Dismissed

Rajasthan Marudhara Gramin Bank v. Kishan Singh Khiriya

Rajasthan HC16 Oct 2021CW/8424/2020

Case brief

AI extract

What is this about?

Retired bank officers were entitled to inclusion of dearness allowance in gratuity calculations. Additional gratuity for service beyond 30 years was limited to half a month's pay per completed year. The Court dismissed the bank's petitions and officers' cross-objections, upheld the appellate orders and directed release of consequential benefits.

What did the court decide?

Consequential benefits to respondent officers directed to be released within three months starting from 1 December 2020.

Rajasthan Marudhara Gramin Bank Vs Kishan… — Pension and Retirement Benefits | Rajasthan HC (2021)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Writ Petition No. 7359/2019

¶3

Rajasthan Marudhara Gramin Bank, Jodhpur, Through Its Chairman, Head Office Tulsi Tower, 9Th B Road, Sardarpura, Jodhpur.

¶4

----Petitioner

¶5

Versus

¶6

The Appellate Authority, Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner (Central), Ajmer. 2. Controlling Authority Under, Under Payment Of Gratuity Act, 1972 And Assistant Labor Commissioner (Central), Ajmer (Raj.). 3. Shri Lokendra Singh Shaktawat S/o Shri Narendra Singh, House No. C-20/21, Pratap Nagar, Udaipur (Raj.).

¶7

----Respondents

¶8

Connected With

¶9

S.B. Civil Writ Petition No. 2455/2019

¶10

Rajasthan Marudhara Gramin Bank

¶11

----Petitioner

¶12

Versus

¶13

The Appellate Authority

¶14

----Respondent S.B. Civil Writ Petition No. 2456/2019 Rajasthan Marudhara Gramin Bank

¶15

----Petitioner

¶16

Versus

¶17

The Appellate Authority

¶18

----Respondent S.B. Civil Writ Petition No. 2457/2019

¶19

Rajajasthan Marudhara Gramin Bank Through Its Chairman,

¶20

----Petitioner

¶21

Versus

¶22

The Appellate Authority

¶23

----Respondent S.B. Civil Writ Petition No. 2459/2019 Rajasthan Marudhara Gramin Bank

----Petitioner

(2 of 83)

[CW-7359/2019]

Versus

The Appellate Authority

¶29

----Respondent

¶30

S.B. Civil Writ Petition No. 2461/2019

¶31

Rajasthan Marudhara Gramin Bank

¶32

----Petitioner

¶33

Versus

¶34

The Appellate Authority

¶35

----Respondent

¶36

S.B. Civil Writ Petition No. 2463/2019

¶37

Rajasthan Marudhara Gramin Bank

¶38

----Petitioner

¶39

Versus

¶40

The Appellate Authority

¶41

----Respondent

¶42

S.B. Civil Writ Petition No. 3130/2019 Rajasthan Marudhara Gramin Bank,

¶43

----Petitioner

¶44

Versus

¶45

The Appellate Authority Under Payment Of Graturity Act 1972

¶46

----Respondent

¶47

S.B. Civil Writ Petition No. 3403/2019

¶48

Rajasthan Marudhara Gramin Bank

¶49

----Petitioner

¶50

Versus

¶51

The Appellate Authority Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner

¶52

----Respondent

¶53

S.B. Civil Writ Petition No. 3408/2019

¶54

Rajasthan Marudhara Gramin Bank

¶55

----Petitioner

¶56

Versus

¶57

The Appellate Authority Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner

¶58

----Respondent

¶59

S.B. Civil Writ Petition No. 3419/2019

¶60

Rajasthan Marudhara Gramin Bank Jodhpur

¶61

----Petitioner

¶62

Versus

¶63

The Appellate Authority Under Payment Of Gratuity Act 1972

¶64

----Respondent

¶65

S.B. Civil Writ Petition No. 3420/2019

¶66

(3 of 83)

¶67

[CW-7359/2019]

¶68

Rajasthan Marudhara Gramin Bank

¶69

----Petitioner

¶70

Versus Appellate Authority Under Payment Of Gratuity Act 1972 ----Respondent S.B. Civil Writ Petition No. 3421/2019 Raj. Marudhara Gramin Bank Jodhpur

¶71

----Petitioner

¶72

Versus Appl. Autho. Under Payment Of Gratuity Act. 1972 ----Respondent S.B. Civil Writ Petition No. 3425/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Appellate Authority Under Payment Of Gratuity Act 1972 ----Respondent S.B. Civil Writ Petition No. 4791/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Appellate Authority Under Payment Of Gratuity Act 1972 ----Respondent S.B. Civil Writ Petition No. 4792/2019 Rajasthan Marudhara Gramin Bank Jodhpur ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 4822/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act 1972 ----Respondent S.B. Civil Writ Petition No. 4849/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Appellate Authority Under Payment Of Gratuity Act 1972 ----Respondent

¶73

(4 of 83)

¶74

[CW-7359/2019]

¶75

S.B. Civil Writ Petition No. 4852/2019

¶76

Rajasthan Marudhara Gramin Bank

¶77

----Petitioner

¶78

Versus

¶79

Appellate Authority Under Payment Of Gratuity Act 1972

¶80

----Respondent

¶81

S.B. Civil Writ Petition No. 4856/2019

¶82

Rajasthan Marudhara Gramin Bank

¶83

----Petitioner

¶84

Versus

¶85

The Appellate Authority Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner

¶86

----Respondent

¶87

S.B. Civil Writ Petition No. 4875/2019 Rajasthan Marudhara Gramin Bank

¶88

----Petitioner

¶89

Versus

¶90

The Appellate Authority Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner

¶91

----Respondent

¶92

S.B. Civil Writ Petition No. 4877/2019

¶93

Rajasthan Marudhara Gramin Bank

¶94

----Petitioner

¶95

Versus

¶96

The Appellate Authority Under Payment Of Gratuity Act 1972 And The Deputy Chief Labor Commissioner

¶97

----Respondent

¶98

S.B. Civil Writ Petition No. 7368/2019

¶99

Rajasthan Marudhara Gramin Bank

¶100

----Petitioner

¶101

Versus

¶102

The Appellate Authority

¶103

----Respondent

¶104

S.B. Civil Writ Petition No. 7369/2019

¶105

Rajasthan Marudhara Gramin Bank,

¶106

----Petitioner

¶107

Versus

¶108

The Appellate Authority

¶109

----Respondent

¶110

S.B. Civil Writ Petition No. 7463/2019

¶111

Rajasthan Marudhara Gramin Bank

----Petitioner

(5 of 83)

[CW-7359/2019]

Versus

The Appellate Authority

¶117

----Respondent

¶118

S.B. Civil Writ Petition No. 7611/2019 Rajasthan Marudhara Gramin Bank Versus

¶119

----Petitioner

¶120

The Appellate Authority

¶121

----Respondent ----Petitioner ----Respondentpondentondent ----Petitioner

¶122

S.B. Civil Writ Petition No. 7625/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority ----Respondentpondentondent S.B. Civil Writ Petition No. 10379/2019 Rajasthan Marudhara Gamin Bank ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 10380/2019 Rajasthan Marudhara Gamin Bank ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 10385/2019 Rajasthan Marudhara Gamin Bank ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 10386/2019 Rajasthan Marudhara Gamin Bank ----Petitioner Versus

¶123

The Appellate Authority

¶124

----Respondent S.B. Civil Writ Petition No. 10388/2019 Rajasthan Marudhara Gamin Bank

(6 of 83)

[CW-7359/2019]

----Petitioner

Versus

The Appellate Authority

¶130

----Respondent

¶131

S.B. Civil Writ Petition No. 10437/2019

¶132

Rajasthan Marudhara Gramin Bank

¶133

----Petitioner

¶134

Versus

¶135

The Appellate Authority Under Payment Of Gratuity Act

¶136

----Respondent

¶137

S.B. Civil Writ Petition No. 10438/2019

¶138

Rajasthan Marudhara Gramin Bank

¶139

----Petitioner

¶140

Versus

¶141

The Appellate Authority Under Payment Of Gratuity Act

¶142

----Respondent

¶143

S.B. Civil Writ Petition No. 10443/2019

¶144

Rajasthan Marudhara Gramin Bank

¶145

----Petitioner

¶146

Versus

¶147

The Appellate Authority Under Payment Of Gratuity Act

¶148

----Respondent

¶149

S.B. Civil Writ Petition No. 10480/2019

¶150

Rajasthan Marudhara Gramin Bank

¶151

----Petitioner

¶152

Versus

¶153

The Appellate Authority Under Payment Of Gratuity Act

¶154

----Respondent

¶155

S.B. Civil Writ Petition No. 10539/2019

¶156

Rajasthan Marudhara Gramin Bank

¶157

----Petitioner

¶158

Versus

¶159

The Appellate Authority Under Payment Of Gratuity Act

¶160

----Respondent

¶161

S.B. Civil Writ Petition No. 10567/2019

¶162

Rajasthan Marudhara Gramin Bank

¶163

----Petitioner

¶164

Versus

¶165

The Appellate Authority Under Payment Of Gratuity Act

¶166

----Respondent

¶167

S.B. Civil Writ Petition No. 10569/2019

¶168

(7 of 83)

¶169

[CW-7359/2019]

¶170

Rajasthan Marudhara Gramin Bank

¶171

----Petitioner

¶172

Versus The Appellate Authority Under Payment Of Gratuity Act

¶173

----Respondent

¶174

S.B. Civil Writ Petition No. 11972/2019 Rajasthan Marudhara Gramin Bank

¶175

----Petitioner

¶176

Versus Bagtawar Ram ----Respondent S.B. Civil Writ Petition No. 13014/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent S.B. Civil Writ Petition No. 7562/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 7643/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 7644/2019 Rajasthan Marudhara Gramin Bank ----Petitioner Versus The Appellate Authority

¶177

----Respondent

¶178

S.B. Civil Writ Petition No. 7645/2019 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

(8 of 83)

[CW-7359/2019]

The Appellate Authority

¶184

----Respondent

¶185

S.B. Civil Writ Petition No. 7860/2019 Rajasthan Marudhara Gramin Bank

¶186

----Petitioner

¶187

Versus

¶188

The Appellate Authority

¶189

----Respondent ----Petitioner y Act Act ----Respondent

¶190

S.B. Civil Writ Petition No. 10422/2019

¶191

Rajasthan Marudhara Gramin Bank Versus The Appellate Authority Under Payment Of Gratuity Act Act S.B. Civil Writ Petition No. 11256/2019 Rajasthan Marudhara Gramin Bank

¶192

----Petitioner Versus

¶193

The Appellate Authority Under Payment Of Gratuity Act

¶194

----Respondent

¶195

S.B. Civil Writ Petition No. 11259/2019 Rajasthan Marudhara Gramin Bank

¶196

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent S.B. Civil Writ Petition No. 11264/2019 Rajasthan Marudhara Gramin Bank

¶197

----Petitioner Versus

¶198

The Appellate Authority Under Payment Of Gratuity Act

¶199

----Respondent

¶200

S.B. Civil Writ Petition No. 11317/2019

¶201

Rajasthan Marudhara Gramin Bank

¶202

----Petitioner

¶203

Versus The Appellate Authority Under Payment Of Gratuity Act

(9 of 83)

[CW-7359/2019]

----Respondent

S.B. Civil Writ Petition No. 11325/2019

¶208

Rajasthan Marudhara Gramin Bank

¶209

----Petitioner

¶210

Versus

¶211

The Appellate Authority Under Payment Of Gratuity Act

¶212

----Respondent

¶213

S.B. Civil Writ Petition No. 11396/2019

¶214

Rajasthan Marudhara Gramin Bank

¶215

----Petitioner Versus yment Of Gratuity Actment Of Gratuity Acty Act Act ----Respondent

¶216

The Appellate Authority Under Payment Of Gratuity Actment Of Gratuity Acty Act Act

¶217

S.B. Civil Writ Petition No. 12030/2019

¶218

Rajasthan Marudhara Gramin Bank

¶219

----Petitioner

¶220

Versus

¶221

The Appellate Authority Under Payment Of Gratuity Act

¶222

----Respondent

¶223

S.B. Civil Writ Petition No. 12031/2019

¶224

Rajasthan Marudhara Gramin Bank

¶225

----Petitioner

¶226

Versus

¶227

The Appellate Authority Under Payment Of Gratuity Act

¶228

----Respondent

¶229

S.B. Civil Writ Petition No. 12121/2019

¶230

Rajasthan Marudhara Gramin Bank

¶231

----Petitioner

¶232

Versus

¶233

The Appellate Authority Under Payment Of Gratuity Act

¶234

----Respondent

¶235

S.B. Civil Writ Petition No. 1416/2019

¶236

Rajasthan Marudhara Gramin Bank

¶237

----Petitioner

¶238

Versus

¶239

The Appellate Authority

(10 of 83)

[CW-7359/2019]

----Respondent

S.B. Civil Writ Petition No. 3422/2019

¶244

Rajasthan Marudhara Gramin Bank

¶245

----Petitioner

¶246

Versus The Appellate Authority Under Payment Of Gratuity Act, 1972 ----Respondent

¶247

S.B. Civil Writ Petition No. 4788/2019

¶248

Rajasthan Marudhara Gramin Bank

¶249

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act, 1972 ----Respondent

¶250

S.B. Civil Writ Petition No. 4794/2019

¶251

Rajasthan Marudhara Gramin Bank

¶252

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act, 1972 ----Respondent

¶253

S.B. Civil Writ Petition No. 4857/2019

¶254

Rajasthan Marudhara Gramin Bank

¶255

----Petitioner

¶256

Versus

¶257

The Appellate Authority Under Payment Of Gratuity Act, 1972 and the Deputy Chief Labour Commissioner

¶258

----Respondent

¶259

S.B. Civil Writ Petition No. 4859/2019 Rajasthan Marudhara Gramin Bank

¶260

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act, 1972 ----Respondent S.B. Civil Writ Petition No. 7561/2019

