M.M. Kumar, J. - (1.) THE Senior Superintendent of Post Offices, Hoshiarpur has challenged order dated 21.8.2003 (Annexure P.3) of the Controlling Authority appointed under the Payment of Gratuity Act, 1972 whereby he has been directed to pay a sum of Rs. 12,286/ - as gratuity alongwith interest @ 10 percent from 25.12.2001 till the date of payment to the claimant. The aforementioned order has been upheld by the Appellate Authority i.e. Regional Labour Commissioner (Central), Chandigarh, vide its order dated January 5, 2006 (P -6).
(2.) BRIEF facts of the case are that one Shri Ram Murti was appointed as Extra Departmental Agent (EDA) on 4.9.1982 and he retired from service on 24.11.2001 after rendering 18 years 9 months and 25 days of continuous service who is now represented by his widow. After one month he died and had nominated his wife (hereinafter to be referred as respondent -workman). The department of the Post Office represented through the petitioner had paid him an amount of Rs. 16,520/ - as gratuity in accordance with the Post and Telegraph Extra Departmental Agent (Conduct) Service Rules, 1964 (for brevity EDA Rules). However, his widow has claimed gratuity under Sub -rule 1 of Rule 10 of the Payment of Gratuity (Central) Rules, 1972. She has claimed a sum of Rs. 57,692/ - for the period of service rendered by her husband (18 years 9 months and 25 days). Despite representation made to the petitioner department for grant of balance amount of gratuity under the Payment of Gratuity Act, 1972 (for, brevity 'the Gratuity Act') the same has not been paid to the respondent workman. The Controlling Authority came to the conclusion that the case of the respondent -workman was covered by the definition of expression 'employee' as used in Section 2(e) of the Gratuity Act. It was also admitted by the petitioner -department that services of the respondent -workman has been considered out of the purview of Central Civil Service Rules. Placing reliance on Section 14 of the Act, the Controlling Authority held that payment of gratuity to any person cannot be denied on the ground of any other provision in any other Act/Statute or Rules. Therefore, the plea that under the EDA Rules the gratuity is payable and the same would take the case of the respondent -workman out of the purview of the Gratuity Act has been rejected. Accordingly, an amount of Rs. 28,806/ - has been calculated to be payable amount as gratuity under the Gratuity Act by taking into account the service period of 19 years of the respondent -workman. As the amount of Rs. 16,520/ - stands already paid, the balance amount of Rs. 12,286/ - has been worked out. Accordingly a direction was issued for payment of the aforementioned amount. The order of the Controlling Authority was challenged by the petitioner -department before the Appellate Authority -cum -Regional Labour Commissioner who rejected the argument that the services of the workman were regulated by the Central Civil Service Rules according to the judgment of the Supreme Court rendered in the case of Union of India and Ors. v. Kameshwar Parshad : (1997)11SCC650 by observing that Hon'ble the Supreme Court did not hold that EDA employees were holding the post under the Central Government. It was in fact held that they were civil servants and were entitled to protection of Article 311(2) of the Constitution. The view of the Appellate Authority is evident from the concluding two paras of the order and the same reads as under: In this case, it is transparently clear that the post held by the husband of the respondent/applicant was a post not governed under CCS (Pension) Rules. The respondent/employee was Extra Departmental Branch Postmaster in the establishment of postal departmental and as such he was not holding a post under the Central Government. The service condition of the workman was governed under provisions of Extra Departmental Agents now known as Grant in Dak Sewaks but the provisions of the act are less favourable than the Payment of Gratuity Act, 1972. Hence, the Id. Controlling Authority has rightly held that the respondent/employee is an employee within the purview of Section 2(e) of the Payment of Gratuity Act, 1972. ORDER In view of the above findings, this Appellate Authority after affording the opportunities to the parties hereby confirmed the decision dated 21.8.2003 of the Id. Controlling Authority -cum -Asstt. Labour Commissioner (C) Chandigarh. Mr. M.S. Guglani, learned Counsel for the petitioner has submitted that an employee has been defined in Section 2(e) of the Gratuity Act and it does not cover any such person who is governed by some other rules of the department. According to the learned Counsel, the EDA Rules, 1964 which are now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001 regulate the payment of gratuity to the workman and, the Gratuity Act would not be applicable. Accordingly, gratuity has to be paid to them in accordance with the EDA Rules. Therefore, the view taken by the Controlling Authority or the Appellate Authority accepting the workman -respondent as an employee under the Act is absolutely incorrect. Learned Counsel has further submitted that under the EDA Rules, the workman respondent has already been paid the gratuity amounting to Rs. 16,520/ - and no further gratuity is payable as the provisions of the Gratuity Act do not apply to the instant case.
(3.) WE have thoughtfully considered the submissions made by learned Counsel for the petitioner -department and regret our inability to accept the same because the definition of expression 'employee' in Section 2(e) has to be read with Sections 5 and 14 of the Gratuity Act. The aforementioned provisions of Sections 2(e), 5 and 14 are extracted below for facility of reference: 2. Definitions. -In this Act unless the context otherwise requires, - (e) "employee" means any person (other than an apprentice) employed on wages, (* * *) in any establishment, factory, mine, oilfield, plantation, port, railway, company or shop, to do any skilled, semi -skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, (and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.;