ASHOK KUMAR MATHUR,J. - (1.) THE facts of both these writ petitions are common, therefore, they are disposed of by one common order.
(2.) IN S.B. Civil Writ Petition No. 2558 of 1985 the petitioner has challenged the order of the appellate authority under the Payment of Wages Act, 1972 dated 20th April, 1985 (Annx. 5). The petitioner joined the services on 22nd September, 1945 of the erstwhile State of Jodhpur and thereafter absorbed in the services of the Government of Rajasthan. The petitioner thereafter gave his option for joining the Rajasthan State Road Transport Corporation (here in after referred as the Corporation) on deputation on 1st October, 1964. Thereafter he continued to serve the Corporation and retired from service of the Corporation with effect from 31st December, 1981. The petitioner filed a claim petition before the Authority under the Payment of Gratuity Act, 1972 (here in after referred as the Act of 1972) against the Corporation. The Corporation submitted a reply that he is not entitled to any gratuity amount over and above already paid. When the petitioner was sent on deputation he was asked to give option whether he would like to opt for the service conditions of the Corporation and would like to subscribe to the Provident Fund Scheme or he would like to have the benefit of Death -cum -Retirement Gratuity. The petitioner gave option for Death -cum -retirement Gratuity and opted for the benefits of pension of Government of Rajasthan. It was further contemplated that in the event of the incumbent opting for the post retiring benefits of the Government of Rajasthan and D.G.R. benefits, the amount of the incumbent will be credited to the account of the Corporation on retirement of the incumbent. The Authority under the Payment of Gratuity Act after hearing both the parties held that the petitioner is entitled to a sum of Rs. 19,624.60 according to the Act of 1972 and a sum Rs. 14,190/ - have already been paid to the petitioner, therefore, the Corporation should pay a sum of Rs. 5,43.60 paise towards gratuity. Aggrieved against this order an appeal was preferred by the Corporation before the appellate authority under the Act of 1972 and the petitioner also preferred an appeal against the order of the authority under the Payment of Gratuity Act because he was aggrieved to the extent that the authorities are taking the period from 9 -5 -1980 whereas he was retired on 31 -12 -1981. Both the appeals were connected together and heard by the appellate authority. The appellate authority dismissed both the appeals holding that since the petitioner has been paid Gratuity according to the Rajasthan Rules he cannot claim any benefit under the Act of 1972. Thus he found that the petitioner is not entitled to any benefit under the Act of 1972. In the result he dismissed both the appeals. Aggrieved against the order of dismissal the petitioner preferred these two writ petitions.
(3.) MR . Parihar, learned Counsel for the petitioner has submitted that in view of Sections 5 and 14 of the Act of 1972 the petitioner is entitled to the gratuity from 1972 under the Act of 1972, as the Corporation has not sought any exemption Under Section 5 from the operation of the Act of 1972. In order to appreciate the contention raised by the learned Counsel for the petitioner it is necessary to consider the language of Section 5 and 14 of the Act of 1972. Section 5 reads under:;