¶261

Rajasthan Marudhara Gramin Bank

¶262

----Petitioner

¶263

Versus The Appellate Authority

(11 of 83)

[CW-7359/2019]

----Respondent

S.B. Civil Writ Petition No. 7613/2019

¶268

Rajasthan Marudhara Gramin Bank

¶269

----Petitioner

¶270

Versus

¶271

The Appellate Authority

¶272

----Respondent

¶273

S.B. Civil Writ Petition No. 7647/2019

¶274

Rajasthan Marudhara Gramin Bank

¶275

----Petitioner

¶276

Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 7650/2019 Rajasthan Marudhara Gramin Bank

----Respondent

----Petitioner

Versus

The Appellate Authority

¶281

----Respondent

¶282

S.B. Civil Writ Petition No. 7704/2019 Rajasthan Marudhara Gramin Bank

¶283

----Petitioner

¶284

Versus

¶285

The Appellate Authority

¶286

----Respondent

¶287

S.B. Civil Writ Petition No. 7763/2019 Rajasthan Marudhara Gramin Bank

¶288

----Petitioner

¶289

Versus

¶290

The Appellate Authority

¶291

----Respondent

¶292

S.B. Civil Writ Petition No. 7754/2019 Rajasthan Marudhara Gramin Bank

¶293

----Petitioner

¶294

Versus The Appellate Authority

(12 of 83)

[CW-7359/2019]

----Respondent

S.B. Civil Writ Petition No. 7755/2019

¶299

Rajasthan Marudhara Gramin Bank

¶300

----Petitioner

¶301

Versus

¶302

The Appellate Authority

¶303

----Respondent

¶304

S.B. Civil Writ Petition No. 7892/2019

¶305

Rajasthan Marudhara Gramin Bank

¶306

----Petitioner

¶307

Versus The Appellate Authority ----Respondent S.B. Civil Writ Petition No. 7870/2019 Rajasthan Marudhara Gramin Bank

----Respondent

----Petitioner

Versus

The Appellate Authority

¶312

----Respondent

¶313

S.B. Civil Writ Petition No. 7897/2019 Rajasthan Marudhara Gramin Bank

¶314

----Petitioner

¶315

Versus

¶316

The Appellate Authority

¶317

----Respondent

¶318

S.B. Civil Writ Petition No. 7908/2019 Rajasthan Marudhara Gramin Bank

¶319

----Petitioner

¶320

Versus

¶321

The Appellate Authority

¶322

----Respondent

¶323

S.B. Civil Writ Petition No. 9965/2019 Rajasthan Marudhara Gramin Bank

¶324

----Petitioner

¶325

Versus The Appellate Authority

(13 of 83)

[CW-7359/2019]

----Respondent

S.B. Civil Writ Petition No. 10144/2019

¶330

Rajasthan Marudhara Gramin Bank

¶331

----Petitioner

¶332

Versus

¶333

The Appellate Authority Under Payment Of Gratuity Act

¶334

----Respondent

¶335

S.B. Civil Writ Petition No. 10252/2019

¶336

Rajasthan Marudhara Gramin Bank

¶337

----Petitioner

¶338

Versus

¶339

The Appellate Authority

¶340

----Respondent

¶341

S.B. Civil Writ Petition No. 10299/2019 Rajasthan Marudhara Gramin Bank

¶342

----Petitioner

¶343

Versus

¶344

The Appellate Authority Under Payment Of Gratuity Act

¶345

----Respondent

¶346

S.B. Civil Writ Petition No. 10367/2019

¶347

Rajasthan Marudhara Gramin Bank

¶348

----Petitioner

¶349

Versus

¶350

The Appellate Authority Under Payment Of Gratuity Act

¶351

----Respondent

¶352

S.B. Civil Writ Petition No. 10421/2019

¶353

Rajasthan Marudhara Gramin Bank

¶354

----Petitioner

¶355

Versus

¶356

The Appellate Authority Under Payment Of Gratuity Act

¶357

----Respondent

¶358

S.B. Civil Writ Petition No. 10441/2019

¶359

Rajasthan Marudhara Gramin Bank

¶360

----Petitioner

¶361

Versus

¶362

The Appellate Authority Under Payment Of Gratuity Act

¶363

----Respondent

¶364

S.B. Civil Writ Petition No. 10476/2019 Rajasthan Marudhara Gramin Bank

(14 of 83)

[CW-7359/2019]

----Petitioner

Versus

The Appellate Authority Under Payment Of Gratuity Act

¶370

----Respondent

¶371

S.B. Civil Writ Petition No. 10477/2019

¶372

Rajasthan Marudhara Gramin Bank

¶373

----Petitioner

¶374

Versus

¶375

The Appellate Authority Under Payment Of Gratuity Act ----Respondent S.B. Civil Writ Petition No. 10482/2019 Rajasthan Marudhara Gramin Bank ----Petitioner

¶376

Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondentpondentondent S.B. Civil Writ Petition No. 10537/2019 Rajasthan Marudhara Gramin Bank

¶377

----Respondentpondentondent

¶378

----Petitioner

¶379

Versus

¶380

The Appellate Authority Under Payment Of Gratuity Act

¶381

----Respondent

¶382

S.B. Civil Writ Petition No. 10538/2019

¶383

Rajasthan Marudhara Gramin Bank

¶384

----Petitioner

¶385

Versus

¶386

The Appellate Authority Under Payment Of Gratuity Act ----Respondent

¶387

S.B. Civil Writ Petition No. 10676/2019

¶388

Rajasthan Marudhara Gramin Bank

¶389

----Petitioner

¶390

Versus The Appellate Authority Under Payment Of Gratuity Act

¶391

----Respondent

¶392

S.B. Civil Writ Petition No. 10680/2019

¶393

Rajasthan Marudhara Gramin Bank

¶394

----Petitioner

¶395

Versus

¶396

The Appellate Authority Under Payment Of Gratuity Act

----Respondent

(15 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 10683/2019

¶401

Rajasthan Marudhara Gramin Bank

¶402

----Petitioner

¶403

Versus

¶404

The Appellate Authority Under Payment Of Gratuity Act

¶405

----Respondent

¶406

S.B. Civil Writ Petition No. 10753/2019

¶407

Rajasthan Marudhara Gramin Bank

¶408

----Petitioner Versus

¶409

The Appellate Authority Under Payment Of Gratuity Act ----Respondent S.B. Civil Writ Petition No. 10756/2019 Rajasthan Marudhara Gramin Bank

¶410

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent

¶411

S.B. Civil Writ Petition No. 10758/2019

¶412

Rajasthan Marudhara Gramin Bank

¶413

----Petitioner

¶414

Versus The Appellate Authority Under Payment Of Gratuity Act

¶415

----Respondent

¶416

S.B. Civil Writ Petition No. 11224/2019 Rajasthan Marudhara Gramin Bank

¶417

----Petitioner

¶418

Versus

¶419

The Appellate Authority Under Payment Of Gratuity Act

¶420

----Respondent

¶421

S.B. Civil Writ Petition No. 11225/2019 Rajasthan Marudhara Gramin Bank

¶422

----Petitioner

¶423

Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent

¶424

(16 of 83)

¶425

[CW-7359/2019]

¶426

S.B. Civil Writ Petition No. 11252/2019

¶427

Rajasthan Marudhara Gramin Bank

¶428

----Petitioner

¶429

Versus

¶430

The Appellate Authority Under Payment Of Gratuity Act

¶431

----Respondent

¶432

S.B. Civil Writ Petition No. 11253/2019

¶433

Rajasthan Marudhara Gramin Bank

¶434

----Petitioner

¶435

Versus

¶436

The Appellate Authority Under Payment Of Gratuity Act ----Respondent S.B. Civil Writ Petition No. 11267/2019 Rajasthan Marudhara Gramin Bank

¶437

----Petitioner Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent

¶438

S.B. Civil Writ Petition No. 11268/2019

¶439

Rajasthan Marudhara Gramin Bank

¶440

----Petitioner

¶441

Versus The Appellate Authority Under Payment Of Gratuity Act ----Respondent

¶442

S.B. Civil Writ Petition No. 11314/2019

¶443

Rajasthan Marudhara Gramin Bank

¶444

----Petitioner

¶445

Versus

¶446

The Appellate Authority Under Payment Of Gratuity Act

¶447

----Respondent

¶448

S.B. Civil Writ Petition No. 11323/2019

¶449

Rajasthan Marudhara Gramin Bank

¶450

----Petitioner

¶451

Versus

¶452

The Appellate Authority Under Payment Of Gratuity Act

----Respondent

(17 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 11927/2019

¶457

Rajasthan Marudhara Gramin Bank

¶458

----Petitioner

¶459

Versus

¶460

The Appellate Authority Under Payment Of Gratuity Act

¶461

----Respondent

¶462

S.B. Civil Writ Petition No. 8574/2020

¶463

Rajasthan Marudhara Gramin Bank

¶464

----Petitioner Versus Rajendra Singh Rathore ----Respondent S.B. Civil Writ Petition No. 8702/2020 Rajasthan Marudhara Gramin Bank

¶465

----Petitioner Versus

¶466

Pukh Raj Bharti

¶467

----Respondent

¶468

S.B. Civil Writ Petition No. 8708/2020 Rajasthan Marudhara Gramin Bank

¶469

----Petitioner Versus Rajendra Kumar Nahar ----Respondent S.B. Civil Writ Petition No. 8769/2020 Rajasthan Marudhara Gramin Bank

¶470

----Petitioner Versus

¶471

Bheru Pal Singh

¶472

----Respondent

¶473

S.B. Civil Writ Petition No. 8575/2020

¶474

Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Prem Singh Shekhawat

----Respondent

(18 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 8600/2020

¶482

Rajasthan Marudhara Gramin Bank

¶483

----Petitioner

¶484

Versus Shyam Lal Singh Rajput ----Respondent S.B. Civil Writ Petition No. 8661/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Navneet Sharma ----Respondent S.B. Civil Writ Petition No. 8686/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Mangi Lal Seervi ----Respondent S.B. Civil Writ Petition No. 8688/2020

¶485

Rajasthan Marudhara Gramin Bank

¶486

----Petitioner Versus Shyam Sunder Sharma ----Respondent S.B. Civil Writ Petition No. 8689/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Dayaram Hambad

----Respondent

S.B. Civil Writ Petition No. 8690/2020 Rajasthan Marudhara Gramin Bank

¶492

----Petitioner

¶493

Versus Dalpat Khamesra

----Respondent

(19 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 8692/2020

¶498

Rajasthan Marudhara Gramin Bank

¶499

----Petitioner

¶500

Versus Chiranji Lal Pareek ----Respondent S.B. Civil Writ Petition No. 8766/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Champak Lal Dave ----Respondent S.B. Civil Writ Petition No. 8767/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Anand Singh Charan ----Respondent S.B. Civil Writ Petition No. 8424/2020

¶501

Rajasthan Marudhara Gramin Bank

¶502

----Petitioner Versus Kishan Singh Khiriya ----Respondent S.B. Civil Writ Petition No. 8431/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Sudhir Kumar Juneja

----Respondent

S.B. Civil Writ Petition No. 8432/2020 Rajasthan Marudhara Gramin Bank

¶508

----Petitioner Versus Dhirendra Singh Solanki

----Respondent

(20 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 8434/2020

¶513

Rajasthan Marudhara Gramin Bank

¶514

----Petitioner

¶515

Versus Panna Lal Chouhan ----Respondent S.B. Civil Writ Petition No. 8520/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Pema Ram Vishnoi ----Respondent S.B. Civil Writ Petition No. 8521/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Shiv Shanker Das ----Respondent S.B. Civil Writ Petition No. 8540/2020

¶516

Rajasthan Marudhara Gramin Bank

¶517

----Petitioner Versus Suresh Bala Sharma ----Respondent S.B. Civil Writ Petition No. 8725/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Likhma Ram Saran

----Respondent S.B. Civil Writ Petition No. 8727/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Surya Prasad Sharma

----Respondent

(21 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 8426/2020

¶526

Rajasthan Marudhara Gramin Bank

¶527

----Petitioner

¶528

Versus Kheem Singh Rathore ----Respondent S.B. Civil Writ Petition No. 8685/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Manak Chand Sisodiya ----Respondent S.B. Civil Writ Petition No. 8623/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Deva Ram Sarel ----Respondent S.B. Civil Writ Petition No. 8631/2020

¶529

Rajasthan Marudhara Gramin Bank

¶530

----Petitioner Versus Jabbar Singh Shekhawat ----Respondent S.B. Civil Writ Petition No. 8640/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Bhanwar Lal Sharma

----Respondent

S.B. Civil Writ Petition No. 8644/2020 Rajasthan Marudhara Gramin Bank

¶536

----Petitioner

¶537

Versus Om Prakash Thakur

----Respondent

(22 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 8889/2020

¶542

Rajasthan Marudhara Gramin Bank

¶543

----Petitioner

¶544

Versus Prabhu Shanker Pareek ----Respondent S.B. Civil Writ Petition No. 8584/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Jawana Ram Godara ----Respondent S.B. Civil Writ Petition No. 8728/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Om Prakash Pande ----Respondent S.B. Civil Writ Petition No. 8898/2020 Rajasthan Marudhara Gramin Bank

¶545

----Petitioner Versus Ram Vilas Tanwar ----Respondent S.B. Civil Writ Petition No. 9011/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Chunnilal Parihar

----Respondent

S.B. Civil Writ Petition No. 9010/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Ganesh Ram Choyal

----Respondent

(23 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9021/2020

¶558

Rajasthan Marudhara Gramin Bank

¶559

----Petitioner

¶560

Versus Renuka Bhardwaj ----Respondent S.B. Civil Writ Petition No. 9023/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Shiv Kumar Vyas ----Respondent S.B. Civil Writ Petition No. 9047/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Thana Ram Parihar ----Respondent S.B. Civil Writ Petition No. 9096/2020 Rajasthan Marudhara Gramin Bank ----Petitioner

