IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 1056 of 2008 Between: D.Shanker S/o.late Linganna, R/o. 1-1/5, Janakampet, via Sarangapoor, Mandal: Yedpally, Nizamabad District. ..... PETITIONER AND 1 APSRTC., Rep. by its Managing Director, Musheerabad, Hyderabad. 2 The Regional Manager, APSRTC., Nizamabad Region, Nizamabad. 3 The Depot Manager, APSRTC., Bus Depot Bodhan, Nizamabad District. 4 The Regional Provident Fund Commission, Barkatpura, Hyderabad, Andhra Pradesh, rep. by its Regional Provident Fund Commissioner. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ or direction particularly one in the nature of Writ of Mandamus declaring the action of the respondents 1 to 3 in not arranging the gratuity for the period from 25.8.1972 to 07.06.1993, not arranging the wages for un-availed leaves of 245 days; withheld salary of Nov' 2007 Rs. 11,226/-, arrears of 3rd installment of RPS 2005, and pension payable from December' 2007 onwards as arbitrary, unjust, in violation of Art. 14, 16 & 21 of the Constitution of India contrary to the award made in I.D.No. 162 of 1992 as well s in violation of service Regulations and Employee Pension scheme and direct the respondents to arrange the above benefits along with 18% interest from due date in the interest of justice and fair play. Counsel for the Petitioner: MR.V.NARASIMHA GOUD Counsel for the Respondents 1 to 3.: SMT.B.G.UMA DEVI SC FOR APSRTC Counsel for the Respondent No.4:MR. R.N.REDDY, SC FOR PFC. The Court made the following : ORDER: The petitioner joined the services of the respondents Corporation as Conductor on 04.02.1972. His services came to be regularized with effect from 24.02.1973. Departmental proceedings came to be initiated against him for cash and ticket irregularities. By way of punishment he came to be removed from service by the disciplinary authority for the charges proved against him. He raised an industrial dispute before the Labour Court-II, A.P., Hyderabad. The Labour Court entertained the dispute as I.D.No.78 of 1988 and subsequently renumbered as I.D.No.162 of 1992. The Labour Court-II set aside the order of removal and directed the respondents Corporation to reinstate the petitioner with continuity of service but without back wages, by Award dated 24.11.1992. The Respondents Corporation reinstated the petitioner and subsequently, the petitioner got promotion as A.D.C./Controller in November, 1994 and retired from service on 30.11.2007. Various other proceedings have been referred in the writ affidavit, they need not be detailed in view of the order proposed to be passed. 2. Rule Nisi came to be issued on 24.01.2008. Respondents entered appearance through a counsel and filed counter-affidavit. It is stated in the counter-affidavit that the petitioner was reinstated into service as per Award dated 24.11.1992 passed in I.D.No.162 of 1992 by maintaining continuity of service but without back wages and on reinstatement, the petitioner reported duty at Bodhan Depot on 08.06.1993 and subsequently, the petitioner came to be promoted as A.D.C./Controller vide Order dated 11.11.1994. It is further stated that the petitioner was paid a sum of Rs.81,012/- towards 100% gratuity and a sum of Rs.1,17,570/- towards Provident Fund settlement. Para.5 of the counter- affidavit needs to be noted and it is thus: “5. It is submitted that it is a fact that petitioner was drawing the Basic Pay of Rs.8,775 + 1,225/- DA at the time of retirement. It is a fact that the gratuity was paid for 14 years of service duly deducting the out of service period from 24.08.1972 to 07.06.1993. It is submitted that the Gratuity is paid in accordance with the provisions of the Payment of Gratuity Act, 1972. As per Sec.2 of the Payment of Gratuity Act, the petitioner must have continuous service as defined in the said section to claim gratuity. The petitioner should have actually worked for 240 days in a year to claim gratuity. Hence, the period out of service is not counted for payment of Gratuity. Further, the petitioner filed W.P.no.22101/02 seeking grant of notional increments. This Hon’ble Court by an Order dated 06.1.2002 directed the Corporation to grant him notional increments and pay the arrears of increments accrued thereon. The Corporation filed W.A.No.1344/03 and the same was allowed on 07.08.2003. The C.C.187/03 was closed on 08.08.2003. S.L.P.No.1504/04 filed by the petitioner against Order in W.A.No.1344/03 was also dismissed.” 3. Heard learned counsel appearing for the petitioner and learned Standing Counsel for APSRTC appearing for the respondents Corporation. 4. Learned counsel appearing for the petitioner submits that the petitioner confines his relief in the writ petition with regard to treating the out of service period i.e. from 25.08.1972 to 07.06.1993 for the purpose of computation of the gratuity. He would contend that once the petitioner is reinstated with continuity of service, the out of period of service as a consequence of removal order is to be counted for the purpose of gratuity. In support of his submission, reliance has been placed on the decisions of this Court in M.Rama Rao v. Asst. Traffic Manager, APSRTC, Hyderabad[1] and M.Somaiah v. APSRTC, rep. by its M.D., Hyderabad & anr., (W.P.No.14733 of 2008, dated 10.07.2008). 5. Learned Standing Counsel appearing for the respondents Corporation submits that the petitioner approached the Labour Court with enormous delay of more than 20 years and in which case the petitioner is not entitled for counting the out of service period for the purpose of gratuity. 6. I have gone through the Award dated 24.11.1992 passed in I.D.No.162 of 1992. In the Award, the Labour Court set aside the order of removal passed against the petitioner and directed reinstatement of the petitioner by maintaining continuity of service but without back wages. Under identical circumstances, this Court in M.Rama Rao’s case (1 supra) held that an employee is entitled for gratuity for the period during which he was out of service, in case the Labour Court directed reinstatement with continuity of service. 7. Following the same, the writ petition is disposed of directing the respondents Corporation to count the out of service period of the petitioner i.e. from 25.08.1972 to 07.06.1993 for the purpose of gratuity. No costs. ________________________ B.SESHASAYANA REDDY, J. Date:17th March, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI} [1] 1998 (2) ALT 534 = 1998 (3) ALD 76