- (1.) (Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus calling for the records relating to the order of the 3rd Respondent in P.G. Case No.15 of 1999 dated 11.02.2000 and the order of the 2nd Respondent in P.G.A.No.3/2000 dated 27.10.2000, quash the same and consequently direct the first Respondent to pay the balance of Gratuity of Rs.4,558/- along with interest at the rate of 15% p.a. from the date it became payable.) The Petitioner seeks for the issuance of Writ of Certiorarified Mandamus to quash the order of the third Respondent made in P.G. Case No.15 of 1999 dated 11.02.2000 and to direct the first Respondent Management to pay the balance of Gratuity of Rs.4,558 along with interest.
(2.) TWO points that arise for consideration in the Writ Petition are:- "Whether under the Payment of Gratuity Act, the Petitioner is entitled to claim gratuity on the basis of revised rate of wages last drawn by him for the month of July 1998, during which he retired? and "Whether the Management has unilaterally declared one year break-in-service? Background facts in a nutshell - The first Respondent is a manufacturer of steel forgings and stampings. The Petitioner joined the services of the first Respondent and attained superannuation on 09.07.1998. Taking into account the salary for the month of June 1998 [Rs.3,958.78], the Petitioner was paid Rs.70,802/- towards Gratuity. According to the Petitioner, his last drawn wages for the month of July, 1998 was at the rate of Rs.4,082.04 [Basic Wages Rs.131.04 + Dearness Allowance Rs.3,951/-] and the Gratuity should have been calculated according to the salary which the Petitioner received during the month of July, 1998. Further case of the Petitioner is that even though he had put in 31 years and 7 months service, the management has taken only 31 years of service for computing the Gratuity. According to the Petitioner, he is entitled to the Gratuity of Rs.75,360.73, but he was paid only a sum of Rs.70,802/- and hence the management has to pay a balance of Rs.4,558.73. The management resisted the claim of the employee stating that his services was interrupted by the illegal strike. According to the first Respondent, the last drawn wages for the month of June, 1998 i.e. Rs.3,958.78/- is the last drawn wages, which was taken as the basis for calculating Gratuity. The management has alleged that the Petitioner has participated in the illegal strike during 1983-84 and there was one year break in service. The Controlling Authority and the Appellate Authority, under Payment of Gratuity has dismissed the Petitioner's claim, inter-alia finding ::- "As per Section 4(2) of Payment of Gratuity Act, 1972, an employee is entitled to Gratuity at the rate of 15 days' wages last drawn, for each completed year of service and the Act does not say wages payable, but only wages last drawn. Since the payment has worked out for nine days in July 1998, his last drawn wages for the month of June 1998 was rightly taken for the calculation of the Gratuity amount "The Respondent Management has proved there was strike and there was break in service of one year due to the intervening strike "The employee has received the Gratuity amount as full and final settlement of his claims against the management and having received without any objection, the employee cannot at a later stage, dispute the calculations made by the Management. Assailing the impugned order, the learned Counsel for the Petitioner has submitted that the Payment of Gratuity Act being a beneficial legislation, the provisions are to be interpreted for the benefit of the employee. The learned Counsel further submitted that the rate of wages means one day's wage and not the wages of the last month and hence the management ought to have taken the wages payable for the month of July. The learned Counsel for the Petitioner urged that for the alleged period of strike, no notice was served upon the Petitioner and the Management arbitrarily said there was break in service and when the factum of illegal strike has not been established, the authorities have committed error of law in not considering the same. In support of his contention, the learned Counsel for the Petitioner has relied upon a number of decisions. Placing reliance upon 2002 [4] LLN 363, [Krishnaveni Textile Mills Vs. Asst. Commissioner [Central] & Others], the learned Counsel for the Petitioner submitted that no materials are placed for proving that the strike had been treated as break in service.
