Full Judgment Text
$~22 to 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on: 13 August, 2014
+ W.P.(C) 5138/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv.
Versus
SHARWAN KUMAR GUPTA AND ORS. ..... Respondents
Represented by: Mr. Sanjay Jain, ASG with
Mr. Vikram Jetley, CGSC and Ms.
Pallavi Shali, Advs. for R2, R3, R5 and R6.
Mr. Arjun Harkauli, Adv. for UGC.
AND
+ W.P.(C) 5139/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
RANJIT SINGH & ORS ..... Respondents
Represented by: Mr. Sanjay Jain, ASG with
Mr. Vikram Jetley, CGSC and Ms. Pallavi
Shali, Advs. for R2, R3, R5 and R6.
AND
+ W.P.(C) 5140/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 1 of 8
LAXMAN DASS & ORS ..... Respondents
Represented by: NEMO.
AND
+ W.P.(C) 5143/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
SHEEL KUMAR JAIN & ORS ..... Respondents
Represented by: Mr. Arjun Harkauli, Adv.
for UGC.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
+ W.P.(C) 5138/2014
+ W.P.(C) 5139/2014
+ W.P.(C) 5140/2014
+ W.P.(C) 5143/2014
1. Issue in all the above-noted petitions is that University of Delhi is
constituted under the University Act, 1922, hence, the Gratuity Act is not
applicable on the employees of the University. Therefore, this court has
decided to dispose of all the petitions by way of a common judgment.
2. Vide the present petitions, the petitioners are seeking setting aside of
the impugned order dated 30.09.2013 passed by the Controlling Authority
(Respondent no. 2) in ALC-I/36/305/2013 titled as „Shri Sarwan Kumar
Gupta v. Registrar, University of Delhi‟ and order dated 02.04.2014 passed
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 2 of 8
in Appeal No. 36 (76) 2013-P.A. by the respondent no. 3, i.e., the Appellate
Authority.
3. Ld. Counsel appearing on behalf of the petitioner University of Delhi
submits that petitioner University of Delhi is a Central University, which
came into force by virtue of Delhi University Act, 1922 and the said Act has
specific provisions under its Statute 28-A for payment of gratuity to its
employees and the respondent no. 4, i.e., the University Grant Commission
(UGC), who with the approval of respondent no. 5, i.e., Ministry of HRD,
introduced the provisions of payment of gratuity to the University
employees through Central Universities Retirement Benefit Rules, 1967.
4. Ld. Counsel further submits that employees of the petitioner are thus
governed by the said provisions under its Statute 28-A for payment of
gratuity and accordingly, the employees of the petitioner are being paid
gratuity as per the same along with the Rules as aforesaid read with CCS
Pension Rules.
5. It is further submitted that respondent no.1 in the above-noted
petitions W.P.(C) Nos. 5138/2014, 5139/2014, 5140/2014 and 5143/2014
are the ex-employees of the petitioner, who retired on 30.11.2012,
28.02.2003, 31.08.2003 and 31.10.1999 respectively and was accordingly
paid gratuity for a sum of Rs.7,55,192/-, Rs.2,67,899/-, Rs.2,54,480/ and
Rs.3,09,237/- respectively under Statute 28-A read with Central University
Retirement Benefit Rules, 1967 and CCS Pension Rules, i.e., as per the
provisions of payment of gratuity applicable to the petitioner.
6. Respondent No. 2 is the Controlling Authority of Payment of Gratuity
Act, 1972, before whom respondent no. 1 of the above-noted petitions have
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 3 of 8
filed an application in the year 2013 for grant of difference of gratuity
amount claiming under the Payment of Gratuity Act, 1972. The said
respondent passed an imugned order dated 30.09.2013 holding thereby that
the Payment of Gratuity Act is applicable to the petitioners and thus
respondent no. 1 in the petitions noted above were found entitled to receive a
sum of Rs.2,44,808/-, Rs.59,943/-, Rs.92,537/- and Rs.40,763/- respectively
towards the balance gratuity. Accordingly, the petitioner was directed to pay
the said amount with simple interest @ 10% per annum within 30 days from
the date of receipt of the order.
