Mcd v. Desh Raj

SIDDHARTHIVIRIDUL,J. ^ September19, 2008 j 3 ^ Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) 3837of 2008 • Date of Decision: 19^'' September, 2008 MUNICIPAL CORPORATION OF DELHI Petitioner ^ Through: Ms. Saroj Bidawat,Adv. versus PARTAP SINGH Respondent Through: None Writ Petition (Civil) 3838 of 2008 MUNICIPAL CORPORATiaN OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus MURLIDHAR .....Respondent through: None Writ Petition (Civil) 3840 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus BALBIR SINGH Respondent Through: None . •p Writ Petition (Civil) 3841 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus V. . . VISHNU DAYAL Respondent Through: None Writ Petition (Civil) 3842 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus WP(C)3811 of2008 Page1 of11 FATEH SINGH Respondent Through: None Writ Petition (Civil) 3843 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv'. versus MAHINDER SINGH Respondent Through: None Writ Petition (Civil) 3844 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus DAYANAND Respondent Through: None Writ Petition (Civil) 3845 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus. MISHRI DEVI Respondent Through: None Writ Petition (Civil) 3846 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus BADLU RAM Respondent Through: None Writ Petition (Civil) 3847 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner WP(C) 38'3^ of2008 Through: Ms. Saroj Bidawat, Adv. versus CHIRANJI LAL Respondent Through: None with • ' Writ Petition (Civil) 3848 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms, Saroj Bidawat, Adv. versus DULEY RAM Respondent Through: None , Writ Petition (Civil) 3849 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus HUKAM CHAND Respondent • Through: None Writ Petition (Civil) 4014 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. < ' versus DESH RAJ Respondent Through: None • with Writ Petition (Civil) 4185 of 2008 MUNICIPAL CORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus HEERA LAL Respondent Through: None WP(C) 38^-] of2008 Page 3 of11 i % CORAM: HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

¶1Whether reporters of local papers may be allowed to see the judgment?

¶2To be referred to the Reporter or not?

¶3Whether the judgment should be reported in the Digest? JUDGMENT SIDDHARTH MRIDUL, /. (Oral)

¶1These fourteen petitions are filed on behalf of Municipal Corporation of Delhi(Corporation) assailing the order passed-, by the •Appellate Authority under the Payment of Gratuity Act, ^972 (Act). Since the fourteen petitions raise a, common question of law in respect of applicability of the Act to the employees of the Corporation, I propose to dispose the petitions by this common judgment. p

¶2Counsel appearing on behalf of the corporation, firstly asserted that in similar matters notices have been issued and the next date of hearing in those similar matters is 22"" October, 2008. It was further . urged that the present petitions be listed and heard those petitions. However, in view of the fact that this issue is no. longer res Integra in terms of decision of Supreme Court as well as of this Court cited hereinbelow, 1am proceeding to dispose of these petitions at this stage.

¶3The short question that arises for consideration requires a narration of brief facts which are adumbrated as follows:- WP(CJ 3837 of2008 Page 4 of11 r '

(i) The respondent/employee in each of these petitions is a retired employee of the Corporation. Each of them received retirement benefits including gratuity payable in terms of CCS Pension Rules 1972 (Pension Rules) adopted by the Corporation.

(ii) Each of them filed an application before the Controlling Authority (C.A.) under the Act claiming additional amount of gratuity that was payable in terms of the Act.

(iii) By separate orders the C.A. held that provisions of the Act were to apply to employees of the Corporation regardless of the application of the Pension Rules till the time when the Central Government being appropriate Government has granted exemption under Section 5(2) of the Act to the Corporation.

(iv) By separate orders the CA. thereby computed the gratuity payable under the Act and directed the Corporation to pay each of the retired employee an additional amount of gratuity together with simple interest thereon at the rate of 10% per annum under the provisions of Section 7(3-A) of the Act for the period ^commencing from the, date of retirement.

(v)

(1) Sh. Partap Singh S/o Sh. Kundan Singh, respondent in Writ Petition (Civil) 3837/08 was directed to be paid a sum of Rs.18,159/- together with interest thereon @ 10% from 31=' October, 1999. WP(C) 38^J of2008 Page 5 of11 /•r~

(2) Sh. Murlidhar S/o Sh. Sohan Lai, respondent in Writ Petition(Civil) 3838/2008 was directed to be paid a sum of Rs.29,075/- together interest thereon rate of interest @ 10% per annum from 31^' October, 2000.

