A HISTORICAL, LANDMARK JUDGMENT

 

GDS are covered under Gratuity ACT, 1972

 

The Widow of a deceased GDS official namely Sri Ram Murti has recorded a great victory in the Court of law, which has a significant, and far reaching positive impact on the question of payment of Gratuity to the entirety of Gramin Dak Sevaks in the Department of Posts. It is more or less identical to 1977 Rajammas case as if the ED employees are holders of civil post.

 

On the death of her husband who was working as a GDS   in Hoshiarpur Division in Punjab Circle, Smt.Sham Dulari filed a case before the Controlling Authority appointed under the Payment of Gratuity Act, 1972 claimed a sum of Rs.57,692/- as gratuity for the period of service rendered by her husband (18 years 9 months and 25 days), which was far greater than the amount being paid to the GDS by the Department of Posts at present under the Gramin Dak Sewak (Conduct and Employment) Rules, 2001.

 

The Department negated the claim that the GDS are covered by the EDA Rules 1964, which are now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001 that regulate the payment of gratuity to them and, the Gratuity Act 1972 would not be applicable to them. Under the above Rules the retired GDS official has already been paid the gratuity amounting to Rs.16,520/- and as such no further gratuity is payable as the provisions of the Gratuity Act which do not apply to the instant case.

 

The Controlling Authority cum Asst. Labour commissioner (C) Chandigarh rejected the argument of the Department of Posts and ordered payment of another Rs.12,286/- with interest @ 10% w.e.f. 25.12.2001to the widow over and above the gratuity amount paid to her by the Department of Posts.

 

The Department of Posts appealed against the order to the Appellate Authority of Gratuity Act. The Appellate Authority cum Regional Labour commissioner also held and confirmed the decision of the earlier orders with the following:

 

 

Order

In view of the above findings, this Appellate Authority after affording the opportunities to the parties hereby confirmed the decision dated 21.8.2003 of the ld. Controlling Authority-cum-Asstt. Labour Commissioner (C) Chandigarh."

 

Mr M.S.Guglani, learned counsel for the petitioner has submitted that an employee has been defined in Section 2(e) of the Gratuity Act and it does not cover any such person who is governed by some other rules of the department. According to the learned counsel, the EDA Rules 1964 which are now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001 regulate the payment of gratuity to the workman and, the Gratuity Act would not be applicable. Accordingly, gratuity has to be paid to them in accordance with the EDA Rules. Therefore, the view taken by the Controlling Authority or the Appellate Authority accepting the workman respondent as an employee under the Act is absolutely incorrect. Learned counsel has further submitted that under the EDA Rules, the workman respondent has already been paid the gratuity amounting to Rs.16,520/- and no further gratuity is payable as the provisions of the Gratuity Act do not apply to the instant case.

 

We have thoughtfully considered the submissions made by learned counsel for the petitioner- department and regret our inability to accept the same because the definition of expression 'employee' in Section 2 (e) has to be read with Section 5 and 14 of the Gratuity Act. The aforementioned provisions of Section 2 (e), 5 and 14 are extracted below for faclity of reference: -

 

"2 Definitions.- In this Act unless the context otherwise requires, (e)             "employee" means any person (other than an apprentice) employed on wages, (* * *) in any establishment, factory, mine, oilfield, plantation, port, railway, company or shop, to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, (and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.

 

5.         Power to exempt.- [(1)] The appropriate Government may, by notification, and subject to such conditions as may, be specified in the notification, exempt 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, the employees in such establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.]

(2) The appropriate Government may, by notification and subject to 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 nor less favourable than the benefits conferred under this Act.]

[(3)      A notification issued under sub section (1) or sub section (2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interest of any person.]

