Netram Sahu vs State Of Chhattisgarh

Netram Sahu ….Appellant(s)

VERSUS

State of Chhattisgarh & Anr. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 01.08.2014 passed by

the High Court of Chhattisgarh at Bilaspur in Writ

Appeal No.240 of 2014 whereby the Division Bench

of the High Court dismissed the appeal filed by the

appellant herein and affirmed the judgment and

order dated 16.12.2013 passed by the Single Judge

Signature Not Verified of the High Court in Writ Petition(L) No.178 of 2013 Digitally signed by ASHA SUNDRIYAL Date: 2018.03.23 17:16:54 IST Reason: by which the Single Judge allowed the petition

1 preferred by the respondents herein and set aside

the orders of the Controlling Authority and

Appellate Authority by which the claim of the

appellant herein of gratuity for the period from

01.04.1986 to 23.05.2008 was allowed.

2. Few relevant facts need mention to appreciate

the short controversy involved in the appeal.

3. The appellant was appointed as daily wager on

01.04.1986 by the Water Resources Department of

the State of Chhattisgarh and was attached to the

office of SDO (E/M) Light Machinery Tubewell &

Gage Sub-Division Sakri, P.S. Charkarbhata,

District Baster (CG). Subsequently, the services of

the appellant were regularized on work charge

establishment to the post of Pump Operator by

order dated 06.05.2008. After attaining the age of

superannuation, the appellant retired on

30.07.2011.

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4. The appellant was, however, not paid the

gratuity amount by the State which, according to

him, was payable to him after his retirement.

Therefore, the appellant filed an application before

the Controlling Authority under the Payment of

Gratuity Act, 1972 (hereinafter referred to as “the

Act”) and prayed for payment of gratuity amount to

him in accordance with the provisions of the Act.

5. By order dated 27.03.2012, the Controlling

Authority allowed the application and held that the

appellant is entitled to claim gratuity amount from

the State for the services rendered by him. It was

further held that the appellant has in all rendered

25 years and 3 months of service (22 years and 1

month as daily wager and 3 years and 2 months as

regular work charge employee) and hence rendered

the required years of qualified service as per the

requirements of the Act.

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6. The State felt aggrieved and filed appeal before

the specified Appellate Authority under the Act. By

order dated 30.01.2013, the Appellate Court

dismissed the appeal filed by the State and affirmed

the order of the Controlling Authority.

7. The State pursued the matter and filed Writ

Petition No.178/2013 against the order passed by

the Appellate Authority in the High Court of

Chhattisgarh at Bilaspur. The Single Judge of the

High Court, by order dated 16.12.2013 allowed the

writ petition and set aside the orders of the

Controlling Authority and the Appellate Authority.

8. The appellant herein (employee) felt aggrieved

by the order of the Single Judge and filed writ

appeal before the Division Bench. By impugned

judgment, the Division Bench dismissed the

appellant's appeal and upheld the order passed by

the Single Judge, which has given rise to filing of

4 the appeal by way of special leave by the employee

concerned in this Court.

9. The short question, which arises for

consideration in this appeal, is whether the High

Court (Single Judge/Division Bench) was justified in

holding that the appellant (employee) was not

entitled to claim gratuity from the State (respondent

herein) for the services rendered by him or in other

words, the question arises for consideration is

whether the appellant can be held to have rendered

qualified service, i.e., continuous service as

specified in Section 2(e) read with Section 2A of the

Act so as to make him eligible to claim gratuity, as

provided under the Act, from the State.

10. Heard Mr. Kiran Kumar Jaipuriar, learned

counsel for the appellant and Mr. Aniruddha P.

Mayee, learned counsel for the respondents.

11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

5 are inclined to allow the appeal and while setting

aside the orders of the High Court (Single Judge and

Division Bench) restore the orders of the Controlling

Authority and Appellate Authority.

12. It is not in dispute that the appellant has

actually rendered the total service for a period of 25

years 3 months, i.e., from 01.04.1986 to 30.07.2011

to the State. It is also not in dispute that the

appellant's services were regularized by the State by

order dated 06.05.2008, i.e., much prior to the

appellant attained the age of superannuation. It is

also not in dispute that the appellant's 25 years and

3 months period of service satisfied the rigor of the

expression "continuous service" as defined under

Section 2-A of the Act.

