- (1.) As the similar questions of law and facts are involved in the aforesaid writ petitions, therefore, they are being decided together.
(2.) By means of the present Writ Petition (27256 of 1996) the petitioner, has approached this Court for issuing a writ of mandamus directing the respondent-Bank to pay to the petitioner's gratuity calculated at the rate of one month wages (inclusive of dearness allowance) per year of the service and also interest at the rate of 18% on the ground of delay in the payment of the total money due to the petitioner.
(3.) The controversy involved in the present writ petition is that whether payment of gratuity on the retirement of the petitioner was payable at the rate of one month wages per year service or it was payable at the rate of 15 days wages per year of service as provided in the Payment of Gratuity Act, 1972. It may be stated that the State Government in exercise of its powers under Section 4-K of the Industrial Disputes Act, 1947 (hereinafter referred to as the U.P. Act), had referred the matter for adjudication to the Industrial Tribunal at Allahabad, relating to the conditions of service of the employees of the various Co-operative Banks spread over in almost all the districts of Uttar Pradesh. The aforesaid dispute was decided by the Presiding Officer of the Industrial Tribunal and his award is commonly known as Joshi Award. It may also be stated that some of the Co-operative Banks entered into an agreement either with the U.P. Bank Employees Union, which had sponsored the dispute on behalf of the employees of the Banks or with the workmen strength in the banks. It may be stated that respondent-Bank had passed a resolution in respect of demands of workmen, who had been referred for adjudication. The resolution dealing with the question of gratuity and certain other matters has been filed as Annexure-1 to the writ petition. The question of payment of gratuity has been dealt with at Issue No.7 and it has been provided that the employees would be paid gratuity at the rate of one month wages inclusive of dearness allowance on the retirement and such gratuity will be payable only to the employees, who have completed 15 years of service in the employment of the Bank. On the basis of the aforesaid resolution an agreement was reached with the workmen employed in the Bank on October 12, 1966, the agreement has been signed by 40 employees and an officer of the respondents'-Bank. A copy of the same has been filed as Annexure-2 to the writ petition. Petitioner submits that the petitioner reached the age of retirement on December 31, 1995 and as such gratuity became payable to him on the basis of the aforesaid agreement and the bank's resolution. On May 15, 1996, the respondent-Bank addressed a letter to the petitioner. A copy of the same has been filed as Annexure-3 to the writ petition. A perusal of the aforesaid letter clearly goes to show that the amount payable as gratuity was calculated at Rs.99,750.00 and after making various deductions a sum of Rs. 61,243.51 was paid to the petitioner. It may be stated that this collection of the amount payable as gratuity was not made in terms of agreement and the bank's resolution and instead it was calculated at the rate of 15 days' wages per year of service. Petitioner addressed a letter dated June 5, 1996 in which the petitioner made the grievance that the details of the amount have not been mentioned and, therefore, the details may be supplied to the petitioner. It has further been protested that gratuity should have been calculated at the rate of one month wages per year of service. The Bank has notified letter dated May 15, 1996 in which it has been stated that the amount of Rs.38,506.49 has been credited to his account with the Bank. The petitioner protested to the effect that the petitioner has not been paid gratuity calculated at the rate at which it was to be paid in accordance with the resolution of the Bank and the agreement with the workmen. Although the respondent-Bank had entered into an agreement on the basis of its resolution that the amount of gratuity will be payable at the rate of one month wages, inclusive of dearness allowance to the workmen. This practice of the respondents is unfair labour practice of making payment of gratuity amount only at the rate of 15 days wages per year of service. The matter was attached with the trade union of the employees of the Bank. The Bank decided to negotiate the matter and sent a letter on November 1, 1996, a true copy of the same has been filed as Annexure-10 to the writ petition. However, nothing happened in the meeting, which was to be held on January 27, 1996 in pursuance of the Bank's letter dated November 1, 1996. The Trade Union of the employees of the Bank again sent a letter dated January 27, 1996. The petitioner himself has sent various letters to the respondents. It has further been stated that an agreement with the Bank was reached in the year 1966. It was only when an industrial dispute in respect of the conditions of service had been referred for adjudication of the Industrial Tribunal, Allahabad. The settlement with the employees became a part of the award of the Industrial Tribunal. The payment of gratuity was enacted in the year 1972 and Section 4 makes the provision for Payment of Gratuity. Sub-section (2) of Section 4 provides that for every completed year of service or part thereof in excess of six months the employer would pay gratuity to an employee at the rate of 15 days wages based on the rate of wages last drawn by the employee concerned. However, Section 4 of the Payment of Gratuity Act, 1972 is being reproduced below: "4. Payment of Gratuity.- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, - (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of the five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: (Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominee or heir is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.) Explanation.- For the purposes of this Section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose the wages paid for any overtime work shall not be taken into account: Provided further that in the case of (an employee who is employed in a seasonal establishment and who is not so employed throughout the year), the employer shall pay the gratuity at the rate of seven days wages for such season. (Explanation. - In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty six multiplying the quotient by fifteen). (3) The amount of gratuity payable to an employee shall not exceed (three lakhs and fifty thousand) rupees. (4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the, wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced. (5) Nothing in this Section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. (6) Notwithstanding anything contained in sub-section (1), - (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee (may be wholly or partially forfeited)- (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.";