

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6. In all the cases, the State Government has paid the amount of gratuity in terms of entitlement of each of the petitioners by calculating the period of service after regularization and the Controlling Authority has directed for payment of balance amount by taking into consideration the period spent on daily wages. The Appellate Authority has set aside the said part of the

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order where the balance amount has been directed to be paid.

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7. In the considered opinion of this Court, in view of the Division Bench judgment in the matter of Netram Sahu (referred to above), period spent on daily wages cannot be counted for payment of gratuity. Therefore, the Appellate Authority under the Act, 1972 has not committed any illegality by allowing the appeal preferred by the respondents.

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8. Insofar as incompetency of the appeal memo before the Appellate Authority for the same being filed by a different officer is concerned, all the appeal memos bear signatures of the lawyer and the officer presenting the same. There is no factual foundation averring that the officer who has signed the memo of appeal was not holding the office of Executive Engineer on a given date or that while signing the appeal memo, the concerned officer has no authority to put his signatures. It depends on internal working of the department as to the manner in which the appeal is to be preferred. When financial stakes of the Government are involved, this Court would be slow to consider and accept such technical pleas and would prefer to deal the matter on merits.

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9. For the foregoing, all the writ petitions being devoid of

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any substance deserve to be and are hereby dismissed.

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In fact, WPL No. 178/2013 (State of Chhattisgarh & Another Vs.

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Netram Sahu & Another) was allowed by the writ Court by

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order dated 16.12.2013. Against the said order Netram Sahu approached the Division Bench of this Court in W.A. No. 240/2014, which was dismissed by order dated 01.08.2014

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holding thus:

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“8. The rights and status of a person appointed even on daily wage contrary to the mandate of Articles 14 and 16

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of the Constitution was considered by a Constitution Bench in (2006) 4 SCC 1 (Secretary, State of Karnataka and others Versus Umadevi (3) and others). It was

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observed :-

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"2....But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule."

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"43... Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee........ The

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courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

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9. We are not oblivious of Section 4 of the Act. Eligibility arises after completion of five years of continuous service. We also cannot entirely disagree with Municipal Council, Panna (supra) holding that Section 2(e) of the Act will include daily wagers who have completed five years of service even though it does not notice Section 4(2) First Proviso providing for the method to calculate gratuity of daily wagers. But will the Act cover an appointment made contrary to the Constitutional mandate of Articles 14 and 16 of the Constitution. Will the Act by virtue of Section 14 prevail over the Constitution. The answer has to be in the

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negative. A harmonious construction shall be that the Act will apply to daily wagers appointed in accordance with

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the Constitutional mandate. The Learned Single Judge had already adverted to this aspect. It is not the case of the appellant that he was appointed on daily wage in

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accordance with law. A reading of his order for regularization evinces it to be contrary to the law laid down in Umadevi (supra). But that is not an issue for our consideration at present. If regularization was not permissible in law, he cannot be held eligible for another benefit on the same facts. In Teja Singh (supra) relied upon by the respondents gratuity was denied on a claim based on illegal appointment as daily wage.

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10. The appellant is therefore not entitled to count his period of service on daily wage under Section 4 of the Act to claim entitlement for gratuity.

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11. The appeal is dismissed.

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On the basis of the decision rendered by the Division bench of this Court in the matter of Netram Sahu, the learned Single Judge dismissed the writ petition of the appellant herein.

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However, the matter travelled up to the Supreme Court in Netram Sahu Vs. State of Chhattisgarh & Another reported in (2018) 5 SCC 430, (decided on 23.03.2018 in Civil Appeal No.

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1254/2018) , wherein the same was allowed observing thus:

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“11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and Division Bench) restore the

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orders of the controlling authority and appellate authority.

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12. It is not in dispute that the appellant has actually rendered the total service for a period of 25 years 3 months i.e. from 1-4-1986 to 30-7-2011 to the State. It is also not in dispute that the appellant's services were regularised by the State by order dated 6-5-2008 i.e. much prior to the appellant attained the age of superannuation. It is also not in dispute that the appellant's 25 years and 3 months' period of service satisfied the rigor of the expression “continuous service" as defined under Section 2-A of the Act.

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13. The submission of the learned counsel for the respondent State was that the appellant could not be held eligible to claim the gratuity amount because out of the total period of 25 years of his service, he worked 22 years as daily wager and only 3 years as regular employee. It is for this reason, the learned counsel urged that the appellant could not be said to have worked continuously for a period of 5 years as provided under the Act so as to make him eligible to claim gratuity.

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

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

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14.2. Second, the State actually regularised his services by passing the order dated 6-5-2008;

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14.3. Third, having regularised 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;

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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 regularisation for calculating his continuous service of five years.

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15. In our considered opinion, the High Court committed an error in placing reliance on the decision of this Court in State of Karnataka v. Umadevi (3)3 to deny the relief of grant of gratuity to the appellant. In the case at hand, the High Court should have seen that the services of the appellant was actually regularised by the State and, therefore, the law laid down in Umadevi (3)3 could not be relied on. Indeed, even the decision of Umadevi (3)³ makes a distinction in cases and where the services stand regularised, the ratio of Umadevi (3)3 to deny the relief would not apply.

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16. In our considered opinion, once the State regularised 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

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to his proving continuous service of 5 years as specified under Section 2-A of the Act which, in this case, the appellant has duly proved.

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17. 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 regularised. The question as to from which date such services were regularised was of no significance for calculating the total length of service for claiming gratuity amount once the services were regularised by the State.

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18. It was indeed the State who took 22 years to regularise the service of the appellant and went on taking work from the appellant on payment of a meagre salary of Rs 2776 per month for 22 long years uninterruptedly and only in the last three years, the State started paying a salary of Rs 11,107 per month to the appellant. Having regularised the services of the appellant, the State had no justifiable reason to deny the benefit of gratuity to the appellant which was his statutory right under the Act. It being a welfare legislation meant for the benefit of the employees, who serve their employer for a long time, it is the duty of the State to voluntarily pay the gratuity amount to the appellant rather than to force the employee to approach the Court to get his genuine claim.

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19. In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years.

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20. Indeed, this reminds us of the apt observations made by M.C. Chagla, C.J. (as he then was) in Firm Kaluram Sitaram v. Union of India. The learned Chief Justice in his distinctive style of writing while deciding the case between an individual citizen and the State made the following pertinent observations: (SCC OnLine Bom para 19)

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"19. Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person."

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21. These observations apply in full force against the State in this case because just case of the appellant was being opposed by the State on technical grounds. As a consequence, the appeal succeeds and is allowed. The impugned judgment/order passed by the High Court (Single Judge and Division Bench) are set aside and the orders of the controlling authority and appellate

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authority are restored with costs of Rs 25,000 payable by the State to the appellant. Costs to be paid by the State along with the payment of gratuity amount.

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22. The respondent State is directed to release/pay the gratuity amount as determined by the controlling authority within three months to the appellant.

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Since the issue in question has already been settled by the

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Supreme Court in Netram Sahu (supra), hence the order passed by the learned Single Judge in WPL No. 06/2016 and other connected matters dated 22.02.2016, is liable to be and is hereby set-aside. The respondent State is directed to release/pay the gratuity amount as determined by the Controlling Authority within two months from today.

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Accordingly, the present writ appeals are allowed.

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Sd/- Sd/-

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(Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Amardeep/Shoaib

Smt. Tijiya Bai v. State Of Chhattisgarh

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Smt. Tijiya Bai v. State Of Chhattisgarh

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