(3) Sh. Baibir Singh S/o Late Pyarelai, respondent in Writ Petition(Civil) 3840/2008 was directed to be paid a sum of Rs.13,61.6/- together interest thereon rate of interest @ 10%. per annum .from 30'''June, 2000.

(4) Sh. Vishnu Dayal S/o Sh. Gopal Dass, respondent in Writ Petition(Civil) 3841/2008 was directed to be paid a sum of Rs.31,810/- together interest thereon rate -of interest @ 10% per annum from 31''January, 2001.

(5) Sh. Fateh Singh S/o Sh. Chattar, respondent in Writ Petition(Civil) 3842/2008 Singh was directed to be paid a, sum of Rs.20,522/- together with interest thereon with rate of interest @ 10% per annum from 31^"^ iviarch, 2002.

(6) Sh. Mahander Singh S/o Sh. Jag Ram, respondent in Writ Petition(Civil) 3843/2008 was directed to pay a sum Rs.7,560/-. together, interest thereon rate of interest @ 10% per annum from 9'^'' November, 2004.

(7) Sh. Dayanand S/o Sh. Sher Singh, respondent in Writ Petition(Civil) 3844/2008 was directed to be paid a sum of Rs23,733/- together interest thereon rate of interest @ 10% per annum from jVjay, 2000. WP(CJ 38^7 of2008 Page 6 of11

(8) Smt. Mishri Devi W/o Sti. Clnattar Singli, respondent in Writ Petition(Civil) 3845/2008 was directed to be paid a sum of Rs. 8,601/- togettier with interest thereon with rate of interest

(5) 10% per annum from 30''" June, 98 till the date of actual payment of the same.

(9) Sh. Badlu Ram S/o Late Sh. Bansi Ram, respondent.in Writ Petition(Civil) 3846/2008 was directed Rs.14,962/- together with interest thereon with rate of interest

(a) 10% per annum from 31^'^January, 2005.

(10) Sh. Ghiranji Lai S/o Sh. Lai Chand, respondent in Writ Petition(Civil) 3847/2008 was directed to be paid a sum of Rs.39,946y-together interest thereon rate of interest @ 10% per annum from 30'^"June, 2001.

(11) Sh. Duleh Ram S/o Late Sh. Chet Ram, respondent in Writ Petition(Civil) 3848/2008 was directed to be paid a sum of Rs.22,008/- together with interest thereon with rate of interest @ 10% per annum from 31^^ August, 1999.

(12) Sh. Hukum Chand S/o Sh. Ganga Dutt, respondent in Writ Petition(Civil) 3849/2008 was directed to be paid a sum of Rs.37,988/- together with interest thereon with rate of interest @ 10% per annum from 31^' March, 2002.

(13) Sh. Des Raj S/o Late Sh. Lai Chand, respondent in Writ Petition(Civil) 4014/2008 was directed to be paid a sum of Rs.37,322/- together interest thereon rate of WP(C) 38^ 7 of2008 Page 7 of11 . interest

(g) 10% per annum from 31"' December, 2004 till the date of actual payment of the same.

(14) Sh. Heera Lai S/o Sh. Badri Nath, respondent in Writ Petition(Civil) 4185/2008 was directed to be paid a sum of Rs.39,025/- together interest thereon rate of interest

(g) 10% per annum from 31'' December, 2000.

(vi) Corporation filed an appeal against the order of CA before the Appellate Authority. The appeals filed by the Corporation before the Appellate Authority were dismissed vide a separate order which are subject matter of challenge in these fourteen writ petitions.