 

14.       Act to override other enactments, etc.- 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."

 

According to the definition of expression employee, any person who is employed on wages in any establishment, factory, mine etc., who may be performing the duty of a skilled, semi-skilled, or unskilled, supervisory, technical or duties of clerical nature, has been included in the expression' employee'. However, the expression 'employee' is not to /include a person who holds a post under the Central Government or State Government and is governed by any other Act or by any Rules providing for payment of gratuity. The respondent- workman is not governed by Central Civl Services (Classification, Control and Appeal) Rules, 1965, as has been expressly held by Hon'ble Supreme Court in para 3 of the judgment in Kameshwar Parshad's case (supra). It has further been held that the Extra Departmental Agent are entitled to the protection of Article 311 (2) of the Constitution and they are governed by separate set of Rules, namely, the EDA Rules. Therefore, it does not follow that the Extra Departmental Agent hold a post under the Central Government for the purposes of pension and gratuity. In other words, within the meaning of Section 2 (e) of the Gratuity Act, the respondent- workman cannot held to have held a post under the Central Government for the purposes of pension and gratuity. Para 3 and 4of the judgment is extracted below for the facility of reference:

 

"3.       The Extra Departmental Agents are government servants holding a civil post and are entitled to the protection of Article 311(2) of the Constitution (See: Supdt. of Post Offices v. P.K. Rajamma).They are governed by separate set of rules, viz., the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter referred to as "the Rules").The Central Civil Services (Classification, Control and Appeal) Rules are not applicable to this category of employees in view of the notification dated 28.1.1957 issued by the Government of India under Rule 3 (3) of the said Rules.

 

4.         In Rule 4 of the Rules it is provided that the employees shall not be entitled to any pension. . Rule 5 relates to leave. Rule 6 deals with the termination of services. Rule 7 prescribes nature of penalties that can be imposed. Rule 8 prescribes the procedure for imposing a penalty. Rule 8-A specifies the cases in which the provisions of Rule 8 would not be applicable."

 

We are further of the view that the scheme of the Gratuity Act indicates that it is not applicable to cases where any other rule or statute is more beneficial than the Gratuity Act. For the aforementioned proposition, reliance may be placed on a judgment of the Supreme Court in the case of E.I.D. Parry (I) Limited v. G. Onkar Murthy, (2001) 4 SCC 68. The converse would also be true that in cases where the Gratuity Act is more beneficial than the Rules, Regulations or any statute then the Gratuity Act would apply. It is evident that Section 5 of the Gratuity Act expressly requires an order of exemption in favour of any organistion exempting it from the operation of the Gratuity Act in respect of any establishment etc. to which this Act applies. Section 5 further lays down that the declaration is given in cases where the gratuity or pensionary benefits are not less favourable then the benefits conferred under this Act. A perusal of Section 14 makes it obvious that the provisions of the Act and the Rules framed there under ought to have the effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. This non-obstante clause also excludes the application of any other rules. The aforementioned view is fully supported by a judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. Dharam Parkash Sharma and other, (1998) 7 SCC 221. The short question which was considered by their lordships was, whether an employee of the Municipal Corporation, Delhi was entitled to payment of gratuity under the Gratuity Act when the Corporation itself had adopted the provisions of Central Civil Service (Pension) Rules, 1972, which provide both for payment of pension as well as of gratuity. The Hon'ble Supreme Court rejected the argument of the Corporation, namely, that when the Central Civil Service (Pension) Rules, 1972, provide a package by itself, which has been applied to the employees of the Corporation then the provisions of Gratuity Act were not applicable and      held as under: -

 

