J.M. Tandon, J. - (1.) BAKHSHISH Singh, Respondent was born on December 17, 1913, and was employed by the Petitioner on March 2, 1968. He submitted" his resignation on November 9, 1978, with effect from December 10, 1978. His resignation was accepted. After his release from employment he claimed gratuity. The amount of gratuity offered by the Petitioner (being short) was not accepted by the Respondent with the result that he moved the Controlling Authority -under Section 7 of the Payment of Gratuity Act (hereafter the Act) for the, determination of the amount of gratuity due to him. The Controlling Authority, - -vide order dated October 18, 1979, computed the amount of gratuity payable to the -respondent at Rs. 1,782. The Petitioner filed an appeal against the order of the Controlling Authority (P.1) -which was dismissed by the appellate authority, - -vide order dated March 6, 1890 (P. 2) The Petitioner has assailed the orders P. 1 and P. 2 in the present writ petition. Section 1(4) of the Act reads: - It shall come into force on such date as the Central Government may, by notification, appoint. The appointed date in terms of Section 1 (4) of the Act is September 16, 1972. The Act, therefore, came into force on that date. The terms ' retirement and 'superannuation' are defined in Section 2(q) and (r) of the Act respectively. These two Sub -sections read: (q)'retirement' means termination of the service of an employee otherwise than on superannuation ; (r) 'superannuation', in relation to an employee means, - (i) the attainment by the employee of such age as is fixed in the contractor conditions of service as the age on the attainment of which the employee shall vacate the employment; and (ii) in any other case the attainment by the employee of the age of fifty -eight years Section 4 of the Act deals with the payment of gratuity. The relevant part of this Section reads : - 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 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
(2.) THE Learned Counsel for the Petitioner has argued that under the Scheme as also the provisions of the Act gratuity is payable to an employee up to the date of his superannuation if fixed in the contract or condition of service and in the alternative up to the age of 58 years. The argument proceeds that the Respondent had attained the age of 58 years before the Act came into force on September 16, 1972. The Respondent is, therefore, not entitled to any amount by way of gratuity. The contention is without merit. It is specifically provided under Section 4(l)(b) of the Act reproduced above that an employee shall be paid gratuity; on his retirement or resignation. Sub -clause (b) of Sub -section (1) is independent of Sub -section (a) thereof. It is, therefore, clear that an employee will be entitled to gratuity in terms of Sub -section (1) on his superannuation if he ceases to be an employee thereafter. Should the employee be appointed or continued in the employment after the date of his superannuation he will still be entitled to gratuity on his retirement or resignation when he would cease to be in the employment of the employer'. The Petitioner cannot disown the liability to pay the gratuity to the Respondent under the Act on the -ground that the latter had attained the age of 58 years before the Act come into force, The Learned Counsel for the Petitioner has contended that the gratuity is payable to an employee for the service rendered by him up to the age of his superannuation in terms of Section 2(r) of the Act. The argument proceeds that in the absence of any contract regarding, the age of superannuation in the instant case the Respondent shall be treated to have superannuated on attaining the age of 58 years. The Respondent at best can claim gratuity for the service rendered by him up to the age of his superannuation. This contention is also without merit. The age of superannuation is relevant for the purpose of payment of gratuity under Section 4(1) of the Act where a workman ceases to be an employee of the employer on his attaining the age of superannuation in terms of Sub -clause (a) thereof. It has already been held above that Sub -clause (b) of Section 4(1) is independent of Sub -clause (a). Under Sub -clause (b) of Section 4(1) the age of superannuation of an employee is not relevant for the purpose of payment of gratuity on his retirement or resignation. The Respondent, therefore, cannot be refused gratuity in terms of Section 4(1)(b) of the Act on this ground as well.
(3.) THE last contention of the Learned Counsel for the Petitioner is that Section 4(l)(b) of the Act to the extent it provides for payment of gratuity to an employee who voluntarily resigns from the job after having put in continuous service for not less than five years is ultra vires Article 19 (1)(g) of the Constitution inasmuch as the qualifying service of five years prescribed therein is too short and unreasonable. The argument proceeds that the gratuity under the Act is a reward for good efficient and meritorious service rendered by an employee for a considerable period and there is no justification for directing the employer to pay gratuity to one who voluntarily resigns job after having put in five years of service. The provision contained in Section 4 (1)(b) of the Act to the extent of voluntary resignation imposes an unreasonable restriction on the fundamental right of the employer to carry on business and is violative of the right guaranteed under Article 19(1)(g) of the Constitution. Reliance has been placed on Express Newspaper (Private) Ltd. and Ors. v. The Union of India and Ors. : AIR 1958 S.C 578. Amritsar Rayon and Silk Mills and their workmen, 1962 L.L.J. 224., Wenger and Company and Ors. and their Workmen, 1963 L.L.J. 403., and Messrs. British Paints India) Ltd. v. Its Workmen : AIR 1966 S.C. 732.;