¶561

Versus Pratap Singh Choudhary ----Respondent S.B. Civil Writ Petition No. 9100/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Arun Kumar Babel

----Respondent S.B. Civil Writ Petition No. 9101/2020 Rajasthan Marudhara Gramin Bank

¶566

----Petitioner Versus Himta Ram Suthar

----Respondent

(24 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9102/2020

¶571

Rajasthan Marudhara Gramin Bank

¶572

----Petitioner

¶573

Versus Pawan Kumar Dhannawat ----Respondent S.B. Civil Writ Petition No. 9103/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Ganesh Singh Rathore ----Respondent S.B. Civil Writ Petition No. 9104/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Prem Chand Purohit ----Respondent S.B. Civil Writ Petition No. 9105/2020 Rajasthan Marudhara Gramin Bank

¶574

----Petitioner

¶575

Versus Lokesh Kumar Joshi ----Respondent S.B. Civil Writ Petition No. 9106/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Sharafat Ali Balvi

----Respondent

S.B. Civil Writ Petition No. 9107/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Narendra Singh Dewal

----Respondent

(25 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9108/2020

¶585

Rajasthan Marudhara Gramin Bank

¶586

----Petitioner

¶587

Versus Dinesh Kumar Bhandari ----Respondent S.B. Civil Writ Petition No. 9109/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Tara Chand Prajapat ----Respondent S.B. Civil Writ Petition No. 9110/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Nena Ram Siyak ----Respondent S.B. Civil Writ Petition No. 9111/2020

¶588

Rajasthan Marudhara Gramin Bank

¶589

----Petitioner Versus Praveen Singh Sisodiya ----Respondent S.B. Civil Writ Petition No. 9112/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Manohar Lal Lodha

----Respondent S.B. Civil Writ Petition No. 9113/2020 Rajasthan Marudhara Gramin Bank

¶594

----Petitioner Versus Virendra Kumar Nanawati

----Respondent

(26 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9114/2020

¶599

Rajasthan Marudhara Gramin Bank

¶600

----Petitioner

¶601

Versus Deep Singh Chouhan ----Respondent S.B. Civil Writ Petition No. 9116/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Kanhaiya Lal Swarnkar ----Respondent S.B. Civil Writ Petition No. 9118/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Rukhsana Banno Samma ----Respondent S.B. Civil Writ Petition No. 9120/2020

¶602

Rajasthan Marudhara Gramin Bank

¶603

----Petitioner

¶604

Versus Omkar Singh Bhati ----Respondent S.B. Civil Writ Petition No. 9121/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Shiv Prasad Sharma

----Respondent

S.B. Civil Writ Petition No. 9122/2020 Rajasthan Marudhara Gramin Bank

¶610

----Petitioner

¶611

Versus Prasan Lal Sharma

----Respondent

(27 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9123/2020

¶616

Rajasthan Marudhara Gramin Bank

¶617

----Petitioner

¶618

Versus Ajay Kumar Vagarecha ----Respondent S.B. Civil Writ Petition No. 9125/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Subhash Chandra Solanki ----Respondent S.B. Civil Writ Petition No. 9127/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Dilip Kumar Arora ----Respondent S.B. Civil Writ Petition No. 9138/2020 Rajasthan Marudhara Gramin Bank

¶619

----Petitioner Versus Pukhraj Agarwal ----Respondent S.B. Civil Writ Petition No. 9140/2020 Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Bhagwati Lal Ladha

----Respondent

S.B. Civil Writ Petition No. 9137/2020

¶625

Rajasthan Marudhara Gramin Bank

----Petitioner

Versus

Kunna Ram Choudahry

----Respondent

(28 of 83)

[CW-7359/2019]

S.B. Civil Writ Petition No. 9139/2020

¶633

Rajasthan Marudhara Gramin Bank

¶634

----Petitioner

¶635

Versus Giriraj Singh Rathore ----Respondent S.B. Civil Writ Petition No. 9143/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Sanwar Lal Gaur ----Respondent S.B. Civil Writ Petition No. 9144/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Azad Khan ----Respondent S.B. Civil Writ Petition No. 9145/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Bhikam Chand Jhuria ----Respondent S.B. Civil Writ Petition No. 9146/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Lalit Devi Sharma ----Respondent S.B. Civil Writ Petition No. 9147/2020 Rajasthan Marudhara Gramin Bank ----Petitioner Versus Chandan Lal Bhanwara ----Respondent

¶636

For Petitioner(s) : Mr. Suresh Charan with Mr. Rahul Bhati Dr. Mahendra Singh Kachhawa with Mr. Jitendra Singh

(29 of 83)

[CW-7359/2019]

For Respondent(s)

: Mr. SP Sharma Mr. BP Bohra Mr. Deelip Kawadia a/w Ms. Divya Sharma Mr. NS Charan Ms. Pintu Pareek

¶641

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

¶642

Judgment

¶643

16/10/2020 1. In wake of onslaught of COVID-19, abandon caution is being taken while hearing the matters in Court. 2. All these writ petitions involve common questions of law and facts and arise out of two consecutive orders passed by the Controlling Authority and the Appellate Authority wherein it has been held that the beneficial definition of pay ought to be considered for computing enhanced gratuity to the officers while interpreting the welfare legislation of gratuity and hence, the same are decided together by this common judgment.

¶644

The petitioner is a regional rural bank and has preferred these writ petitions claiming identical relief. The relief prayed for in the lead case being S.B. Civil Writ Petition No.7359/2019 reads as under :-

¶645

a) The impugned order dated 26.02.2019(Annex.1) may kindly be quashed and set aside and the prayer of the appellant/petitioner in the appeal may kindly be allowed, and

¶646

b) The respondent No.2 may kindly be directed to return the deposited amount of Rs.11,15,759/-jj in compliance of the statutory provisions, while filing the appeal with due interest, and

¶647

(30 of 83)

¶648

[CW-7359/2019]

¶649

c) Any other writ order or direction which you Lordship may deem jut and proper in the facts and circumstances of the case, may also kindly be issued in favour of the petitioner and the cost may be directed to be awarded in favour of the petitioner.

¶650

The brief facts of the case as noticed by this Court are that all these writ petitions relate to the dispute of computation of gratuity of the retired Bank Officers. The petitioner bank is a Regional Rural Bank which has been constituted by amalgamation of Marudhara Gramin Bank and Mewar Anchalik Gramin Bank on 01.04.2014. The retired Bank Officers-private respondents filed their respective applications before the Controlling Authority under the Payment of Gratuity Act, 1972 claiming the differential amount of gratuity with interest with effect from 01.12.2017 based on the basic + dearness allowance + PQP + FPP components of the last pay drawn for the calculation of amount of gratuity payable to such officers. The petitioner-Bank vehemently objected their applications but the same were allowed and the petitioner-Bank was directed to pay the additional amount of gratuity along with simple interest at the rate of 10% with effect from 01.12.2017 till the date of payment made by the petitioner-Bank. The petitioner being aggrieved by the order of the Controlling Authority filed appeals under Section 7 Sub-Section 7 of the Payment of Gratuity Act 1972, before the Appellate Authority under the Payment of Gratuity Act, 1972 and Deputy Chief Labour Commissioner (Central), Ajmer. The petitioner being under a legal obligation deposited the difference of the amount to the Government before filing the appeals. The Appellate Authority partly allowed the appeals with a direction to pay lesser amount along with simple

¶651

(31 of 83)

¶652

[CW-7359/2019]

¶653

interest at the rate of 10% per month with effect from 01.12.2017 only on the ground of the ratio of the monthly addition of gratuity after completion of 30 years while upholding the broader issue laid down by the Controlling Authority.

¶654

The bank officers have also made cross-objections against the Appellate Authority’s order in certain writ petitions whereby the calculations as per Clause 72(3) of the regulation have been made and reduced by the Appellate Authority and seeking of counting 30 days + 15 days i.e. one and a half months’ salary for the basic computation.

¶655

5.1 Learned counsel for the petitioner bank Mr. Suresh Charan and Dr. Mahendra Singh Kachhawa framed their arguments raising five core issues which read as follows:-

¶656

“ a. Whether the order dated 02.05.2018 passed by the Controlling Authority under the Payment of Gratuity Act 1972, is without competence and beyond jurisdiction?

¶657

b. If the Controlling Authority under the Payment of Gratuity Act 1972, is having the legal competence to entertain the application under Section 7(4)(b) filed by the respondent No.3 without any dispute being raised under Section 7(4)(a) of the Act of 1972 with in reasonable time?

¶658

c. If the respondent No.2 has any jurisdiction to entertain any claim of Gratuity of more than Rs.10.00 Lacs the maximum limit under the Payment of Gratuity Act 1972?

¶659

d. If the competent authority has been entrusted with any jurisdiction in interpreting the provisions of any other statute or rules relating to Payment of Gratuity to the employee under Section 4(5) of the Act of 1972?

¶660

e. If, the respondent No.3 has waived his right to raise the dispute under Section 7(4)(a) within reasonable time,

¶661

(32 of 83)

¶662

[CW-7359/2019]

¶663

when he has already accepted the amount of Rs.1005180 payable under the provision of the Act of 1972?”

¶664

5.2 In pursuance of the aforesaid legal issues raised, learned counsel for the petitioner made the following submissions with the help of the precedent law as applicable, in the ensuing paragraphs.

¶665

5.3 All these petitions relate to the retired bank officers who have voluntarily accepted the batter and beneficial amount of gratuity calculated as per the provision of payment of Gratuity Act 1972 and Service Regulation 2010, without any dispute being raised under section 7(4)(a) of the Act of 1972. The retired bank officer while accepting the amount of gratuity has not raised any dispute within 90 days as prescribed under rule 10 of payment of gratuity Rules, as contemplated under section 7(4)(a) of the Act of 1972. All the claims accept pertaining to writ petitions expect SB CW No. 7359/2019 are submitted after the lapse of limitation period. The claim applications before the controlling authority are submitted after 06 months to about 09 years of accepting the gratuity amount without any dispute i.e. after the lapse of limitation. No application for condonation of delay was submitted and the controlling authority suo moto has admitted and decided the applications while as per -

¶666

(i) The Hon'ble Karnataka High Court in SBCW no.27013/2013 titled Karnataka State Road Transport Corporation VS The Dy. Labour Commissioner and anr. decided on 01.08.2013 has held that the appellate authority was not justified in condoning the in ordinate delay.

¶667

(ii) The Hon'ble Jharkhand High Court in mineral area development - VS State of Bihar cited in 2001 (ILLJ) 1375 Jhark. has again propounded that the application offered no

¶668

(33 of 83)

¶669

[CW-7359/2019]

¶670

explanation/reasons for seeking condonation for in ordinate delay.

¶671

(iii) The Hon'ble Delhi High Court has in case of Krishan Kumar Kashyap VS the appellate Authority decided on 23.02.2015 has held that the provisions of limitation Act are not applicable in case of matter relating to PG Act 1972 and an appeal filed after 139 days was dismissed, while the limitation period was 120 days.

¶672

5.4 The Appellate authority although has framed the issue no.(a) on page no.4 and has also cited the judgment produced by bank reported in 1989 (2) SCC 356 titled M/s. Rup Diamond and Ors. VS Union of India and Ors. but has not accepted the plea of the petitioner bank. The all citations considered are not applicable to the cases before the Court as - (i) The facts are not akin to the present dispute where the claim is raised after lapse of inordinate delay and out of limitation. (ii) The cases cited relate to the condonation based on the applications filed for condonation but in present cases no application is submitted in any of the 105 cases, so the condonation suo moto is not permissible .

¶673

5.5. The conclusion arrived by appellate authority is erroneous, illegal and arbitrary where in the respondent appellate authority has stated that starting point of gratuity will be from the time when the employer disputes the liability, the inference drawn is totally uncalled for and against the provisions of law, as laid down under section 7(4)(a) of the Act of 1972 as well as the provision of limitation laid down under rule 10 of the payment of gratuity rules prescribing the limit from the date of acceptance or raising of dispute about such calculation. The inference drawn by

¶674

(34 of 83)

¶675

[CW-7359/2019]

¶676

the appellate authority that the employer cannot resist the claim of payment of gratuity on the ground of limitation.

¶677

5.6 The controlling authority has no jurisdiction and competence to decide the issue of interpretation relating to any Act / Contract /Agreement other than the provisions relating to the provisions of payment of Gratuity Act 1972, while in this matter the controlling and the appellate authority has gone beyond the competence and jurisdiction as held under -

¶678

(i) The Hon'ble Supreme Court in case of Allahabad Bank and anr. VS All India Allahahad Bank Retired decided on 15.12.2009 has categorically held that "The Act nowhere confers any jurisdiction upon the controlling authority to deal with any issue under sub section 5 of section 4 as to whether the terms of gratuity payable under any award or agreement or contract is beneficial to employees than the one provided for payment of gratuity under the Act. The Courts order could not have conferred such jurisdiction upon the controlling authority to decide any matter under sub section (5) of section 4……….. . The controlling authority failed to appreciate that sub section (5) of section 4 of the Act, protect the right of an employee to receive better terms of gratuity under any award or agreement or contract than the benefits conferred under the Act."

¶679

(ii) The Hon'ble Kerala High Court in case of Thomos Kurian VS Idukki District Cooperative Bank decided on

¶680

25.02.2003, has clearly held that - "The controlling authority constituted under the Gratuity Act is incompetent to consider the legality or propriety of Exhibit P-l circular as he does not have any authority or jurisdiction to consider the same. When the right to get he maximum amount of gratuity under the Gratuity Act is not disputed by the bank, the controlling authority has no jurisdiction in adjudicating the dispute regarding the excess amount paid to the employee. As the dispute is relating to the payment of an

¶681

(35 of 83)

¶682

[CW-7359/2019]

¶683

amount in excess of the amount prescribe under sub section (3) of section 4 of the Gratuity Act and that being a dispute between the employer and employee, it has to be adjudicated by the arbitrator under section 69 of the Cooperative Act……. .The controlling authority cannot have any jurisdiction in the matter, as the dispute relates to the claim regarding the excess amount paid which is beyond the purview of the Gratuity Act."