"We have examined carefully the provisions of the Pension Rules as well as the provisions of the Payment of Gratuity Act. The Payment of Gratuity Act being a special provision for payment of gratuity, unless there is any provision therein which excludes its applicability to an employee who is otherwise governed by the provisions of the Pension Rules, it is not possible for us to hold that the respondent is not entitled to the gratuity under the Payment of Gratuity Act. The only provision which was pointed out is the definition of "employee" in Section 2(e) which excludes the employees of the Central Government and State Governments receiving pension and gratuity under the Pension Rules but not an employee of the MCD. The MCD employee, therefore, would be entitled to the payment of gratuity provided for under the Payment of Gratuity Act. The mere fact that the gratuity is provided for under the Pension Rules will not disentitle him to get the payment of gratuity under the Payment of Gratuity Act. In view of the overriding provisions contained in Section 14 of the Payment of Gratuity Act, the provision for gratuity under the Pension Rules will have no effect. Possibly for this reason, Section 5 of the Payment of Gratuity Act has conferred authority on the appropriate Government to exempt any establishment from the operation of the provisions of the Act, if in its opinion the employees of such establishment are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act. Admittedly, MCD has not taken any steps to invoke the power of the Central Government under Section 5 of the Payment of Gratuity Act. In the aforesaid premises, we are of the considered opinion that the employees of the MCD would be entitled to the payment of gratuity under the Payment of Gratuity Act notwithstanding the fact that the provisions of the Pension Rules have been made applicable to them for the purpose of determining the pension. Needless to mention that the employees cannot claim gratuity available under the Pension Rules."

           

The aforementioned observation in fact squarely apply to the facts of the present case. There is no declaration under Section 5 exempting the application of the Gratuity Act to Extra Departmental Agents. Moreover, the EDA Rules, are not more beneficial than the benefits which are available to the respondent- workman under the Gratuity Act. Such a declaration could not have been given by the competent authority exempting the Extra Departmental Agents from the operation of the provisions of the Gratuity Act. Therefore, on principle as well as on precedents, we have reached the conclusion that the view taken by the Controlling Authority as well as Appellate Authority are not open to any attack in law and it does not furnish any opportunity to interfere with the same. Therefore, we are inclined to uphold the order dated August 21, 2003 (P-3) passed by the Controlling Authority and the order dated January 5, 2006 (P-6) passed by the Appellate Authority.

 

The argument of the learned counsel that the respondent workman is not covered by the definition of expression 'employee' as used in Section 2 (e) of the Gratuity Act does not require any detailed consideration because of the view expressed by the Hon'ble Supreme court in Dharam Parkash Sharma's case (supra). In that case also Central Civil Service (Pension) Rules, 1972 were adopted by the Municipal Corporation, yet the Hon'ble Supreme Court held that the Gratuity Act would apply in view of Section 5 read with Section 14 of the Gratuity Act. Therefore, we have no hesitation in rejecting the argument raised on behalf of the petitioner- department .

 

For the reasons aforementioned, this petition fails and the same is dismissed.

 

Accordingly, we direct that the respondent- workman be paid her dues within a period of one month from today, failing which the annum from the date, the amount became due till the date of actual payment .

 

The office is directed to send a copy of 'this order to the respondent- workman for information and further necessary action.

 

 

The Department subsequently went on SLP in the Supreme Court as usual. The Honorable Supreme Court also dismissed the SLP on 7.12.2007.

 

Therefore the Government now has no other alternate except to pay the gratuity to the widow of the deceased GDS as per the Gratuity Act, 1972, which states that Gratuity is a lump sum payment made by the employer as a mark of recognition of the service rendered by the employee when he retires or leaves service. According to this Act the Gratuity is payable @ 15 days wages for every year of completed service or part thereof in excess of six months. In case of seasonal establishment, gratuity is payable @ 7 days wages for each season. Wages will include basic and D.A. The daily wages in respect of piece rated employees are to be computed on the average of the total wages received by an employee for a period of three months. The maximum amount of Gratuity payable is Rs. 3.5 lakhs.

 

This is a landmark Judgment and the three lakhs of Gramin Dak Sevaks stand benefited immensely.

 

The NFPE has immediately taken it up with the Government of India by writing to the Honourable Prime Minister of India for immediate extension of the benefit of the Judgment to all Gramin Dak Sevaks without any delay by making necessary changes in the Rules, since the retiring GDS every day shall not be losing the benefit.

 

Let us sincerely ensure all efforts to make the judgment applicable to all the GDS officials.