¶4It is an admitted position that the relevant notification under the Act was issued by the appropriate Authority subsequent to the retirement of each of the respondents in these Writ Petitions. It is fairly conceded by counsel appearing on behalf of the Corporation that the said notification could operate only prospectively and not ^^retrospectively. It is submitted, however, that notification was applicable as on the date of consideration of the applications filed by the respondents. In other words, since the notification was in force on the date when the C.A., determined the applications on the respondents those applications were not maintainable at all. Counsel submits that on the date of notification C.A. was functus officio and could not entertain applications under the Act. I am unable to accept this submission of the Corporation. WP(C) 38^? of2008 Page 8 ot 11

¶51 am unable to accept the submissions of the counsel for the Corporation. It is apparent that till the date of the subject notification namely 27!"^ July, 2005, the Corporation was statutorily obliged to comply with the obligations under the Act. It is seen, that this question has been determined against the Corporation by the decisi.on of the Supreme Court in Municipal Corporation of Delhi vs. Dharam Prakash and Ors; (1998) 7SCC 221. In that case the question that arose for consideration was whether an employee of the Corporation would be entitled to payment of gratuity under the Act when the Corporation itself adopted-the Pension Rules, particularly when the latter contains provision for payment of pension as well as gratuity. The supreme Court held that: "The Act was a special provision for payment of gratuity." and "Unless there is any provision therein which excludes it applicability to an employee who is otherwise governed by the provisions of the Pensioh Rules, it is not possible for us to hold that the respondent is not entitled to the gratuity under the Payment of Gratuity Act." ^ It was categorically held that: "The MCD employee, therefore, would be entitled to ^ the payment of gratuity 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."

¶6The above decision of the Supreme Court has been followed by this Court jn Writ Petition (Civil) No'.. 9318 of 2007, Writ Petition (Civil) No. 6280 of 2008, Writ Petition (Civil) No. 6282 of 2008, .Writ Petition (Civil) No. 6284 pf 2008 and Writ Petition (Civil) No.6288 of 2008. Thus, there can be no manner of doubt that employees of the Corporation WP(CJ 3837 of2008 PacreDofll who retired till the date when the notification came into force would be entitled to be paid gratuity in terms of the Act. However, since they would not be entitled to derive a double benefit they would be entitled to receive only the differential amount between the gratuity calculated under the Act and that paid to them pursuant to the Pension Rules.

¶7It is also observed that the pronouncement of law by this Court in . Municipal Corporation of Delhi vs. Nand Kishore: 2003(102) DLT 518, is to the effect that "the denial of the payment of the gratuity under the Act is a continuing wrong and there is no question of any delay in approaching the Controlling Authority and the claim of gratuity cannot be resisted on the ground of delay". Therefore, it is axiomatic that it was not necessary for the employee to make an application, for the purpose since the denial of the payment of gratuity under the Act is a continuing wrong and the Corporation was statutorily bound to do so on its own. Resultantly, there is no question of any delay in approaching the CA and the claim of gratuity cannot be declined only on that account. In the circumstances, it is not open to the Corporation V to deprive any of its employee who retired before the issuance of the subject notification of the payment of gratuity under the Act. Also it was neither necessary for the employee to seek condonation of delay, if any, which they did, nor' requisite for the CA or the Appellate Authority to condone the delay, which was done, since the non-receipt of gratuity was a continuing wrong, grant of which could not be precluded only on the question of delay.

¶8Finally the submission on behalf of the Corporation that the CA was functus officio on the date of consideration of the applications, WP(C) 38-^y of2008 Page 10 of11 '\4 does not hold water, for the reason that the notificationissued by the appropriate Government exempting them from the operation of the Act was subsequent to the. retirement of the respondent-employees, and no such notification can have retrospective operation, so as to, extinguishsubstantial rights already vested in the employees by virtue of the operation of provisions of law. No other point was raised on behalf of the Corporation.

¶9In the facts and circunistances no infirmity is discerned in the impugnedorders, insofaras, they directedpaymentof balancegratuity under the provisions of the Act. Therefore, I find no merit in any of these petitions and they are consequently dismissed, however, without any order as to costs. /// SlDDIjlARTH

MRIDUL, J. September 19, 2008 j WP(C) 3837 of2008 Page 11 of11

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Writ Petition (Civil) 4014 of 2008 Date of Decision: 19^^ September. 2008 jVIUNICiPALCORPORATION OF DELHI Petitioner Through: Ms. Saroj Bidawat, Adv. versus DESH RAJ Respondent Through: None % CORAIM: HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? J U D G |V| E N T SIDDHARTH MRIDUL. /. (Oral) 1. The Writ petition is dismissed. For detailed orders see Writ petition(Civil)3837/2008. ^