¶684

(iii) The controlling authority is appointed under section 3 of the Act of 1972 which makes it clear that the controlling authority "who shall be responsible for administration of his Act.” makes it clear that he cannot go beyond the provisions of the Act of 1972 while in the present matter the respondent authorities have tried to make the interpretation of the provisions of service regulations 2010 relating to the petitioner bank which is not permissible. All the acts of the respondent authorities are beyond competence and jurisdiction.

¶685

5.7. The controlling authority is appointed under section 3 of the Act of 1972 which makes it clear that "who shall be responsible for administration of this Act." (With pecuniary jurisdiction prescribed) .

¶686

Provision laid down under section 4 (3) of the Act of 1972 is as under: "The amount of gratuity payable to an employee shall not exceed 10 Lacs Rupees."

¶687

The pecuniary jurisdiction of the controlling authority is limited upto 10 lacs Rupees as prescribed under the Act 1972 while in all 105 cases the respondent authorities have decided the applications demanding more than amount of Rupees 10 Lacs, which is beyond the pecuniary jurisdiction of the

¶688

(36 of 83) [CW-7359/2019]

¶689

authorities hence all the judgments are nullity in the eye of law.

¶690

The Hon^l ble Courts have categorically held that the judgments passed beyond pecuniary jurisdiction are nullity, as held by the Hon'ble Punjab & Haryana High Court in case of Basant Singh VS Tirloki Nath Lachhman Das .

¶691

Hon'ble Supreme Court in Kiran Singh VS Chaman Paswan AIR 1954 SC 340 has held that “A defect of Jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of subject of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."

¶692

5.8. The respondent no.3 the retired bank officers have voluntarily accepted the amount of gratuity without any dispute being raised under section 7 (4) (a) of the Act of 1972 within reasonable or within limitation period. Respondent no. 3 has waived his right by his non action in reasonable time to raise the dispute and is not at liberty to blow hot and cold simultaneously. The Hon'ble Courts have categorically propounded that once the right is waived then cannot claim such right.

¶693

5.9. The Controlling Authority in its judgment dated 02.05.2018 has passed the direction for payment of gratuity calculated on Page No. 13 of the above judgment where the determination of gratuity is made on the basis of "last wages drawn ." The important lines are reproduced as under – "Therefore applicant is entitled to receive the gratuity as per service regulation by taking the last wages into consideration." In detailing the facts at point no. 4 at page no. 13 the last wages

¶694

(37 of 83)

¶695

[CW-7359/2019]

¶696

drawn is calculated - a) Basic Pay, b) Dearness Allowance, c) FPP, d) PQP, in making the total of the last drawn wages.

¶697

The service regulations 2010 do not have any word

¶698

" wages " used and defined in these regulations, makes it clear that the word wages is being imported from the payment of Gratuity Act 1972.

¶699

In determination of gratuity on page no. 13 the controlling authority has used the formula taken from the service regulations 2010 and without using the amount of " pay " as required under the proviso to the regulation 72 of the service regulations 2010.

¶700

It makes crystal clear that the controlling authority on page no. 13 of its judgment has segregated the provisions of the Act of 1972 and provision of service regulation 2010, which is not permissible in law.

¶701

(i) The Hon'ble Supreme Court in Beed District Central VS State of Maharastra and Ors. decided on 29.09.2006 has clearly held that "We are, therefore, of the opinion that the workman cannot opt for both the terms. Such a construction would defeat the purpose for which sub section (5) of section 4 has been enacted”.

¶702

The above judgment has also further held that "while interpreting even a beneficent statute, like, payment of Gratuity Act, we are of the opinion that either contract has to be given effect to or the statute. The provisions of the Act envisage for one Scheme. It could not be segregated. Sub section (5) of section 4 of the 1972 Act does not contemplate that the workmen would be at liberty to opt for better terms of the contract, while keeping the option opened in respect of part of statute. While reserving his right to opt for the beneficent provision of the statute or

¶703

(38 of 83)

¶704

[CW-7359/2019]

¶705

agreement, he has to opt for either of them, and not the terms of not the best of terms of the statute as well as those of the contract. He cannot have both. It such an interpretation is given, the spirit of Act shall be lost.”

¶706

5.10. That the petitioner bank has not delayed the payment rather it calculated the amount of gratuity before retirement of the concerned bank officer, with comparative calculation on the basis

¶707

of for formula prescribed under the provision of the Act 1972 as well as the formula provided under the service regulations 2010. The better and beneficial amount was agreed and accepted by the respondent no.3, the retired bank officers. But the controlling as well as appellate authority under the payment of Gratuity Act, by segregation of the provision of Act and Regulation 2010, illegally and without competence/jurisdiction has passed the impugned orders which are not permissible in law.

¶708

5.11. That the payment of gratuity to the bank officers as per the service regulations 2010 under regulation 72 provide for calculation of the amount of the gratuity to the bank officers as mention in proviso: "provided further that in respect of an officer the gratuity is payable based on last pay drawn”.

¶709

The pay is define under the regulation - "Pay means the basic pay drawn per month by the officer or employee in a pay scale including stagnation increment and any part of emoluments which may specifically be classified as pay under the regulations".

¶710

The regulations have provided for separate methods and means of calculation of gratuity for the officers and employees. The respondent no. 3 cannot claim the inclusion of

¶711

(39 of 83)

¶712

[CW-7359/2019]

¶713

dearness allowance when the legislature, beyond ambiguity has provided that only the last pay drawn shall be the basis of calculation then all the judgments submitted by the respondents including the Hon^t ble MP High Court, and Hon'ble Calcutta High Court, etc. are not considerable as in those judgments the dearness allowance is illegally and beyond the scope of provision

¶714

of law has directed to be added with the pay for the payment of gratuity to the retired officers.

¶715

The wrong and illegally orders when brought to the knowledge of Hon'ble Court, are not binding and not to be followed as per the judgments of the Hon'ble Supreme Court.

¶716

The counsel for the respondent no. 3, retired officers have tried to misrepresent to the Hon'ble Court that the judgment of the Hon'ble MP High Court was upheld by the Hon'ble supreme court, while order dated 07.05.2019 has dismissed the SLP of the Madhyanchal bank. The SLP rejected cannot be taken as upholding the judgment of the division bench of Hon'ble MP High Court.

¶717

That the language of the provisions laid down under regulation 1972 of the service regulation 2010 Is unambiguous and plain which cannot have two interpretations then the Hon'ble Court should avoid following the judgment passed by the Hon'ble MP High Court, and Hon'ble Calcutta High Court, etc.

¶718

The Hon'ble Bombay High Court at Nagpur Bench in case of Vidarbha Konkan Gramin Bank VS Appellate Authority and anr decided on 06.01.2020 in writ petition no. 8272/2018 and 8273/2018 has in detail examined the provisions of the PG Act and the service regulations 2010 and has not followed the

¶719

(40 of 83)

¶720

[CW-7359/2019]

¶721

judgment passed by the Hon'ble MP High Court and has categorically held that the claim of the retired bank officers is not permissible in law.

¶722

5.12. The Petitioner bank has submitted the judgments passed in favour of the petitioner bank by the same appellate authority at Ajmer in case of Chairman Marudhara Gramin Bank (the then JTGB) VS Shri Manohar Lal Yadav was decided on 05.08.2014 and the claim of the retired bank officers on the same analogy was disallowed. The petitioners have also cited the judgment of Appellate Authority Yashwantpur Bengalore decided on 30.06.2017 titled the Chiarman, Pragathi Krishna Gramin Bank VS B K Sathya Narayanan Rao wherein matter was decided in favour of the Bank and the claim of the retired bank officers was dismissed. The respondent appellate authority has arbitrarily not considered their, own judgments just wrongly to benefit the respondent officers.

¶723

5.13. That the Appellate Authority as well as the Controlling Authority has ignored the rule laid down by the Hon'ble Supreme Court in case of Ghaziabad Zila Sahkari Bank VS Additional Labour Commissioner (reported in Manu/SC/7040/2007) held that "The general legal principle in interpretation of statutes is that the General Act should lead to special Act. Upon this general principle of law, the intention of UP Legislature is clear that special enactment UP Cooperative Societies Act alone should apply".

¶724

5.14. That the NABARD and the sponsor bank SBI in its guideline has opined against the inferences drawn by the respondent no. 1 and 2. The NABARD by letter dated 02.05.2018

¶725

(41 of 83)

¶726

[CW-7359/2019]

¶727

has clearly provided that in calculating the gratuity, if calculation is made under the payment of Gratuity Act, the definition of service regulations cannot be imported or relied and vice-varsa or cannot be given an extended meaning to whatever is provided under the Act. Convenient clauses of both the payment of Gratuity Act and service regulation cannot be relied (Cherry picking) to arrive at

¶728

gratuity.

¶729

5.15. Section 7(4)(b) of the Act clearly limits the jurisdiction of controlling authority, who can entertain an application "where there is a dispute with regard to any matter or matters specified in clause (a) the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute”.

¶730

Only those disputes raised under section 7 (4)(a) of the Act of 1972 only then the controlling authority can entertain the application, otherwise there is clear bar in entertaining the application. As in 105 cases the retired officers has not submitted any dispute under section 7(4)(a) of the Act hence all the applications are illegally entertained.

¶731

5.16. That the huge amount as directed by the respondent no. 1 and 2 is to be paid out of the public money while controlling or the appellate authority has illegally arrived by arbitrary segregation of the provision of Act of 1972 and the provisions of service regulation 2010, which is not permissible in law and against the clear direction of NABARD, the rule laid down by Hon'ble Supreme Court in Beed District Cooperative Bank Case.

¶732

(42 of 83)

¶733

[CW-7359/2019]

¶734

5.17. That all the counter claims are submitted by the respondent no. 3 in large no. of cases after the final arguments on 07.09.2020 and due to paucity of time could not be replied as per procedure prevailing in the Hon'ble Court but the counter claim is refuted in all cases claimed by the respective retired bank officers (respondent no. 3) and the reply to the counter claim is submitted

¶735

as under:

¶736

The appellate authority in all cases has turn down the wrongly claimed and ordered by the controlling authority by misinterpreting the provision laid down under the regulations 72(3) in its first proviso providing for officer and employees who have completed more than 30 years of service to be eligible for additional amount of gratuity @ of one half of a month's pay for each completed year of service beyond 30 years.

¶737

That the provision is unambiguous and clear but intentionally by misinterpretation the respondents are submitting their counter claim which is not admissible.

¶738

The proviso to the regulation 72(3) clearly states that @ of one half of a month’s pay for each completed year of service beyond 30 years that means 1/2 of a month's pay. If there would have one and half then it would have been 1-1/2 (one and half) while it is no ambiguity and the order of the appellate authority to this extent is right in rejecting the claim of the retired officers.

¶739

5.18. That the respondent no. 3 has argued with wrong interpretation of provision laid down under section 4(5) and section 14 of the Act of 1972. The provision laid down under section 4(5) of the Act 1972 in Beed District Central Cooperative Bank case and Allahabad Bank VS All India Allahabad Bank retired

¶740

(43 of 83)

¶741

[CW-7359/2019]

¶742

officers case where in by the Hon^t ble Supreme Court the ambit and scope is clearly deliberated. The judgments are submitted with -these written arguments.

¶743

While the ambit and scope of section 14 of the Act 1972 is not applicable in the present case as the claimants are to opt either of the calculated amount based on the formula of either Act of 1972 or service regulation 2010, hence there is no ambiguity and conflict in the matter regarding the supremacy or over riding. As either of the two i.e. Act of 1972 provisions or the provisions of service regulations 2010 are to be applied. The claimants are cleverly want to segregate the beneficial terms of both and the controlling and appellate authority wrongly allowed such segregation which is clearly barred by the Hon'ble Supreme Court.

¶744

5.19. That the payments made by some of the Regional Rural Banks ignoring the clear provisions laid down under the service regulations 2010, hand in glove, as all the present working officers are also to be benefited of such wrong payments in future cannot be ground of payment to such claimants in the present writ petitions claiming the gratuity to be under a social legislature cannot be permitted putting the public money to be looted by manipulations.

¶745

5.20. That the applications filed by various retired employees where retirement ranging from the year 2008 to 2018 were time barred. It is pertinent to mention here that the controlling authority has condoned the delay even when no application for condonation of delay was filed by the respondent employees/officers which is unjust and arbitrary.

¶746

(44 of 83)

¶747

[CW-7359/2019]

¶748

5.21. That as per the provision Rule 10 of the Payment of Gratuity (Central) Rules, 1972 read as under: —

¶749

10. Application to controlling authority for direction. - (1) If an employer-

¶750

(i) refuses to accept a nomination or to entertain an application sought to be filed under rule 7, or

¶751

(ii) issues a notice under sub-rule (1) of rule 8 either specifying an amount of gratuity which is considered by the applicant less than what is payable or rejecting eligibility to payment of gratuity, or

¶752

(iii)having received an application under rule 7 fails to issue any notice as required under rule 8 within the time specified therein, the claimant employee, nominee or legal heir, as the case may be, may, within ninety days of the occurrence of the cause for the application, apply in Form 'N' to the controlling authority for issuing a direction under sub-section (4) of section 7 with as many extra copies as are the opposite party:

¶753

Provided that the controlling authority may accept any application under this sub-rule, on sufficient cause being shown by the applicant, after the expiry of the specified period.

¶754

2) Application under sub-rule (1) and other documents relevant to such an application shall be presented in person to the controlling authority or shall be sent by registered post acknowledgment due.

¶755

Bare perusal of the Rule 10 provides that the application to the Controlling Authority should be filed within 90 days.