7. Being aggrieved, the petitioner challenged the order passed by the
Controlling Authority before the Appellate Authority, which was also
dismissed vide order dated 02.04.2014.
8. Ld. Counsel appearing on behalf of the petitioner submits that under
Section 2 (E) of the Payment of Gratuity Act, 1972 it is described as under:
“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 .”
9. Ld. Counsel submits that Section14 of the Payment of Gratuity Act is
not applicable on the University of Delhi. Therefore, the order passed by the
Controlling Authority and the Appellate Authority as noted above are
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 4 of 8
contrary to the provisions of Payment of Gratuity Act, 1972 and the Delhi
University Act, 1922.
10. Ld. Counsel further submits that ex-employees of the University
worked under the University by accepting the Rules and Regulations and
provisions of Delhi University Act, 1922. Therefore, at this stage the
employees cannot take the ground that the Rules and Regulations are not
applicable and the gratuity is their entitlement under the Payment of Gratuity
Act, 1972.
11. I note the Controlling Authority vide its order dated 30.09.2013,
framed three issues as under:
“ 1. Whether Payment of Gratuity Act, 1972 is applicable to the
employees of non-applicant?
2. Whether the delay in filing the claim application can be
condoned?
3. Whether the applicant is entitled for difference of gratuity
as claimed? If yes, whether the applicant is entitled for
interest on delayed period of payment and at what rate?”
12. However, to adjudicate the present petitions, issue no. 1 is relevant.
13. The Controlling Authority has relied upon a case of Jaswant Singh
Gill v. Bharat Coking Coal Ltd. (2007) I SCC 663 wherein the Apex Court
held as under:
“Gratuity becomes payable as soon as the employee
retires. The only condition therefore is rendition of five
years continuous service”.
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 5 of 8
14. Also relied upon a case of Allahabad Bank & Ors. v. All India
Allahabad Bank Retired Employees’ Association 2010, SCC 44 wherein
the Apex Court held as under:
“9. A plain reading of the provisions referred to herein
above makes a abundantly clear that there is no escape
from payment of gratuity under the provisions of the Act
unless the establishment is granted exemption from the
operation of the provisions of the Act by the appropriate
Government.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment delivered on: 13 August, 2014
+ W.P.(C) 5138/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv.
Versus
SHARWAN KUMAR GUPTA AND ORS. ..... Respondents
Represented by: Mr. Sanjay Jain, ASG with
Mr. Vikram Jetley, CGSC and Ms.
Pallavi Shali, Advs. for R2, R3, R5 and R6.
Mr. Arjun Harkauli, Adv. for UGC.
AND
+ W.P.(C) 5139/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
RANJIT SINGH & ORS ..... Respondents
Represented by: Mr. Sanjay Jain, ASG with
Mr. Vikram Jetley, CGSC and Ms. Pallavi
Shali, Advs. for R2, R3, R5 and R6.
AND
+ W.P.(C) 5140/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 1 of 8
LAXMAN DASS & ORS ..... Respondents
Represented by: NEMO.
AND
+ W.P.(C) 5143/2014
UNIVERSITY OF DELHI ..... Petitioner
Represented by: Mr. G.K. Pathak, Adv
versus
SHEEL KUMAR JAIN & ORS ..... Respondents
Represented by: Mr. Arjun Harkauli, Adv.
for UGC.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
+ W.P.(C) 5138/2014
+ W.P.(C) 5139/2014
+ W.P.(C) 5140/2014
+ W.P.(C) 5143/2014
1. Issue in all the above-noted petitions is that University of Delhi is
constituted under the University Act, 1922, hence, the Gratuity Act is not
applicable on the employees of the University. Therefore, this court has
decided to dispose of all the petitions by way of a common judgment.
2. Vide the present petitions, the petitioners are seeking setting aside of
the impugned order dated 30.09.2013 passed by the Controlling Authority
(Respondent no. 2) in ALC-I/36/305/2013 titled as „Shri Sarwan Kumar
Gupta v. Registrar, University of Delhi‟ and order dated 02.04.2014 passed
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 2 of 8
in Appeal No. 36 (76) 2013-P.A. by the respondent no. 3, i.e., the Appellate
Authority.
