Shri. Prasanta Kumar Gouda v. The State of Nagaland and 2 Ors

ORDER Date : 25.06.2024

This order will dispose of all the 3 writ petitions since the issues involved are similar and identical.

¶2Heard Mr. Moa Jamir, learned counsel for the peti-tioners and Mr. E. Thiba Phom, learned State counsel for all the respondents.

¶3All the 3 writ petitioners were appointed as Work Charge Labour vide order dated 28.4.1983 w.e.f. 2.5.1983. The petitioner after working for some time were regularized in ser-vice. The petitioner in W.P.(C) 124/2022 was regularized as Chowkidar vide order dated 5.8.2004, the petitioners in W.P.(C) Page No.# 4/8 125/2022 and W.P.(C) 126/2022 were both regularized as Mali vide order dated 22.7.2010. The petitioners after having com-pleted 35 years of service retired on superannuation vide order dated 28.6.2021. In the said order, it was also reflected that the petitioners had over-stayed in their service for a period of 34 months. Upon submitting an application, the period of their over-stay in service was condoned by the respondent No.3 and the pay drawn during the over stay period was treated as hono-rarium.

¶4It is the case of the petitioners that upon their super-annuation from service they were given gratuity by counting their service only from the date of their regularization i.e

5.8.2004 in respect of the petitioner in W.P.(C)124/2022 and

22.7.2010 in respect of the petitioners in W.P.(C) 125/2022 and W.P.(C) 126/2022. According to the petitioners, they are entitled to be given gratuity by reckoning their service with effect from the date their initial appointment and there also being no break in their service.

¶5Mr. Moa Jamir, learned counsel for the petitioners by relying upon the case of Netram Sahu vs State of Chhattisgarh and Another reported in (2018) 5 SCC 430 submits that the Apex Page No.# 5/8 Court in the facts of that case held that the appellant therein was entitled to get gratuity from the date of initial appointment till the date of superannuation. He submits that the petitioners in the present case are similarly situated and therefore the same covers the case of the present petitioners as well. He thus, sub-mits that the writ petition may be allowed as prayed for by the petitioners.

¶6Mr. Thiba Phom, learned State counsel on the other hand by referring to the affidavit-in-opposition filed by the re-spondent No.3 on 4.5.2023 submits that the petitioners upon at-taining the age of superannuation were granted one time gratu-ity and therefore they are not entitled to any further gratuity as claimed by them. He submits that the Development Authority Nagaland is an autonomous body and therefore, unlike the case referred to by the learned counsel for the petitioners wherein the employers was the State Government, the case of the present petitioners are not similar and accordingly, they are not entitled to any more gratuity apart from the one time already paid to them.

¶7To this submission Mr. Moa Jamir, learned counsel draws the attention of the provision of Payment of Gratuity Act, Page No.# 6/8 1972 ( the Act) and submits that the Act applies to every factory, mine, oilfield, plantation, port and railway company, and also ev-ery shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. He submits that the Act also encompasses the service rendered by the petitioners under the respondent No.3 as well and therefore, the petitioners are clearly entitled to be given gratuity by counting their service w.e.f the initial date of their appointment.

¶8I have considered the submissions made by the learned counsel for the parties and I have perused the materials available on record.

¶9The facts narrated by the petitioner broadly are not disputed by the respondents. The only dispute raised is with re-gard to the claim for gratuity counting from the date of the initial appointment as Wrok Charge Labour. The Apex Court in the case of Netram Sahu (supra) in the given facts of that case held that the appellant had actually rendered service for about 25 years and that his initial appointment as Daily Wager was regularized by appointing him to the post of Pump Operator. The appellant Page No.# 7/8 having continuous and uninterupted service till he attained the age of superannuation, the respondent authorities cannot de-prive him of the benefit of gratuity from the date of his initial ap-pointment by restricting the same only from the date of his reg-ularization which was for about 3 years only. Further, the Apex Court also held that no provisions under the Act was brought to the notice of the Court which disentitled the appellant from claiming gratuity nor was any provision brought to the notice of the Court which prohibits the appellant from taking benefit of his long and continuous period of 22 orders of service which he had rendered prior to his regularization for calculating his continuous service of 5 years. Similarly in the instant case, there is no dis-pute to the fact that the petitioners who were initially appointed w.e.f 02.05.1983 and thereafter regularized w.e.f.05.08.2004 and 22.07.2010 are debarred from claiming continuity in service or from claiming gratuity under any provision of law.

¶10Under the circumstances, this Court is of the view that the ratio laid down in the case in Netram Saha (supra) is squarely applicable to the present cases as well. Accordingly, the respondents are directed to work out the gratuity payable to the petitioners w.e.f initial appointment up till their regularization Page No.# 8/8 within a period of 6(six) weeks from the date of receipt of certi-fied copy of this order. Thereafter, amount worked out and payable to each of the petitioners, be paid to them within a pe-riod of 2(two) months.

¶11With the above observation and directions, the writ petitions stands disposed of. No cost.

Sd/- JUDGE Comparing Assistant

Page No.# 1/8 GAHC020003322022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/125/2022 SHRI. SANTOSH SETHI AGED ABOUT 57 YEARS, S/O KHETRA SETHI, R/O SUPER MARKET, DIMAPUR, NAGALAND VERSUS THE STATE OF NAGALAND AND 2 ORS THROUGH THE CHIEF SECRETARY TO THE GOVEVERNMENT OF NAGALAND, NAGALAND, KOHIMA 2:THE FINANCE COMMISSIONER FINANCE DEPARTMENT NAGALAND KOHIMA 3:THE SECRETARY DEVELOPMENT AUTHORITY NAGALAND DIMAPU Advocate for the Petitioner : M WABANG Advocate for the Respondent : GOVT ADV NL Linked Case : WP(C)/124/2022 SHRI. PRASANTA KUMAR GOUDA AGED ABOUT 56 YEARS Page No.# 2/8 S/O BACHHA GOUDA R/O SUPER MARKET DIMAPUR NAGALAND VERSUS THE STATE OF NAGALAND AND 2 ORS THROUGH THE CHIEF SECRETARY TO THE GOVERNMENT OF NAGALAND NAGALAND KOHIMA 2:THE FINANCE COMMISSIONER FINANCE DEPARTMENT NAGALAND KOHIMA 3:THE SECRETARY DEVELOPMENT AUTHORITY NAGALAND DIMAPUR ------------ Advocate for : M WABANG Advocate for : GOVT ADV NL appearing for THE STATE OF NAGALAND AND 2 ORS Linked Case : WP(C)/126/2022 SHRI. PRAFULLA SETHI AGED ABOUT 49 YEARS S/O KIRTAN SETHI R/O UNITED COLONY DIMAPUR NAGALAND VERSUS THE STATE OF NAGALAND AND 2 ORS THORUGH THE CHIEF SECRETARY TO THE GOVERNMENT OF NAGALAND NAGALAND Page No.# 3/8 KOHIMA 2:THE FINANCE COMMISSIONER FINANCE DEPARTMENT NAGALAND KOHIMA 3:THE SECRETARY DEVELOPMENT AUTHORITY NAGALAND KOHIMA ------------ Advocate for : M WABANG Advocate for : GOVT ADV NL appearing for THE STATE OF NAGALAND AND 2 ORS BEFORE HON'BLE MR. JUSTICE NELSON SAILO