13. The submission of the learned counsel for the

respondent-State was that the appellant could not

be held eligible to claim the gratuity amount

because out of the total period of 25 years of his

6 service, he worked 22 years as daily wager and only

3 years as regular employee. It is for this reason,

the learned counsel urged that the appellant could

not be said to have worked continuously for a period

of 5 years as provided under the Act so as to make

him eligible to claim gratuity.

14. We do not agree with this submission of

learned counsel for the respondent-State for more

than one reason. First, the appellant has actually

rendered the service for a period of 25 years;

Second, the State actually regularized his services

by passing the order dated 06.05.2008; Third,

having regularized the services, the appellant

became entitled to claim its benefit for counting the

period of 22 years regardless of the post and the

capacity on which he worked for 22 years; Fourth,

no provision under the Act was brought to our

notice which disentitled the appellant from claiming

the gratuity and nor any provision was brought to

7 our notice which prohibits the appellant from taking

benefit of his long and continuous period of 22

years of service, which he rendered prior to his

regularization for calculating his continuous service

of five years.

15. In our considered opinion, the High Court

committed an error in placing reliance on the

decision of this Court in Secretary, State of

Karnataka & Ors. vs. Umadevi(3) & Ors., (2006) 4

SCC 1 to deny the relief of grant of gratuity to the

appellant. In the case at hand, the High Court

should have seen that the services of the appellant

was actually regularized by the State and, therefore,

the law laid down in Umadevi(supra) could not be

relied on. Indeed, even the decision of Umadevi

(supra) makes a distinction in cases and where the

services stand regularized, the ratio of Umadevi to

deny the relief would not apply.

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16. In our considered opinion, once the State

regularized the services of the appellant while he

was in State services, the appellant became entitled

to count his total period of service for claiming the

gratuity amount subject to his proving continuous

service of 5 years as specified under Section 2A of

the Act which, in this case, the appellant has duly

proved.

17. In the circumstances appearing in the case, it

would be the travesty of justice, if the appellant is

denied his legitimate claim of gratuity despite

rendering “continuous service” for a period of 25

years which even, according to the State, were

regularized. The question as to from which date

such services were regularized was of no

significance for calculating the total length of service

for claiming gratuity amount once the services were

regularized by the State.

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18. It was indeed the State who took 22 years to

regularize the service of the appellant and went on

taking work from the appellant on payment of a

meager salary of Rs.2776/- per month for 22 long

years uninterruptedly and only in the last three

years, the State started paying a salary of

Rs.11,107/- per month to the appellant. Having

regularized the services of the appellant, the State

had no justifiable reason to deny the benefit of

gratuity to the appellant which was his statutory

right under the Act. It being a welfare legislation

meant for the benefit of the employees, who serve

their employer for a long time, it is the duty of the

State to voluntarily pay the gratuity amount to the

appellant rather than to force the employee to

approach the Court to get his genuine claim.

19. In view of the foregoing discussion, we cannot

agree with the reasoning and the conclusion arrived

at by the High Court which is legally unsustainable.

10 It is really unfortunate that the genuine claim of the

appellant was being denied by the State at every

stage of the proceedings up to this Court and

dragged him in fruitless litigation for all these years.

20. Indeed, this reminds us of the apt observations

made by the Chief Justice M.C. Chagla (as he then

was) in the case of Firm Kaluram Sitaram vs. The

Dominion of India (AIR 1954 Bombay 50). The

learned Chief Justice in his distinctive style of

writing while deciding the case between an

individual citizen and the State made the following

pertinent observations:

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

21. These observations apply in full force against

the State in this case because just case of the

appellant was being opposed by the State on

11 technical grounds. As a consequence, the appeal

succeeds and is allowed. Impugned judgment/order

passed by the High Court (Single Judge and

Division Bench) are set aside and the orders of the

Controlling Authority and Appellate Authority are

restored with cost of Rs.25,000/- payable by the

State to the appellant. Cost to be paid by the State

along with the payment of gratuity amount.

22. The respondent-State is directed to

release/pay the gratuity amount as determined by

the Controlling Authority within three months to the

appellant.

………...................................J. [R. K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi;

March 23, 2018

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