Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ........... OF 2020
(Arising out of SLP (Civil) No. 4790 of 2019)
Dhansai Sahu …Appellant(s)
Versus
State of Chhattisgarh & Ors. …Respondent(s)
O R D E R
1. Leave granted.
2. The moot question involved in this appeal is: whether the service
rendered as dailywager before being regularized and given the status
of a regular Government servant, can be reckoned, so as to invoke the
provisions of the Payment of Gratuity Act, 1972 (for short, “the 1972
Act”) after the age of superannuation and retirement as State
Government employee?
3. The High Court of Chhattisgarh, Bilaspur (for short, “the High
Signature Not Verified
Court”) relying on the definition of “employee” in Section 2(e) of the
Digitally signed by
DEEPAK SINGH
Date: 2020.01.21
17:40:51 IST
Reason:
1972 Act, has taken the view that the provisions of the 1972 Act have
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no application to a person who holds a post under the State
Government and is governed by any other Act and in particular, the
Chhattisgarh Civil Services (Pension) Rules, 1976 (for short, “the 1976
Rules”).
4. The appellant would, however, rely on the recent decision of this
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Court in Netram Sahu vs. State of Chhattisgarh & Anr. , dealing
with the similar argument by the appellant therein, who was
appointed as a dailywager and after working for 22 years, came to be
regularized on work charge establishment but was denied gratuity,
because on the day when he attained the age of superannuation, he
was holding the post under the State Government. Indeed, the Court
was called upon to answer the issue in identical situation, but it is
obvious from the observations in paragraph 14 of the reported
decision that no provision of either the 1972 Act or the 1976 Rules
was brought to the notice of the Court, which would disentitle the
appellant therein from claiming the gratuity or for that matter, any
provision prohibiting the appellant therein from taking benefit of his
long and continuous service period of 22 years which he had rendered
prior to being regularised. Notably, this Court had dealt with the
judgment of the High Court in the case of
Netram Sahu vs. State of
1 (2018) 5 SCC 430 (two-Judge Bench)
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Chhattisgarh & Ors. , which in turn had relied on the exposition of
this Court in the case of
Bharat Sanchar Nigam Ltd., Jammu vs.
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Teja Singh (unreported decision) and also the principle underlying
the exposition in
Secretary, State of Karnataka & Ors. vs.
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Umadevi (3) & Ors. . However, none of the above decisions has been
referred to while answering the issue by this Court in
Netram Sahu
(supra @ F.N. 1).
5. In the case of Teja Singh (supra), the coordinate Bench of two
Judges of this Court considered the claim of a person who was an
employee as a dailyrated Mazdoor with a Central Government owned
Corporation. He was recruited in the year 1973 and regularized with
effect from 11.8.1986 and eventually superannuated on 30.8.1989.
This Court was pleased to set aside the relief of gratuity given to that
person by the Central Administrative Tribunal and the High Court. In
other words, the coordinate Bench of this Court opined that a daily
rated Mazdoor who has been regularized but did not have qualifying
service in terms of the service rules for extending retiral benefits to
him, would not be entitled for payment of gratuity under the 1972
Act. In other words, the subsequent decision in Netram Sahu (supra
2 Decided on 1.8.2014 in Writ Appeal No. 240/2014 (2014 SCC OnLine Chh 159)
3 Decided on 16.1.2009 in Civil Appeal No. 292/2009 (two-Judge Bench)
4 (2006) 4 SCC 1
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@ F.N. 1) is in conflict with the said principle stated in the unreported
decision of this Court.
6. Reverting back to Section 2(e) of the 1972 Act, the same in no
uncertain terms provides that if a person 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, the
provisions of the 1972 Act will have no application. The respondents
are relying on the provisions of the 1976 Rules applicable to the post
held by the appellant after being regularised on 1.9.2008. The said
rules provide for grant of pension and gratuity. “Gratuity” has been
defined in Rule 3(i) to include “Service Gratuity” payable under sub
Rule (1) of Rule 43; “DeathcumRetirement Gratuity” payable under
subRule (1) of Rule 44 and; “Residuary Gratuity” payable under sub
Rule (2) of Rule 44 of the stated Rules (the 1976 Rules). Rule 5 deals
with regulations of claims of pension/gratuity or family pension, Rule
13 predicates that the service of a Government servant shall not
qualify unless his duties and pay are regulated by the Government or
under conditions determined by the Government and Rule 16
envisages counting of service on contract for a specified period.
Obviously, these Rules were not brought to the notice of this Court in
the case of (supra @ F.N. 1). We may also notice the
Netram Sahu
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decision of the High Court of Karnataka at Bangalore in the case of
Assistant Executive Engineer CNNL vs. The Deputy Labour
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Commissioner & Appellate Authority, Bangalore & Ors. , which
has taken the view that where provision for payment of gratuity is
made in the service Rules applicable to the person holding a post, his
claim for gratuity must be decided on the basis of such Rules and not
by invoking the provisions of the 1972 Act.
7. Ordinarily, we would have proceeded to decide the matter on the
construct of the relied upon Rules, but as noted above, the exposition
by the coordinate Bench of two Judges of this Court in the unreported
decision of (supra) will also have to be taken note of and
Teja Singh
to observe judicial propriety, we deem it appropriate to refer the issue
under consideration to be considered by a larger Bench of three
Judges. Accordingly, the Registry is directed to place the file of the
present matter before Hon’ble the Chief Justice for constitution of a
larger Bench.
............................, J.
(A.M. Khanwilkar)
............................, J.
5 Decided on 4.9.2012 in W.P. No. 15856/2012 and connected matters
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(Dinesh Maheshwari)
New Delhi;
January 21, 2020.