¶756

5.22. That the Hon' ble Supreme Court in U.P. Jal Nigam

¶757

& Anr Vs Jaswant Singh & Anr judgment dated 10.11.2006 has observed as under: —

¶758

"The statement of law has also been summarized in Halsbury's Laws of England, Para 911, pg.395 as follows

¶759

(45 of 83)

¶760

[CW-7359/2019]

¶761

"In determining whether there has been such delay as to amount to laches, the chief points to be considered are

¶762

(i) acquiescence on the claimant's part;

¶763

and

¶764

(ii) any change of position that has occurred on the defendant's part.

¶765

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.

¶766

In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the

¶767

(46 of 83)

¶768

[CW-7359/2019]

¶769

respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence."

¶770

5.23. That the Hon'ble Supreme Court while passing the judgment dated 13.09.2013 in Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649 has laid down certain principles for condonation of delay as under: —

¶771

"15. From the aforesaid authorities the principles that can broadly be culled out are:

¶772

i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

¶773

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

¶774

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

¶775

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

¶776

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief

¶777

(47 of 83)

¶778

[CW-7359/2019]

¶779

because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

¶780

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

¶781

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

¶782

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

¶783

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

¶784

xiii) The State or a public, body or an entity representing a collective cause should be given some acceptable latitude.

¶785

16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

¶786

(48 of 83)

¶787

[CW-7359/2019]

¶788

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

¶789

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

¶790

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory.

¶791

d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. "

¶792

5.24. That the Hon'ble Supreme Court in Basawaraj & Anr. Vs The Spl. Land Acquisition Officer AIR 2014 SC 746 has held that: -

¶793

"Condonation of delay without considering the most relevant factor i.e. "sufficient cause" only on the condition that applicant would be deprived of interest for the delay period is most in appropriate. Where a case has been presented in the Court beyond limitation, the applicant has to explain the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by the Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever, amount to passing an order in

¶794

(49 of 83)

¶795

[CW-7359/2019]

¶796

violation of the statutory provisions and it tantamount to showing utter disregard to the legislature."

¶797

5.25. That the Hon'ble Supreme Court in Gagandeep

¶798

Pratishthan Pvt. Ltd. G Others Vs M/S Mechano and Anr.,

¶799

AIR 2002 SC 204 has held that: -

¶800

"In view of the peculiar facts of the case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned. Be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceedings with the appeal any further. We also think it to be just and proper that any further in interim orders if necessary in the appeal before the High Court in regard to the suit property should be made only after deciding the question of delay and maintainability of the appeal..... ."

¶801

5.26. That the Hon'ble Madras High Court in M. Devarajulu

¶802

Vs Asst. Commissioner of Labour & Ors. judgment dated

¶803

25.11.1992 has held that: —

¶804

"In cases where the institution of proceedings is conditioned upon any time limit and when a proceeding is initiated beyond the time limit and is accompanied by an application for condonation of the delay in presenting such a claim or petition, unless such a delay in condoned after hearing the parties before it, it could not be legitimately stated that a valid proceeding has been instituted before the forum, to enable it to enter into an adjudication of the claim on merits. Till the delay is condoned by a specific order for that purpose under the signature and authority of the Presiding Officer of

¶805

(50 of 83)

¶806

[CW-7359/2019]

¶807

the forum concerned, in law, it should be taken that there is no proceeding, as such, before it. Before the main claim petition could be considered on merits, the delay should first be considered and condoned and orders passed thereon and only thereafter the legality of the claim on its merits has to be taken up."

¶808

5.27. That the Hon'ble Karnataka High Court in Bangalore Metropolitan Transportation Corporation Vs The Deputy Chief Labour Commissioner and the Appellate Authority under PG Act & Ors. judgment dated 07.01.2008 has held

¶809

that: —

¶810

"9..........However, the proviso to Rule 10 does not show that, if the application is made beyond the period prescribed under Rule 10, an application showing sufficient cause is required to be made. This aspect of the matter is considered by the Bombay High Court replying on the judgment of the Apex Court at para—23 wherein it is held, in absence of condoning the delay, the Controlling Authority to deal with the application on merit could be one without jurisdiction. The Bombay High Court hag relied on a judgment of the Apex Court reported in AIR 2002 SC 204 in the matter of Ganagndeep Pratishthan Pvt. Ltd. Vs Mechano.

¶811

10. In this case, learned Counsel appearing for the legal representatives of the respondent No. 2 does not dispute that, except claim petition in terms of Form, 'N', no application is filed for condonation of delay by showing sufficiency of cause. It is also not disputed that, Form, 'N' by itself does not provide for explanation of the delay. When reading of Rule 10 clearly indicated that, an application for claim under Rule 10 is required to be made in 90 days and any application made beyond 90 days requires sufficient cause and sufficient case should be shown only by filing an application along with Form 'N'.

¶812

(51 of 83)

¶813

[CW-7359/2019]

¶814

11. Considering the facts and circumstances of the case and also the judgment of the Bombay High Court and also the Division Bench decision of the Madras High Court reported in 1995 (I) LLJ 348 (supra), I am of the opinion that, if an application is made before the Con trolling Authority beyond the stipulated time prescribed in Rule 10, then the said claim or application requires an application for condonation of delay showing sufficient cause, without there being such application, the Controlling Authority proceeding with the matter would be in violation of Rule 10 of the Rules. Hence, the petition requires to be allowed. "

¶815

5.28. That the Hon'ble Karnataka High Court in Karnataka State Road Transport Corporation Vs The Deputy Chief Labour Commissioner judgment dated 08.10.2013 has

¶816

held that: —

¶817

"A perusal of the affidavit accompanying the application is a clear indicator of the fact that the 3^rd respondent did not seek to condone the delay of 14 years but sought to condone the delay without making a reference to the period of delay. The averments in the affidavit accompanying the application state that a friend of the deponent advised him to file an application. Material particulars and the dates are not forthcoming. The inordinate delay of 14 years in initiating the proceedings is not satisfactorily explained and therefore, the Controlling authority, in my considered opinion as fully justified in declining to condone the delay. The Appellate Authority, without noticing the fact that no explanation is forthcoming for the delay, adopted a perverse approach to condone the delay. The exercise of judicial discretion in the absence of relevant material particulars , is unwarranted calling for interference. It is elsewhere said that the discretion to condone the delay like any other judicial discretion must be exercised with vigilance and circumspection, according to justice, common sense and sound judgment. The word 'sufficient cause' should receive a

¶818

(52 of 83)

¶819

[CW-7359/2019]

¶820

liberal construction so as to advance the cause of substantial justice when no negligence or inaction or want of bonafides is imputable to the applicant."

¶821

5.29. That Hon'ble Supreme Court in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134 , at Paragraph 13, the words " reasonable time " as explained, is as follows: "13. The word reasonable has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word? reasonable?. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the? reasonable time? is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar? The Law Lexicon it is defined to mean: A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than? directly?; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea?

¶822

5.30. That from bare perusal of the provisions of the Rajasthan Marudhara Gramin Bank (Officers And Employees) Service Regulations, 2010, it is clear that Dearness Allowance is not included in gratuity under Rule 72 (3) for 'Officer' defined

¶823

(53 of 83)

¶824

[CW-7359/2019]

¶825

under Rule 2 (I) of the said Rules. However, Dearness Allowance is specifically included in gratuity under Rule 72 (3) for 'Employees' defined under Rule 2 (j) of the said Rules. It is pertinent to mention here that the applicant has never challenged the said provisions before any court of law and has approached the Controlling Authority which was not having any jurisdiction to interpret the provisions of the Rules, 2010.

¶826

5.31. That the Hon'ble Supreme Court by judgment dated 29.04.2020 in BHC Electric Limited Vs Pradeep Mehra has observed as under:

¶827

"23. In Beed District Central Cooperative Bank Ltd. 4, the gratuity scheme provided by the employer had better rate for computing gratuity but the ceiling limit was lower; whereas the entitlement under the provisions of the Act was at a lesser rate but the ceiling prescribed by the Act was higher than what was provided by the employer. This Court laid down that an employee must take complete package as offered by the employer or that which is available under the Act and he could not have synthesis or combination of some of the terms under the scheme provided by the employer while retaining the other terms offered by the Act. That was a situation where two alternatives were available to the employee. The High Court in the present case, however, distinguished said decision on the ground that the Scheme of the appellant "itself provided for the rates as per Section 4 (2) of the Act but without upper limit under Section 4 (3) of the Act". In our view, the High Court failed to consider the effect and impact of Rule 6 (b) of the scheme. The Single Judge did refer to said Rule 6 (b) but found that the Rule was so broadly drafted that it could not be construed to contemplate the ceiling limit under Section 4 (3) of the Act. In our view, the true import of Rule 6 (b) which gets further emphasized by stipulation in the Appendix to the Scheme

¶828

(54 of 83)

¶829

[CW-7359/2019]

¶830

was lost sight of by the authorities under the Act and by the High Court. If an employee is covered by the provisions of the Act, according to said Rule 6 (b) the amount of gratuity has to be calculated in accordance with the provisions of the Act. The Appendix to the Scheme reiterates the same principle. Thus, in case of such an employee the gratuity has to be calculated in accordance with the provisions of the Act and while so calculating, not only the basic principle available in Section 4 (2) as to how the gratuity is to be calculated must be applied but also the ceiling which is part of Section 4 (3) must also apply. The rates and the modalities of calculations of gratuity as available under the Scheme of the Rules are to apply only to those employees who are not covered by the provisions of the Act.

¶831

24. We have, therefore, no hesitation in holding that the Authorities under the Act and the High Court erred in accepting the claim preferred by the respondent. We hold that the appellant was right in going by the provisions of the Act in the present matter and by the ceiling prescribed under Section 4 (3) of the Act. Any mistakes on its part in making some extra payments to some of the other employees would not create a right in favour of others in the face of the stipulations in the Trust Deed and the Scheme.

¶832

5.32. That the respondent employee has referred the judgment passed by the Hon'ble Madhya Pradesh, High Court. It is submitted that from bare perusal of the judgment passed by the Hon'ble MP High Court it can be seen that the Hon'ble Court has specifically dealt with the interpretation of Madhyanchal Gramin Bank (Officers and Employees) Service Regulation, 2010 & (Amendment) 2013— Clause 2 (i) (m) (o) read with Regulations 72— For determining last pay drawn for the purpose of calculation of gratuity and Dearness Allowance is to be taken into account. It is pertinent to mention here that the other aspects like delay in

¶833

(55 of 83)

¶834

[CW-7359/2019]

¶835

filing application before the Controlling Authority, Jurisdiction of Controlling Authority to give interpretation to the Service Regulations, Applicants intention to take benefit of both Act & Service Regulations were not in question before the Hon'ble High Court.

¶836

It is further submitted that the applicant and other Employees & Officers of the respondent Bank were duly provided the copy of Rajasthan Marudhara Gramin Bank (Officers & Employees) Service Regulations, 2010, but none of the Employee or Officer of the Bank has challenged the Service Regulations, 2010 with respect to the dispute raised before this Controlling Authority while in service or after completing the superannuation age, hence, thereby giving their silent consent to the said Regulations.

¶837

5.33. That the appellate authority while partly allowing the appeal has given benefit of inclusion of Dearness Allowance in the definition of 'Pay' under Rajasthan Maudhara Gramin Bank (Officers & Employees) Service Regulations 2010 to the respondent employee , taking reference of the Hon'ble Madhya

¶838

Pradesh High Court judgment dated 06.09.2018 in Ali India

¶839

Gramin Bank Pensioners Organization Unit Rewa vs. Madhyanchal Gramin Bank & another, the Hon'ble High Court at para 24 of the said judgment has observed as under: —

¶840

"(24) In view of aforesaid analysis, in the considered opinion of this Court the respondents have erred in not including DA while calculating gratuity under the Regulations. Thus, respondents are directed to include DA and recalculate the gratuity of the petitioners and pay the difference arising thereto to the petitioners within 60 days from the date of communication of this order. Since, employer has not taken

¶841

(56 of 83)

¶842

[CW-7359/2019]

¶843

into account the DA for calculating gratuity because of a genuine interpretation problem which is not based on any other reasons like lethargy or inaction, I am not inclined to grant interest on such payment of gratuity to the petitioners."

¶844

From perusal of the aforesaid judgment, it is evident that the Hon'ble Court has allowed the Dearness Allowance as part of 'Pay' while interpreting the provisions of the '(a) Madhyanchal Gramin Bank (Officers and Employees) Service Regulation, 2010 & (Amendment) 2013- Clause 2 (i) (m) (o) read with Regulation 72 For determining last pay drawn for the purpose of calculation of gratuity and Dearness Allowance

¶845

is to be taken into account. ' In Exercise of its powers under article 226 whereas in present case and other similar writ petitions the respondent employee has never challenged the Rajasthan Marudhara Gramin Bank (Officers & Employees) Service Regulations, 2010.

¶846

5.34. That the proviso for calculation of gratuity under the payment of Gratuity Act, 1972 and Service Regulations, 2010 are under:

¶847

A) Proviso under PG Act, 1972: —

¶848

Last wages drawn on date of leaving 15 length of service/26

¶849

B) Proviso under Service Regulations, 2010: —

¶850

(1) Upto 30 years of service— Pay X 15

¶851

(2) For additional 30 years of service

¶852

(i.e. beyond 30 years) — Pay X additional years of service/2

¶853

(57 of 83)

¶854

[CW-7359/2019]

¶855

The appellate authority has passed the impugned order in contradiction of the order passed by the Hon'ble Supreme Court in Beed District (Supra) because the employee cannot opt for the both contrary to this the appellate authority has awarded Dearness allowance as well as also taken divisor of 26 days for calculation under Service Regulations, 2010 which is not provided under the act. Further, the appellate authority has completely failed to consider the findings of the Hon'ble Madhya Pradesh High Court in All India Gramin Bank (Supra) where the Hon' ble Court has refused to grant any interest to the employees, contrary to this the appellate authority has granted interest to the respondent employee from the date of retirement.