(3.) COUNTERING the arguments, the learned Counsel for the Respondent Management has submitted that the Management has rightly taken the salary of June month as wages last drawn and the provisions of the Act cannot be technically interpreted, causing violence to the provisions. Placing reliance upon Vol.103 FJR Page 71 [Executive Engineer and others Vs. Lokesh Reddy and others] the learned Counsel has submitted that merely because the Act is a beneficial legislation, interpretation cannot be stretched to the extent of causing violence to the provisions. Drawing the attention of the court to the Memorandum of Settlement, the learned Counsel for the Management has submitted that the employee having participated in the strike and when the employee has not worked for 240 days, there was break in service of one year and the Gratuity has been rightly calculated at the completed years of service i.e. 31 years. Further drawing the attention of the court to the details of the calculation of Gratuity for the other retired employees, the learned Counsel for the Management has urged that for all the employees, Gratuity was paid only on the basis of the wages last drawn and not the wages payable on the month of retirement. It was further submitted that if the Petitioner's claim is to be allowed, there would be spate of applications from the other employees and the settled claims would be reopened. In-re Point 1:- The Petitioner attained superannuation on 09.07.1998. Gratuity was paid to him on the basis of last drawn wages for the month of June, 1998 i.e. Rs.3,958.78. Onbehalf of the Petitioner, it was urged that the words "fifteen days' wages", "which are paid", "or payable to him", are clear and unambiguous and mean only the wages payable for the month in which the employee superannuated i.e. July, 1998. It was further submitted that Gratuity is calculated on the daily wages and the Gratuity amount payable is calculated on 15 days' wages for every completed year of service. The learned Counsel for the Petitioner made forcible submissions contending that in Social Welfare Legislation, the Court should adopt a beneficial rule of construction and if a section is capable of two constructions, that construction should be preferred for the benefit of the workman, which would fulfill the policy of the Act. In support of his contention, the learned Counsel placed reliance upon 1980 [2] LLJ SC 252 [Sri Digvijay Woollen Mills Ltd. And another Vs. The Maharashtra Mills Ltd.] and 1984 [2] LLJ 464 [Jeewanlal Ltd., Etc. Vs. Appellate Authority, Payment of Gratuity Act & Others]. In Digvijay Woollen Mills case, the Supreme Court considered the mode of calculation of Gratuity and observed that although a month is understood to consist of thirty days, the Gratuity payable under the Act during the monthly wages, as wages for 26 days worked, is not new or unknown and confirmed the Judgment of the Gujarat High Court. In Jeevan Lal's case also, the Supreme Court had dealt with the calculation of payment of Gratuity at the rate of fifteen days' wages for one completed year of service. Referring to Digvijay's case, the Supreme Court has held ::- "The intention of the Legislature in enacting Sub-s.[2] of S.4 of the Act was not only to achieve uniformity and a reasonable degree of certainty, but also to create and bring into force a self contained, all-embracing, complete and comprehensive code relating to gratuity as a compulsory retiral benefit. The quantum of gratuity payable under Sub-s[2] of S.4 of the Act has to be fifteen days' wages based on the rate of wages last drawn by the employee concerned for every completed year of service or more in excess of six months, subject to a maximum of 20 months' wages as provided by Sub-S.[3] thereof. The whole object is to ensure that the employee concerned must be paid gratuity at the rate of fifteen days' wages for 365 days in a year of service. The total amount of gratuity payable to such employee at that rate has to be multiplied by the number of years of his service subject to the ceiling imposed by Sub-s.[3] of S.4 of the Act viz., that such amount shall not exceed 20 months' wages." Both the decisions deal with treating the monthly wages as wages for 26 working days and not laid down any principle regarding the payment of Gratuity on the basis of the wages drawn on the month of superannuation. Gratuity is payable to an employee at the rate of 15 days' wages, which the employee has last drawn for every completed year of service. The language employed in Section 4(2) is clear and unambiguous that the Gratuity is payable to an employee at the rate of 15 days' wages based on the rate of wages last drawn by the employee concerned. ;