V.K.Mehrotra, J. - (1.) The short question which arises for determination in this petition under Article 226 of the Constitution is whether Uttam Chand, an employee of the petitioner who had attained the age of superannuation prior to Sept. 16, 1972 was entitled to claim gratuity under the provisions of the Payment of Gratuity Act, 1972 (Parliament Act No. 39 of 1972) (for brief, the Act). It arises in these circumstances: Uttam Chand, the third respondent in the petition, was employed with the petitioner-Mill as Boiler Attendant since April 1, 1929. He attained the age of 60 years on Mar. 31, 1972. He, however, continued to work with the petitioner till Mar. 31, 1974. At that time he was drawing a sum of Rs. 550/- per month. According to the third respondent, he was superannuated on Mar. 31, 1974. The case of the petitioner is that he superannuated in Mar., 1972 and at that time he was drawing a sum of Rs. 422.20 per month as wages. The case of the petitioner also is that through a notice dated Feb. 26, 1972, respondent 3 was informed that on reaching the age of superannuation, namely, 60 years, on Mar. 31, 1972, as per the Government Order dated 27-11-1970 enforcing the recommendations of the Second Wage Board for the sugar industry, he shall stand retired from service with effect from that date. Respondent 3 was also paid all amounts due to him including the amount of gratuity in terms of the gratuity scheme applicable to him under the recommendations of the Second Wage Board for Sugar Industries, 1970, enforced under S. 3, U. P. Industrial Disputes Act. While the petitioner was looking for a proper person to be appointed as Boiler Attendant in place of respondent 3, the latter was, at his request, reemployed with effect from Apr. 1, 1972 and his name was shown in "Temporary Pay Roll Register" which had been maintained for temporary employment. This fact was also acknowledged by respondent 3 through his letter on Aug. 3, 1972.
(2.) The case of respondent 3 is that he was not superannuated with effect from March 31, 1972 but continued to work with the petitioner and was actually retired with effect from Mar. 31, 1974. Since the petitioner had not paid to him the entire amount of gratuity due under the Act and had made part payment thereof, an application dated June 11, 1976 was made by respondent 3 to the Controlling Authority envisaged by the Act for the payment of the balance amount. The Controlling Authority, after giving opportunity to the petitioner to have its say directed it by its order dated Oct. 19, 1979 (annexure Rs.6' to the writ petition) to pay the balance amount of gratuity to respondent 3. This direction was upheld by the Appellate Authority, before which it had been assailed by the petitioner, by order dated Apr. 14, 1977. Both the authorities took the view that respondent 3 was retired with effect from Mar. 31, 1974. The notice sent by the petitioner to respondent 3 was treated by the Controlling Authority only as an intimation by the petitioner that respondent 3 would attain the age of 60 years on Mar. 31, 1972 and that he would, therefore, be retired with effect from that date and not as an actual order retiring him.
(3.) It is not in dispute that the age of superannuation for respondent 3 was 60 years. The petitioner said so in para 2 of the petition. Respondent 3 acknowledged it in para 1 (n) of his reply to the written statement of the petitioner in proceedings before the Controlling Authority. A copy of that reply is annexure Rs.5' to the writ petition. The assertion in para 1 (n) is that as defined in S. 2 (r) (i) of the Act, superannuation meant the attainment by the employee of such age as was fixed in the conditions of service on which the employee would vacate the employment and that under the conditions of service applicable in sugar factories that age was 60 years. There is also no dispute that respondent 3 attained the age of 60 years on Mar. 31, 1972.;