¶856

6.1. Per contra, learned counsel for the retired bank officers have made their submissions in the ensuing paragraphs.

¶857

6.2 That, in these batch of writ petitions, except S.B. Civil Writ Petition No.11972/2019 (item No.59), the petitioner Bank has basically questioned the orders passed by the learned Controlling Authority and learned Appellate Authority under Payment of Gratuity Act, 1972, wherein the answering-respondent-claimants are retired officers of petitioner Bank, who have retired from bank service, on reaching the age of superannuation and when they were not paid their full due amount of gratuity, they approached to the learned Controlling Authority under Payment of Gratuity Act, 1972 and submitted their individual claims, for paying them differential amount of gratuity with interest, after proper calculation/determination of gratuity amount, by adding dearness allowance in their 'last pay drawn', and also prayed to pay gratuity

¶858

(58 of 83)

¶859

[CW-7359/2019]

¶860

for excess services rendered beyond 30 years of service, by applying correct formula by taking 45 days as pay, for one half month period, as provided in the Regulation 72(3) of the respondent Bank Service Regulation-2010, which claim has been allowed. However the learned Appellate Authority under Payment of Gratuity Act, 1972, interfered in the orders of the Controlling Authority in relation to formula of one half month pay and treated the said period as (.5 month) means 15 days only in place of 45 days and accordingly reduced the gratuity amount, in the appeals filed by petitioner Bank. However, now both these orders are under challenge in these writ petitions, at the instance of petitioner Bank. But in writ petition no. 11972/2019 (item no. 59), the challenge is made only to the order passed by the learned Controlling Authority, which has also wrongly applied formula of 15 days only for excess service beyond 30 years.

¶861

6.3. The challenge to these orders of learned Controlling Authority and learned Appellate Authority under Payment of Gratuity Act, 1972 is basically made on three fold grounds; (i) Gratuity claim is time barred, (ii) the RMGB Service Regulation-2010, does not provide for any dearness allowance on "PAY" for the purpose of calculating/determining amount of Gratuity to retired officers of Bank; and (iii) respondent-claimant could not take benefit of Gratuity claim both under Payment of Gratuity Act, 1972, as well as under Rajasthan Marudhara Gramin Bank (Officers & Employees) Service Regulation2010 , as one has to chose either of them, for claiming benefit of gratuity.

¶862

(59 of 83)

¶863

[CW-7359/2019]

¶864

In regards to aforesaid three issues, raised by the petitioner Bank, it is respectfully submitted as under:-

¶865

(i) The Payment of Gratuity Act, 1972, does not provide any time limit, for making a claim before Controlling Authority, rather it casts a duty and obligation, upon the employer to make payment of gratuity, as entitled to employee, in accordance to law, within stipulated time provided in Rule 7 of the Payment of Gratuity (Central) Rules 1972, wherein 30 days time limit is provided for submitting an application to employer. However, in terms of Section 7(2) of the Act, of 1972, statute caste duty on employer to determine gratuity amount, whether claim application submitted by employee concerned or not . It is also submitted that, under the Rules of 1972, under Rule-10, there are three contingencies, in which a claim application could be submitted directly to the Controlling Authority. It is also submitted that, Section 7(3) of the Act, of 1972, makes obligatory to employer to make payment of gratuity, to employee, within 30 days. It is also submitted that, under Section 8 of the Act, of 1972, an application could be submitted to Controlling Authority, by retired employee and no time limit has been prescribed for filing such claim application and even Rule 7(5) of the Rules of 1972, also says that;

¶866

“Provided that an application for payment of gratuity filed after the expiry of the periods specified in this rule shall also be entertained by the employer, if the applicant adduces sufficient cause for the delay in preferring his claim, and no claim for gratuity under the Act shall be invalid merely because the claimant failed to present his application within the specified period . Any dispute in this regard shall be referred to the controlling authority for his decision".

¶867

(60 of 83)

¶868

[CW-7359/2019]

¶869

In view of above, the contention of the Bank on the question of delay would not sustain. Because in this case, the Bank, which was under obligation determine correct gratuity amount, on retirement of respondent-claimant officers, failed to pay the due amount and paid gratuity, without adding dearness allowance.

¶870

(ii) That, the second contention of the petitioner bank, which is more crucial be decided; whether a retired officer of the bank , would be entitled to receive gratuity, based on pay, after adding dearness allowance to basic pay, while taking into account the 'last pay drawn' of retired officer, in terms of Regulation 72(3) of the Regulation-2010? More so, whether petitioner Bank could use two yardstick for retired officers of the Bank and retired employees of the Bank, for calculating amount of gratuity, wherein in the later case, dearness amount has been added in last pay, but in former case, dearness allowance is not added in the last pay of retiring officers of the Bank?

¶871

(a) Although while hearing on such objection raised by the Madhyanchal Gramin Bank, the Hon'ble MP High Court (D.B.), overruled the said contention in W.A. No. 1318/2018, in its order dated 03.10.2018 and held that, two yardstick cannot be applied, for the purpose of determination of gratuity for officers and employees separately.

¶872

(b) That, it is relevant to submit here that, amount of gratuity is always determined for all set of employees, on their " last pay drawn ". The Bank Regulation-72(3) nowhere says that, last pay for the purpose of determining gratuity, means basic pay only. In fact, for officers "last pay drawn" word has been used in Regulation 72(3) and for employees it is average pay of 12 months prior to retirement, which would include 100% basic pay, dearness allowance and special allowance and officiating

¶873

(61 of 83)

¶874

[CW-7359/2019]

¶875

allowance payable during 12 months preceding death, retirement . That, means for employees, it would be determined by average of pay of last 12 months preceding retirement. However for officers, it would be determined on last pay and " Last Pay Drawn " does not mean only basic pay of last month, preceding retirement . Therefore the Bank has unnecessary given dispute, to undisputed statutory provisions, due to lack of understanding of service regulation and it was responsible for determining the correct amount of gratuity, as per law.

¶876

(c) In this regard it is further respectfully submitted that, issueraised by the petitioner Bank has been already decided by the various other Hon'ble High Courts of this country, i.e. by the Hon'ble Madhya Pradesh High Court by Hon'ble Single Bench in the case of " All India Gramin Bank Pensioners Organization Unit Rewa Vs. Madhyanchal Gramin Bank & Another (Writ Petition no. 9182-2017 decided on 06.09.2018), which judgment of the Hon'ble Single Bench has been further upheld by the Hon'ble Madhya Pradesh High Court by Hon'ble Division Bench in Writ Appeal No. 1318/2019, decided on 26.02.2019, which decision has been further upheld by the Hon'ble Supreme Court, in SLP No.11113-11115/2019 decided on 07.05.2019, wherein it is held that, dearness allowance (DA) forms part of pay, as it is admissible for calculation of gratuity in the last pay drawn by employee . The similar view has been taken by the Hon'ble Karnataka High Court, by Hon'ble Calcutta High Court and in the latest decision rendered by the Hon'ble Chattisgarh High Court.

¶877

(d) It is also respectfully submitted that, on the issue, whether DA should be included in the Basic Pay and should form part of " Last Pay Drawn ", and other

¶878

(62 of 83)

¶879

[CW-7359/2019]

¶880

various issues, raised by the petitioner bank in this writ petition as well, the similar view has been taken by the Hon'ble Chattisgarh High Court recently in Writ Petition (L) No.55/2020 titled Chhattisgarh Rajya Gramin Bank Vs. Meghraj Pathak and other connected matters, decided on 31.08.2020 . Thus the issue raised by the petitioner Bank is no more res-integra and said decisions squarely covers case of respondentclaimants. Hence on this ground this writ petition deserves to be dismissed with cost, to be awarded to respondent no. 3.

¶881

(e) That, the Hon'ble Supreme Court of India, in the case of Maharaj Krishan Bhatt and Anr. Vs. State of Jammu & Kashmir & ors, (2008) 9 SCC 24 , has held that, all similarly situated should be extended same benefit, when order of High Court has attained finality.

¶882

(f) That, to sum up the arguments on the question of admissibility of DA on basic pay in the last pay drawn, suffice is to say that, definition provided in Regulation 2(m) of Bank Service Regulation-2010 speaks of 'Pay', applicable to both officers and employees in equal terms, which includes emoluments as well; and definition provided in Sec. (i) speaks of emoluments, means aggregate salary and Sec.(o) speaks of Salary, means aggregate pay and dearness allowance . Thus, for the purpose of drawing meaning of pay, all the three definitions, are required to be read jointly and conjoint reading of said definitions draws only one conclusion that is; "pay means aggregate salary, including dearness allowance ". But the bank has failed to look into all the said definitions, for determining amount of gratuity on last pay drawn by retiring officers. Hence in no way, different meaning could be drawn in last pay, except, the one, already opined by the Hon'ble MP High

¶883

(63 of 83)

¶884

[CW-7359/2019]

¶885

Court and Hon'ble Chhattisgarh high Court. Thus contention of petitioner Bank would not sustain on this ground also.

¶886

(iii) That, in regards to third issue, raised by the bank, it is respectfully submitted by the humble respondent no. 3, that, both the legislation are beneficial legislation and where an employeederives higher benefits, the same should be allowed in the legislation, which entitles him higher benefits and this issue also has been dealt by the Hon'ble High Courts referred above. Therefore the two decisions cited by the petitioner Bank, while referring the decision of the Hon'ble Bombay High Court, would not sustain, in view of latest decision of the Hon'ble Chhatisgarh High Court supra. Hence contention would not sustain.

¶887

6.4. That regarding cross objections, it is respectfully submitted that, the order of the learned Appellate Authority, under Payment of Gratuity Act, 1972, also has been assailed by the petitioner Bank, in this writ petition and after going through the contents of the order of the learned Appellate Authority, the humble respondent/claimants have come to know that, while giving a wrong interpretation to the provisions of Rajasthan Marudhara Gramin Bank (Officers & Employees) Service Regulation-2010, for the purpose of calculating amount of gratuity, for the excess services rendered by employees, beyond 30 years of service, only half month pay has been taken for each number of year, whereas , a plan reading of regulation 72(3) of Regulation-2010, clearly shows that, for services excess 30 years of service, an additional amount to be paid in gratuity at the rate of "one half month pay", that is 45 days pay and not 15 days pay, as held by the learned Appellate Authority . Thus, due to said an error, committed on

¶888

(64 of 83)

¶889

[CW-7359/2019]

¶890

the part of learned Appellate Authority under Payment of Gratuity Act, in its decision, rendered against learned Controlling Authority, the difference of gratuity amount of respondent no.3 has been reduced from the amount, awarded by controlling authority. Therefore, order of the appellate authority, below, deserves to be set aside to said extent and order of the learned Controlling

¶891

Authority under Payment of Gratuity Act, 1972, deserves to be restored and differential amount to be paid to respondent no. 3, with interest, as awarded by the learned Controlling Authority.

¶892

6.5. That, there is yet another important aspect of the case, which respondent-claimants, came to know after filing reply that, an amendment in the Payment of Gratuity Act, 1972 has been made, wherein ceiling limit of Rs. 10.0 lakhs has been increased to 20.0 lakhs and thereafter the petitioner Bank has started paying gratuity to retired bank officers, by including dearness allowance to basic pay, in the last pay drawn, whereas in the Regulation 72(3) of the Bank Service Regulation-2010, there is no any change in the definition of "Pay", which shows, that, petitioner bank was in error, for drawing meaning of connotation of "Pay" provided in the service regulation . In view of above, the writ petitions filed by the Bank deserves to be dismissed with cost and compensation and it is also prayed, that the order of appellate authority, for reducing gratuity amount, may kindly be interfered and that order of the learned Controlling Authority, may kindly be restored, except in writ petition no.11972/2019, wherein order of controlling authority, deserves to be interfered to the extent of

¶893

(65 of 83) [CW-7359/2019]

¶894

applying correct formula for determining gratuity amount, for services, above 30 years.

¶895

After hearing the learned counsel for the parties and perusing the record of the case along with the precedent law cited, this Court finds that certain provisions of law need to be considered for deciding the dispute in question. Sections 4(5),

¶896

5(2) and 14 of the Payment of Gratuity Act, 1972 read as under:- Section 4(5) :-

¶897

Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer.

¶898

Section 5(2) :-

¶899

The appropriate Government may, by notification and subject such conditions as may be specified in the notification, exempt any employee or class of employees employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, such employee or class of employees are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.

¶900

Section 14:- Act to override other enactments, etc.

¶901

The provisions of this Act or any Rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.

¶902

(66 of 83)

¶903

[CW-7359/2019]

¶904

Paras no.2(1)(i), 2(1)(l), 2(1)(m) and 2(2) of the Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulations, 2010 read as under :-

¶905

2(1)(i):-

¶906

“Emoluments” means the aggregate of salary and allowances, if any;

¶907

2(1)(l):-

¶908

“ “Officer” means an officer of the Bank as classified under Clause (a) of sub-regulation (1) of regulation 3;

¶909

2(1)(m):-

¶910

“Pay” means basic pay drawn per month by the officer or employee in a pay-scale including stagnation increments and any part of the emoluments which may specifically be classified as pay under these regulations.

¶911

2(2) :-

¶912

Words and expressions used here in and not defined in the Act have the same meaning as assigned to them in the Act.

¶913

The core dispute is that while calculating the gratuity whether the bank was right in not taking basic pay, dearness allowance, PQP and FPP in the last pay drawn and thus whether less gratuity was awarded.

¶914

This Court takes note of the fact that as per the Clause 2(1)(m) of the Regulations of 2010, “ pay” means the basic pay drawn per month by the officer or the employee in a pay scale including stagnation increments and any part of the emoluments which may specifically be classified as pay under these regulations. Further, this Court also take note of Clause 2(2) whereby the words and expressions used herein and not defined

¶915

(67 of 83)

¶916

[CW-7359/2019]

¶917

in the Act have the same meaning as assigned to them. This Court also takes note of the fact that the Controlling Authority has recorded that the Sponsor-Bank of the petitioner i.e. State Bank of India had in fact considered the basic pay, PQP and stagnation increments as included in the pay.

