Civil Writ Petition No. 12515 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 12515 of 1990 Date of decision: 12.08.2010 Kuldip Raj Kohli ...Petitioner Versus The Addl. Labour Commissioner, Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: None for the petitioner. Ms. Monica Chhibber Sharma, DAG, Punjab for the State. RANJIT SINGH J. This order will dispose of four Civil Writ Petition Nos. 12511, 12513, 12514 and 12515 of 1990. The petitioner has filed this writ petition seeking writ in the nature of certiorari/mandamus for quashing the orders, Annexures P-2 and P-3, whereby the claim of the petitioner for payment of gratuity under the Payment of Gratuity Act, 1972 (hereinafter referred to as an 'Act') has been declined. The petitioner joined the services of respondent- management on 30.05.1966. He resigned from service on 30.09.1986. Thereafter, on 27.12.1986, he filed an application for payment of gratuity under Section 4 of the Act. The respondent contested the claim of the petitioner. The Controlling Authority dismissed the application on 11.07.1988. The petitioner, thereafter, preferred an appeal against the said order, which was dismissed on Civil Writ Petition No. 12515 of 1990 2 16.04.1990 and conveyed to the petitioner on 20.04.1990. The petitioner, accordingly, has challenged the orders through the present writ petition, which stands admitted. Reference is made to Section 4 of the Act, which reads as under:- “4. Payment of gratuity – (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years- a) on his superannuation, or b) on his retirement or resignation, or c) on his death or disablement due to accident of deceased; Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement. Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs. Explanation – For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) For every completed year of service of part thereof in excess of six months, the employer shall pay gratuity to Civil Writ Petition No. 12515 of 1990 3 an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned, Provided that in the case of piece rated employee, daily wages shall be computed on average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account; Provided further that in the case of an employee employed in a seasonal establishment, the employer shall pay the gratuity at the rate of seven days' wages for each season. (3) The amount of gratuity payable to an employee shall not exceed twenty months' wages. (4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced. (5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. (6) Notwithstanding anything contained in sub-section (1) - (a) the gratuity of an employee, whose services have Civil Writ Petition No. 12515 of 1990 4 been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee shall be wholly forfeited - (i)if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii)if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” Though the claim of the petitioner was declined on the basis of the decision in the case of M/s Darshan Engineering Works Vs. Controlling Authority 1984 (1) LLJ 773 but subsequently, it was viewed by the Hon'ble Supreme Court in 1986 (1) LLJ 23, that the gratuity is payable on termination of employment and whether it be due to superannuation or retirement or resignation or death or disablement. The gratuity would be payable if the same is after the date of coming into force of the Act. Order passed in the judgment of the Hon'ble Supreme Court undoubtedly may impliedly lead to overrule its view whereby the provisions of sub section (1) of Section 4 was struck down and gratuity may be payable in the case of resignation. Once the Hon'ble Supreme Court has approved the payment of gratuity in those cases where employee submits Civil Writ Petition No. 12515 of 1990 5 resignation, the view taken by this Court may have to make way for what is held by the Hon'ble Supreme Court. Accordingly, the present writ petition deserves to be allowed with the direction to the respondents to consider the claim of the petitioner in the light of observations made by the Hon'ble Supreme Court. The amount if find due be released to the petitioner within a period of 3 months from the date of receipt of copy of this order. August 12, 2010 ( RANJIT SINGH ) rts JUDGE