3. Ld. Counsel appearing on behalf of the petitioner University of Delhi
submits that petitioner University of Delhi is a Central University, which
came into force by virtue of Delhi University Act, 1922 and the said Act has
specific provisions under its Statute 28-A for payment of gratuity to its
employees and the respondent no. 4, i.e., the University Grant Commission
(UGC), who with the approval of respondent no. 5, i.e., Ministry of HRD,
introduced the provisions of payment of gratuity to the University
employees through Central Universities Retirement Benefit Rules, 1967.
4. Ld. Counsel further submits that employees of the petitioner are thus
governed by the said provisions under its Statute 28-A for payment of
gratuity and accordingly, the employees of the petitioner are being paid
gratuity as per the same along with the Rules as aforesaid read with CCS
Pension Rules.
5. It is further submitted that respondent no.1 in the above-noted
petitions W.P.(C) Nos. 5138/2014, 5139/2014, 5140/2014 and 5143/2014
are the ex-employees of the petitioner, who retired on 30.11.2012,
28.02.2003, 31.08.2003 and 31.10.1999 respectively and was accordingly
paid gratuity for a sum of Rs.7,55,192/-, Rs.2,67,899/-, Rs.2,54,480/ and
Rs.3,09,237/- respectively under Statute 28-A read with Central University
Retirement Benefit Rules, 1967 and CCS Pension Rules, i.e., as per the
provisions of payment of gratuity applicable to the petitioner.
6. Respondent No. 2 is the Controlling Authority of Payment of Gratuity
Act, 1972, before whom respondent no. 1 of the above-noted petitions have
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 3 of 8
filed an application in the year 2013 for grant of difference of gratuity
amount claiming under the Payment of Gratuity Act, 1972. The said
respondent passed an imugned order dated 30.09.2013 holding thereby that
the Payment of Gratuity Act is applicable to the petitioners and thus
respondent no. 1 in the petitions noted above were found entitled to receive a
sum of Rs.2,44,808/-, Rs.59,943/-, Rs.92,537/- and Rs.40,763/- respectively
towards the balance gratuity. Accordingly, the petitioner was directed to pay
the said amount with simple interest @ 10% per annum within 30 days from
the date of receipt of the order.
7. Being aggrieved, the petitioner challenged the order passed by the
Controlling Authority before the Appellate Authority, which was also
dismissed vide order dated 02.04.2014.
8. Ld. Counsel appearing on behalf of the petitioner submits that under
Section 2 (E) of the Payment of Gratuity Act, 1972 it is described as under:
“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 .”
9. Ld. Counsel submits that Section14 of the Payment of Gratuity Act is
not applicable on the University of Delhi. Therefore, the order passed by the
Controlling Authority and the Appellate Authority as noted above are
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 4 of 8
contrary to the provisions of Payment of Gratuity Act, 1972 and the Delhi
University Act, 1922.
10. Ld. Counsel further submits that ex-employees of the University
worked under the University by accepting the Rules and Regulations and
provisions of Delhi University Act, 1922. Therefore, at this stage the
employees cannot take the ground that the Rules and Regulations are not
applicable and the gratuity is their entitlement under the Payment of Gratuity
Act, 1972.
11. I note the Controlling Authority vide its order dated 30.09.2013,
framed three issues as under:
“ 1. Whether Payment of Gratuity Act, 1972 is applicable to the
employees of non-applicant?
2. Whether the delay in filing the claim application can be
condoned?
3. Whether the applicant is entitled for difference of gratuity
as claimed? If yes, whether the applicant is entitled for
interest on delayed period of payment and at what rate?”
12. However, to adjudicate the present petitions, issue no. 1 is relevant.
13. The Controlling Authority has relied upon a case of Jaswant Singh
Gill v. Bharat Coking Coal Ltd. (2007) I SCC 663 wherein the Apex Court
held as under:
“Gratuity becomes payable as soon as the employee
retires. The only condition therefore is rendition of five
years continuous service”.