¶918

On a bare reading of Section 2(s) of the Payment of Gratuity Act, 1972, “wages” means all emoluments. Section 4(5) of the Payment of Gratuity Act, 1972 has clearly laid down the law that nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. Thus, this Court can safely derive a conclusion that the Officers are entitled to get dearness allowance also included for the purpose of calculation of gratuity. The provision under Section 7(3) of the Payment of Gratuity Act which provides that the employer shall arrange to pay the amount of gratuity within a period of 30 days from the date it becomes payable to the person to whom the gratuity is payable, takes care of the limitation portion of the objections.

¶919

This Court also made a categorical query that as to how many Regional Rural Banks are operating in Rajasthan after amalgamation of the various Regional Rural banks under the Regional Rural Banks Act. To this, it was jointly informed by the learned counsel for the parties that one was Rajasthan Marudhara Gramin Bank and another was Baroda Rajasthan Kshetriya Gramin bank. When a query was put to the learned counsel for the parties that what was the position regarding inclusion of the emoluments in the pay for the purpose of computation of

¶920

(68 of 83)

¶921

[CW-7359/2019]

¶922

gratuity in Baroda Rajasthan Kshetriya Gramin Bank, the attention of this Court was drawn to communication made

¶923

by the Baroda Rajasthan Kshetriya Gramin Bank dated

¶924

12.08.2016, which reads as follows:-

¶925

“izdk@2016&17@eklaiz@9538 fnukad % 12-08-2016

¶926

vR;Ur xksiuh;

¶927

{ks=h; izca/kd]

¶928

cM+kSnk jktLFkku {ks=h; xzkeh.k cSad] {ks=h; dk;kZy;]

¶929

lHkh {ks= egksn;]

¶930

fo’k; % vf/kdkjh laoxZ dks ns; minku (Gratuity) jkf”k dh x.kuk esa ewy osru] ih-D;w-ih- o eagxkbZ HkRrs dks “kkfey djus ckcrA

¶931

fo’k;kUrxZr cSad LVkQ lsok fofu;e&2010 ds fu;e 72 ds vuqlkj vf/kdkjh oxZ gsrq ns; xzsP;qVh dh x.kuk esa ewy osru o ih-D;w-ih- ds lkFk eagxkbZ HkRrs dks “kkfey djus ds lEcU/k esa ukckMZ ,oa izorZd cSad }kjk fd;s x;s Li’Vhdj.k (Clearification) ij cSad ds funs”kd e.My }kjk lgefr iznku djus dks n`f’Vxr j[krs gq, vf/kdkjh laoxZ dks lsok fofu;e ds vuqlkj ns; xzsP;qVh dh x.kuk esa ewy osru o ih-D;w-ih- ds lkFk eagxkbZ HkRrs dks Hkh “kkfey fd, tkus dk fu.kZ; fy;k x;k gSA

¶932

rn~uqlkj la”kksf/kr xzsP;qVh x.kuk “khV layXu dj izsf’kr dh tk jgh gSA Hkfo’; esa vf/kdkfj;ksa gsrq xszP;qVh x.kuk esa ewy osru o ih-D;w-ih- ds lkFk eagxkbZ HkRrs dks “kkfey djus gq, xzsP;qVh x.kuk “khV izsf’kr dh tk,A

¶933

Hkonh;] lgh@& v”kksd dqekj tk;loky egkizca/kd”

¶934

(69 of 83)

¶935

[CW-7359/2019]

¶936

Thus, it became clear that the other Regional Rural Bank functioning under the Regional Rural Bank Act, 1976 in Rajasthan is already paying the gratuity after

¶937

including all the emoluments in the pay and thus, any discrimination between the two banks operating under the Regional Rural Bank Act shall not only be in violation of Articles 14 and 21 of the Constitution of India but shall also cause prejudice to the officers of the present bank vis-a-vis Officers of the other Bank. It is needless to reiterate that the connotation of statute in two Regional Rural Banks ought to be on the same pedestal.

¶938

The judgment rendered by Hon’ble Madhya Pradesh High Court in the case of All India Gramin Bank Pensioners Organization Unit Rewa vs. Madhyanchal Gramin Bank & another (writ petition no.9182/2017) decided on 6.9.2018 has dealt with an issue which is almost same on the pedestal, relevant paras no.15 to 24 whereof read as follow :-

¶939

“(15) Before dealing with the rival contentions of the parties, it is apposite the refer the definitions of “emoluments”, “pay” &“salary”. Regulation 72 is also relied upon by the parties. These provisions read as under:

¶940

“(i)“Emoluments” means the aggregate of salary and allowances, if any;

¶941

*** ******

¶942

(m)“Pay” means basic pay drawn per month by the officer or employee in a pay scale including stagnation increments and any part of the emoluments which may specifically be classifieds as pay under these regulations;

¶943

*** ******

¶944

(o)“Salary” means aggregate of pay and dearness allowance;

¶945

*** ******

¶946

72.Gratuity.- (1) An officer or employee shall be eligible for payment of gratuity either as per the provisions of the

¶947

(70 of 83)

¶948

[CW-7359/2019]

¶949

Payment of Gratuity Act, 1972 (39 of 1972) or as per subregulation (2), whichever is higher.

¶950

(2) Every officer or employee shall be eligible for gratuity on,-

¶951

(a) retirement,

¶952

(b) death,

¶953

(c) disablement rendering him unfit for further service as certified by a medical officer approved by the Bank, or

¶954

(d) resignation after completing 10 years of continuous service, or

¶955

(e) termination of service in any other way except by way of punishment after completion of 10 years of service:

¶956

Provided that in respect of an employee there shall be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank and in the case to that extent only.(3) The amount of gratuity payable to an officer or employee shall be one months pay for every completed year of service or part thereof in excess of six months subject to a maximum of 15 month’s pay:

¶957

Provided that where an officer of employee has completed more than 30 years of service, he shall be eligible byway of gratuity for an additional amount at the rate of one half of a month’s pay for each completed year of service beyond 30 years:

¶958

Provided further that in respect of an officer the gratuity is payable based on the last pay drawn:

¶959

Provided also that in respect of an employee pay for the purpose of calculation of the gratuity shall be the average of the basic pay (100%), dearness allowance and special allowance and officiating allowance payable during the 12 months preceding death, disability, retirement, resignation or termination of service, as the case may be.”[Emphasis Supplied]

¶960

(16) At the outset, I deem it proper to deal with the contentions of the parties regarding meaning of the word “Act” mentioned in Regulation 2(2). The word “Act” is clearly defined in Clause (a) of Regulation 2 which means the Regional Rural Banks Act, 1976 (21of 1976). Thus, I am unable to persuade myself with the submission of Shri Gohil that “Act” means payment of Gratuity Act.

¶961

(17) There is no quarrel between the parties that calculation of gratuity needs to be done on the basis of formula prescribed under the Regulation and as per the Payment of Gratuity Act. Employer has undertaken this

¶962

(71 of 83)

¶963

[CW-7359/2019]

¶964

exercise and as mandated in Regulation 72 (1) decided to grant gratuity as per regulations because this calculation is higher than the calculation under the Gratuity Act. This is also notit dispute that as per Section 4(3) of the Payment of Gratuity Act, there exists a ceiling on the amount of gratuity payable to an employee i.e. Rs.10,00,000/-. Thus, calculation under the regulation was on a higher side and paid to the officers. The spinal issue is whether the calculation of gratuity under the regulations must include DA. The definition of “wages” under the Payment of Gratuity Act although includes “Dearness Allowance”, said definition cannot be pressed into service in the instant case for the simple reason that calculation is made as per the Regulations and, therefore, definitions aforesaid will be decisive for the purpose of drawing meaning of words- “pay”, “emoluments” & “salary”

¶965

etc.

¶966

(18) The learned counsel for the parties have taken a diametrically opposite stand on the question of inclusion of DA for determination of amount of gratuity. Shri Gohil contend that second and third proviso of Clause (3) of Regulation 72 must be read conjointly. I do not see much merit in the said contention. A careful reading of Regulation 72 shows that the contention of Shri Shroti, learned senior counsel has substance that Regulation is worded in a fashion whereby it deals with “employees” and “officers” separately. The second proviso, in my opinion is relating to officers, whereas the third proviso covers the employees. As per second proviso, the pivotal question is regarding meaning of expression last pay drawn. This point requires serious consideration.

¶967

(19) The parties are at loggerheads on the meaning of the word “pay”. The officers contended that the word “pay” must be read with “emoluments” & “salary”, whereas, as noticed, the employer’s stand is that only such part of emolument can be treated as “pay” which is specifically classified as pay. Clause 2(m) shows that “pay” means basic pay of the officers/employees which includes stagnation

¶968

(72 of 83)

¶969

[CW-7359/2019]

¶970

increments and any part of emoluments which may specifically be classified as “pay” under these Regulations. The definition of “emoluments” shows that it is aggregate of salary and allowance. “Salary” includes aggregate of pay and DA.

¶971

(20) A microscopic reading of Regulations show that there exists no provision whereby any part of emolument may specifically be classified as pay. This expression– any part of emoluments which specifically be classified as pay needs interpretation. In my view, a conjoint reading of definition of “pay”, “emoluments” & “salary” is required for proper interpretation of the meaning of “pay” or the said highlighted expression. It is important to note that “emoluments” is aggregate of salary and allowance and “salary” is aggregate of pay and dearness allowance. Thus, said three definitions are deeply interlinked and correct meaning of said expression can be drawn by combined reading of said three provisions. The definition of “pay” refers about emolument, whereas emolument includes salary which includes pay and dearness allowance. Thus, dearness allowance is specifically classified and must form part of pay because the said definitions are closely interwoven. Otherwise, expression leads to an absurdity and impossibility. Absurdity, inconsistency and impossibility because in the Regulations there exists no provision for undertaking such exercise of specially classifying an emolument as pay.

¶972

(21) The settle law is that if the grammatical construction leads to some absurdity or inconsistency with the rest of instruments, it maybe departed from so as to avoid the absurdity and inconsistency.{See: AIR 1952 SC 324, [Shamrao vs. District Magistrate, Thana]; 1996 (2) All ER 23, [Imperical Chemicals Industries vs. Colmer] & 2009 (2) SCC 1, [Mahmadhusen Abdulrahim Kalota Shaikh v. Union of India]. Similar view is taken by Supreme Court in AIR 1998 SC 1070, [R. Rudraiah vs. State of Karnataka] and AIR 2000 SC 1261, [Molar Mal vs. Kay Iron Works]}. Justice CORDOZO said “A judge must

¶973

(73 of 83)

¶974

[CW-7359/2019]

¶975

think of himself as an artist, who although he must know the handbooks, should never trust to them for his guidance; in the end he must rely upon his almost instinctive sense of where the line lay between the word and the purpose which lay behind it.” {See: Mr. Justice Cordozo by Learned Hand, 52Harvard Law Review, pp. 361-63}.

¶976

(22) This is trite law that statute should not be construed as the orems of Euclid, but it should be construed with some imagination of the purposes which lies behind them. It is said by Judge LEARNED HAND in Lehigh Valley Coal v. Yensavage, 218Fed 547, pp. 552, 553 : 235 US 705 (1915). In the words of Justice Chhinappa Reddy, J “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.”. {See: Reserve Bank of India vs. Pear less General Finance and Investment Co.,reported in 1987 (1) SCC 424} . Iyer, J opined “to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of ‘deha’ and ‘dehi’ of the provision.” {See: AIR 1977 SC 965,[Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee ]}. In view of principles laid down in the said authorities, the definition, clauses and Regulation 72 must be read conjointly to draw the meaning of second proviso of Regulation 72 and, more particularly, meaning of “last pay”. As per the text and in the context the aforesaid expression relied upon by learned senior counsel is used, in my judgment “pay” includes dearness allowance as it exists as a classification in the definition of “salary” which has a direct nexus/relation with “emoluments” and “pay”.

¶977

(23) The matter may be viewed from another angle. The provision relating to grant of gratuity is a beneficiary

¶978

(74 of 83)

¶979

[CW-7359/2019]

¶980

provision. It must be considered on the anvil of beneficent rule of construction. It is trite law that in the matter of welfare legislation, especially involving the work force, the terms of contract and the provisions of law should be liberally construed in favour of weak. {See: Workmen of Binny Ltd. v. Management of Binny Ltd., reported in 1985 (4) SCC 325; Indian Bank vs. K. Usha, reported in AIR 1998 SC 866.}.

¶981

(24) In view of aforesaid analysis, in the considered opinion of this Court the respondents have erred in not including DA while calculating gratuity under the Regulations. Thus, respondents are directed to include DA and recalculate the gratuity of the petitioners and pay the difference arising thereto to the petitioners within 60 days from the date of communication of this order. Since, employer has not taken into account the DA for calculating gratuity because of a genuine interpretation problem which is not based on any other reasons like lethargy or inaction, I am not inclined to grant interest on such payment of gratuity to the petitioners.

¶982

(25) Petitions are allowed to the extent indicated above.”

¶983

The validity of the aforesaid Single Bench judgment rendered by Hon’ble Madhya Pradesh High Court was questioned before the Division Bench and the Division Bench affirmed the same vide judgment dated 26.2.2019, relevant paras no.9 to 12 whereof read as follow :-

¶984

“9. After having heard rival submissions of the parties, we do not find any merit in the present appeals. Chapter VII of regulation deals with the various provisions relating to provident fund, pension, gratuity, domicile, transferability, lending of services of an officer or employee to other organization, implementation of regulations and repeal and savings. The Regulation 72 provides that an officer or employee shall be eligible for payment of gratuity either as

¶985

(75 of 83)

¶986

[CW-7359/2019]

¶987

per the provisions of the Payment of Gratuity Act, 1972 or as per sub regulation (2) whichever is higher. Officer or employee are eligible for gratuity on retirement, death, disablement, resignation after completing 10years of the continued service or termination of service in any other way except by way of punishment after completion of 10 years of service. Sub section (3) provides the calculation of the amount of gratuity. The amount of gratuity payable to an officer or employee shall be one month's pay for every completed year of service or part thereof in excess of six months subject to a maximum of 15 month's pay. There is a proviso that an officer or employee who has completed more than 30 years of service, he shall be eligible by way of gratuity for an additional amount at the rate of one half of a month's pay for each completed year of service beyond 30 years. The second proviso states that in respect of an officer the gratuity is payable based on the last pay drawn. The “Pay” is defined under regulation 2(m) which means basic pay drawn per month by the officer or employee in a pay scale including stagnation increments and any part of the emoluments which may specifically be classified as pay under these regulations. Admittedly, no part of the emoluments has been specifically classified under the regulation as 'pay'. The 'emoluments' is defined under Regulation 2(i) means the aggregate of salary and allowances, if any. 'Salary' is further defined under Regulation 2(o) means aggregate of pay and dearness allowance. Thus, the learned Single Judge has rightly held after referring to the definitions of 'emoluments', 'pay' and 'salary' that a conjoint reading of definitions of 'emoluments', 'pay' and 'salary', 'the last pay drawn' under regulation 2 proviso of sub-regulation (3) of Regulation 72 would include dearness allowance for computation of gratuity in respect of officers as well.

¶988

10. The judgments referred above by the learned Senior Counsel in support of his contention would not render any assistance to contend that the intention of the Rule making

¶989

(76 of 83) [CW-7359/2019]

¶990

authority is to treat the officers differently from the employees in view of the definitions of ‘emoluments’, ‘pay’ and ‘salary’ and further Regulation 72.

¶991

11. In the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and Others, (1996) 3 SCC 52, the Apex Court ruled that in an intra-court appeal the appellate Court is a Court of correction which corrects its own orders, in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error.

¶992

12. We do not find any illegality in the impugned order passed by the learned Single Bench warranting any interference in these intra-court appeals. Accordingly, the writ appeals deserve and are hereby dismissed. No order as costs.”

¶993

Thereafter, the same proposition has been upheld by the Hon’ble Apex Court while dismissing the S.L.P. No. 1111311115/2019 preferred against the aforesaid judgment of the Hon’ble Madhya Pradesh High Court dated 26.2.2019.

¶994

The judgment of Hon’ble Calcutta High Court in the case of Aruk Kumar Basubal & Ors. vs. Bangiya Gramin Vikash Bank & Ors. has also dealt with the same issue, relevant paras no.8 to 12 whereof read as follow :-

¶995

“8. After hearing Counsel on behalf of the appearing parties and considering the materials on record, I find no reason whatsoever to differ from the judgement of the Single Bench and Division Bench passed by the Madhya Pradesh High court. The said judgement has dealt with the issue in extensia and the reasons enumerated therein are flawless. Keeping in mind, the beneficial nature of the regulation, a beneficial legislation is required to be interpreted in a manner that

¶996

(77 of 83)

¶997

[CW-7359/2019]

¶998

would accrue favourably to the beneficiary and not in a manner by way of an extremely strict interpretation.

¶999

9. In the present case, in fact, I find that the regulations are crystal clear and there is no room for doubt to the intention of the legislature in framing of these regulations.

¶1000

10. In light of the above, I hold that the petitioners shall be entitled to gratuity based on a calculation that would include 'dearness allowance' in the "last pay. The respondents are directed to include the dearness allowance and recalculate the gratuity of the petitioners and pay the difference arising thereto to the petitioners expeditiously and preferably within 90 days from date.

¶1001

11. The writ petition is, thus, disposed of.

¶1002

12. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis, upon compliance of necessary formalities.

¶1003

The Hon’ble Chattisgarh High Court has also dealt with an identical issue in the case of Chattisgarh Rajya Gramin Bank vs. Meghraj Pathak & Ors. (Writ petition no.55/2020) decided on 31.8.2020, relevant paras no.30 to 35 whereof read as follow :-

¶1004

“30. The real controversy between the parties is as to the basis of calculation of the amount of gratuity payable. Since there is no upper ceiling or cap provided in the regulations like under the Payment of Gratuity Act, the officers insisted that they be paid gratuity under the Regulations by including DA as a component within the expression Pay as defined under Clause-2M of the Regulations, 2013. The fact which requires consideration also is that there isno exclusion of DA reflected in the definition of Pay under the Regulations,2013. It is here that the definition of emolument becomes more relevant. The emolument under the definition under 2-I of the Regulations means aggregate of salary and allowances and

¶1005

(78 of 83)

¶1006

[CW-7359/2019]

¶1007

what exactly is salary is also defined under 2-O of the Regulations, 2013 which clearly holds that salary means aggregate Pay and DA.

¶1008

31. What needs to be considered now under the given circumstances is, can expression of Pay as is reflected under the definition clause 2-M of the Regulations, 2013 mean inclusive of DA or excluding DA ?

¶1009

32. If we read the definition Clause 2-M of the Regulations, it clearly reflects that the framers of the said Regulations were of the view that Pay means Basic Pay plus the emoluments which is classified as Pay. Now what are emolument which can be classified as Pay. The Bank has not produced any documentary proof to show what are those emoluments which according to the Bank is specifically classified as Pay. Under the circumstances, it becomes necessary to take the definition of emolument and the definition of salary together into consideration to decide whether the DA would be part of Pay for the purpose of calculating gratuity.

¶1010

33. It is here that the Single Bench of MP High Court has clearly held that the expression Pay, Emolument and Salary are interlinked, interconnected, interwoven and supplementing each other. This court fully endorses the view taken by the Single Bench of MP High Court. The view of this court gets further strengthened from the plain reading of Sub Clause-3 and the three provisos provided under Clause-72 of the Regulations, 2013.

¶1011

34. If the framers of the Regulations were of the view that for calculating gratuity for officers DA was not to be taken into consideration, they would have simply clarified it in the proviso as has been done in the case of ‘employees’ which is reflected in the 3rd proviso where in respect of an employee it has been specifically held that the gratuity shall be the average of basic pay plus DA and special allowances, whereas, so far as the officers are concerned, in the second proviso it has been specifically mentioned that the gratuity

¶1012

(79 of 83)

¶1013

[CW-7359/2019]

¶1014

shall be payable based upon the last pay drawn. Emphasis has been given on Pay. The authorities could have simply held that it would be payable on the basic pay and those allowances which are part of Pay under the Regulations. Having not done so, the term Pay would have to be given a broader and wider interpretation and the said interpretation should always be tilting towards the weaker section i.e. officers as payment of gratuity is one of those beneficial legislation enacted for the benefit of the employees and officers.

¶1015

35. As regards the judgments of Bombay High Court which has been heavily relied upon by the petitioner-Bank, true it is that the Bombay High Court has taken a different view than what has been taken by the MP High Court. It is also undisputed legal position that when there are two conflicting views available for a court in deciding the matter and if the two conflicting views are of the same High Court, the option left for this court is for referring the matter to a larger Bench. However, in case if the conflicting views are of different High Courts, the Bench has an option of testing and then to endorse a view from among the two that which is more probable and justifiable. This court finds the judgment of MP High Court to be more probable in the factual matrix of the case. Moreover, the judgment of MP High Court has also been tested before the Division Bench as also before the Supreme Court and before both the higher forums it has got the stamp of acceptance, unlike in the case of Bombay High Court where it is not known whether the judgment of the Bombay High Court has been subjected to challenge further or not. The same principle also applies so far as judgment of Allahabad High Court is concerned.”

¶1016

Though the judgment rendered by Hon’ble Bombay High Court cited by the learned counsel for the petitioner in the case of Vidarbha Konkan Gramin Bank vs. The Appellate Authority & Anr. (writ petition no.8272/2018), decided on

¶1017

(80 of 83)

¶1018

[CW-7359/2019]

¶1019

6.1.2020, was only a Single Bench judgment and where diametrically reverse view has been taken, and the same was taken into consideration by this Court, relevant paras no.20 to 22 whereof read as under :-

¶1020

“ 20. Thus, the petitioner Bank is justified in raising a grievance as regards the impugned orders passed by the Appellate Authority. In fact, the Appellate Authority did not discuss this main controversy between the parties at all and it proceeded on the basis that calculation of gratuity under the Act of 1972, as well as the Regulations resulted in the same quantum of amount and that since the Regulations did not have a cap or upper ceiling, the same would apply and not the Act of 1972. Therefore, the impugned orders passed by the Appellate Authority are rendered unsustainable.

¶1021

21. Once it is found that while calculating the amount of gratuity payable to the contesting respondents under the Regulations, only pay could be made the basis without adding dearness allowance, the quantum of gratuity payable to the contesting respondents comes to Rs.8,93,920/- in the case of respondent No.2 in Writ Petition No. 8272/2018 and Rs.7,61,740/- in the case of respondent No.2 in Writ Petition No.8273/2018, which is much less than the amount of Rs.10,00,000/- each disbursed by the petitioner Bank to the said contesting respondents. Thus, the petitioner Bank applied the provisions of the Act of 1972, while calculating the amount of gratuity payable to the contesting respondents, because by applying the provisions of the said Act higher gratuity was payable to the contesting respondents, despite the cap or upper ceiling of Rs.10,00,000/-. This amount for disbursal of gratuity amount was correctly approved by the Controlling Authority, while rejecting the applications filed by the contesting respondents for claim of additional amount of gratuity. But, the Appellate Authority failed to appreciate the contentions of the petitioner Bank.

¶1022

(81 of 83)

¶1023

[CW-7359/2019]

¶1024

22. In view of the above, the writ petitions are allowed. The impugned orders passed by the Appellate Authority are quashed and set aside and the orders passed by the Controlling Authority in the case of the contesting respondents are restored. Accordingly, the petitioner Bank is found not liable to pay any further amount towards gratuity to the contesting respondents as they admittedly received the amount of Rs.10,00,000/- from the petitioner Bank immediately upon their superannuation.”

¶1025

This Court is of the opinion that the judgment in Madhyanchal Gramin Bank (supra) rendered by the Hon’ble Madhya Pradesh High Court and upheld by the Hon’ble Apex Court is the correct view and also binding upon this Court on count of the same having been upheld by the Hon’ble Apex Court.

¶1026

Moreover, the Regulations of 2010 clearly define in Clause 2(1)(i) that emoluments means aggregate of salary and allowances and in Clause 2(1)(m) pay means basic pay drawn per month by the officer or employee in a pay scale including stagnation increments and any part of the emoluments which may specifically be classified as pay under these Regulations. As per the Clause 72(1) of the Regulations, for the purpose of gratuity, an officer or employee shall be eligible either as per the provision of Payment of Gratuity Act, 1972 or as per the Sub-Regulation (2), whichever is higher and thus, for the beneficial legislation of a welfare law, the benevolent connotation ought to have been accepted by this Court. There is no reason why this Court should take a different view than the one taken by the Hon’ble Madhya Pradesh High Court and affirmed by the Hon’ble Apex Court.

¶1027

The cross-objections made by the Officers do not warrant any interference by this Court because on a bare reading

¶1028

(82 of 83)

¶1029

[CW-7359/2019]

¶1030

of Clause 72(3) of the Regulations, it is clear that the Statute required the petitioner to pay half month’s pay for each completed year of service beyond 30 years. Clause 72(3) of the Regulations reads as follows:-

¶1031

“(3) The amount of gratuity payable to an officer or employee shall be one months pay for every completed year of service or part thereof in excess of six months subject to a maximum of 15 month’s pay:

¶1032

Provided that where an officer or employee has completed more than 30 years of service, he shall be eligible by way of gratuity for an additional amount at the rate of one half of a month’s pay for each completed year of service beyond 30 years:

¶1033

Provided that in respect of an officer the gratuity is payable based on the last pay drawn:

¶1034

Provided also that in respect of an employee pay for the purposes of calculation of the gratuity shall be the average of the basic pay (100%), dearness allowance and special allowance and officiating allowance payable during the 12 months preceding death, disability, retirement, resignation or termination of service, as the case may be.”

¶1035

Regulation 72(3) has an optimum gratuity prescribed upto maximum of 15 months’ pay and the concession given is only for the officers who have completed more than 30 years of service by making them entitled for an additional amount of one half of month’s pay for each completed year of service beyond 30 years, which is an exception to the maximum of 15 months’ pay gratuity rule and thus, the exception has to be read strictly.

¶1036

It is thus clear that the Appellate Authority has rightly arrived at a conclusion that the Officers who have completed more than 30 years of service shall be eligible by way of gratuity for the

¶1037

(83 of 83)

¶1038

[CW-7359/2019]

¶1039

additional amount at the rate of one half month’s pay for each completed service beyond 30 years.

¶1040

Thus, once the statute is clear, there is no question of of expanding the meaning. It is one thing to choose one of the beneficial conditions amongst two and it is another thing to expand the ambit of benefits which are strictly prescribed.

¶1041

Accordingly, the cross objections are dismissed.

¶1042

In light of the aforementioned observations, the legal issues, facts and grounds raised by the petitioners do not call for interference by this Court. Accordingly, all these writ petitions are dismissed and the orders of the Appellate Authority are upheld.

¶1043

The consequential benefits shall be released to the respondent officers within a period of three months starting from 1^st December, 2020.

¶1044

All pending applications stand dismissed accordingly. All the interim orders stand vacated forthwith.

¶1045

(DR. PUSHPENDRA SINGH BHATI),J

¶1046

SPhophaliya/Jitender

Rajasthan Marudhara Gramin Bank v. Kishan Singh Khiriya

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Rajasthan Marudhara Gramin Bank v. Kishan Singh Khiriya

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