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 5 of 8
14. Also relied upon a case of Allahabad Bank & Ors. v. All India
Allahabad Bank Retired Employees’ Association 2010, SCC 44 wherein
the Apex Court held as under:
“9. A plain reading of the provisions referred to herein
above makes a abundantly clear that there is no escape
from payment of gratuity under the provisions of the Act
unless the establishment is granted exemption from the
operation of the provisions of the Act by the appropriate
Government.
| 18. ......... | No establishment can decide for itself that | |
|---|---|---|
| employees in such establishments were in receipt of | ||
| gratuity or pensionary benefits not less favourable than the | ||
| benefits conferred under the Act. | ......... |
| 19. This Court in Municipal Corporation Delhi v. Dharam | |||
|---|---|---|---|
| Prakash Sharma and Ors. : (1998) 7 SCC 221 observed: | |||
| "the mere fact that the gratuity is provided for under the | |||
| Pension Rules will not disentitle him to get the payment of | |||
| gratuity under the Payment of Gratuity Act. In view of the | |||
| overriding provisions contained in Section | 14 | of the | |
| Payment of Gratuity Act, the provision for gratuity under | |||
| the Pension Rules will have no effect. | .........” |
15. In a case of Y.K. Singla v. PNB, 2013, (136) FLR 1087 , the Apex
Court held as under:
| “19. ......... | A perusal of Section | 14 | leaves no room for any |
|---|---|---|---|
| doubt, that a superior status has been vested in the | |||
| provisions of the Gratuity Act, vis-à-vis, any other | |||
| enactment including any other instrument or contract | |||
| inconsistent therewith. Therefore, in so far as the | |||
| entitlement of an employee to gratuity is concerned, it is | |||
| apparent that in cases where gratuity of an employee is not | |||
| regulated under the provisions of the Gratuity Act, the |
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 6 of 8
| legislature having vested superiority to the provisions of | |||
|---|---|---|---|
| the Gratuity Act over all other provisions/enactments | |||
| (including any instrument or contract having the force of | |||
| law), the provisions of the Gratuity Act cannot be | |||
| ignored | ......... | ” |
16. The Payment of Gratuity Act, 1972 is a complete code in itself. It is
clear from the law and the judgments mentioned above that Provisions of
Payment of Gratuity Act, 1972 shall have overriding effect on all other
provisions relating to Gratuity.
17. Section 14 of the Payment of Gratuity Act, 1972 describes as under:
“The provisions of this Act or any rule made there-under
shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act
or in any instrument or contract having effect by virtue of
any enactment other than this Act.”
18. If the contention of the petitioner is accepted that Delhi University
Act, 1922 and State ordinances are statutory in nature, however, Section 14
of Payment of Gratuity Act, 1972, has overriding effect over the other Acts,
Statutes and Regulations.
19. Admittedly, the petitioner has taken up the case for exemption under
Section 5, which is pending with the Central Government, however, not
granted to the petitioner till date. Therefore, in my considered opinion, till
this exemption is not granted, the petitioner is governed by the provisions of
this Act.
20. It is also admitted fact that the petitioner granted gratuity to some of
its employees, after the order was passed by the Controlling Authority. If
the plea of the petitioner is accepted that the respondent no. 1 in all the
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 7 of 8
petitions are not entitled for gratuity under the Payment of Gratuity Act,
1972, then it tantamount to discrimination and inequality before Law, which
violates Article 14 of the Constitution.
21. The Petitioner is an educational institution and employing more
than 10 persons. The exemption under Section 5 of the Payment of Gratuity
Act, 1972, has not yet been granted to it. The payment has already been
made to some employees of the petitioner under the Payment of Gratuity
Act, 1972.
22. In view of the facts recorded above and legal position, I do not find
any discrepancy in the orders dated 30.09.2013 and 02.04.2014 passed by
the Controlling Authority and the Appellate Authority respectively.
23. Accordingly, the instant petitions are dismissed in limine with no
order as to costs.
CM. NO. 10234/2014 in W.P.(C) 5138/2014
CM. NO. 10235/2014 in W.P.(C) 5139/2014
CM. NO. 10236/2014 in W.P.(C) 5140/2014
CM. NO. 10246/2014 in W.P.(C) 5143/2014
With the dismissal of the petitions, instant applications have become
infructuous and dismissed as such.
SURESH KAIT, J
AUGUST 13, 2014
jg
W.P.(C) Nos.5138, 5139, 5140 and 5143/2014 Page 8 of 8