IN THE HIGH COURT JUDICATURE AT MADRAS DATED : 20.01.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.15114 and 15115 of 2000 The Managing Director Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chintadripet, Chennai – 600 002. ...Petitioner in both W.Ps Vs. 1.The Joint Commissioner of Labour (Appellate Authority under the payment of Gratuity Act,1972) Teynampet, Chennai – 600 006. 2.The Assistant Commissioner of Labour (Controlling Authority under the payment of Gratuity Act, 1972) Teynampet, Chennai – 600 006. ...Respondents 1 and 2 in both WPs 3.G.Jayaraman ...3rd Respondent in W.P.No.15114 of 2000 4.G.A.Parthasarathy ...3rd Respondent in W.P.No.15115 of 2000 PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of certiorari, calling for the records of the first respondent in P.G.A.I.A.Nos.4 and 5 of 2000 in P.G.A.Nos.15 and 16 2000 dated 25.7.2000 confirming the order of the second respondent in P.G.Nos.274 and 275 of 1999 dated 06.01.2000 respectively and quash the same. For Petitioner : Mr.B.Shanthakumar Senior Panel Counsel For Respondents : Mrs.C.K.Vishnupriya,A.G.P. for R1 and R2 Mr.G.Ethirajulu for R3 C O M M O N O R D E R In both the writ petitions, the petitioner is the Managing Director of Chennai Metropolitan Water Supply and Sewerage Board (for short Metro Water). https://hcservices.ecourts.gov.in/hcservices/ 2. Aggrieved by the order of the first respondent Appellate Authority under Payment of Gratuity Act (for short Gratuity Act) in P.G.A.I.A.Nos.4 and 5 of 2000 in P.G.A.Nos.15 and 16 of 2000 dated 25.07.2000, the present writ petitions have been filed. The contesting third respondents have filed applications before the second respondent-Controlling Authority under the Gratuity Act in P.G.Nos.274 and 275 of 1999. The second respondent computed the gratuity in terms of the Act by an order dated 06.01.2000. As against the said order, the petitioner preferred an appeal. Since there was a condition precedent, the petitioner deposited the amounts. The appeals filed by the petitioner were taken on file as P.G.A.Nos.15 and 16 of 2000 and notice was ordered to the contesting respondents. 3. The Appellate Authority - the first respondent dismissed the petitioner's appeals. The contention raised before the first respondent – Appellate Authority was that the Act will not apply to the petitioner Board and that the contesting respondents were covered by the Tamil Nadu Pension Rules which includes a component of Death-cum-Retirement Gratuity (for short DCRG). Since they are already eligible to get gratuity under the Pension Rules, the payment of gratuity as a third benefit is available to them. The authority rejected both the contentions and held that the Act will apply to the petitioner Board as it is an establishment under Section 1(3)(b) of the Gratuity Act. With reference to the gratuity payable under DCRG has no relevance when a claim is made under the Gratuity Act. Aggrieved by the said order, the present writ petitions have been filed. 4. Both the writ petitions were admitted on 07.09.2000. Pending the writ petitions, this Court granted permission to the third respondents to withdraw the amounts lying in the deposit after furnishing immovable property as security. Aggrieved by the interim order passed by this Court in W.M.P.Nos.21973 and 21974 of 2000, the petitioner Board preferred writ appeals in W.A.Nos.1775 and 1776 of 2000. The Division Bench of this Court by a final order dated 12.02.2001 disposed of the writ appeals with a modification that instead of furnishing immovable property as security, the contesting respondents must furnish Bank Guarantee for the likesum. Pursuant to the order, the contesting respondents have also withdrawn the amount as notified by the second respondent vide its communication dated 15.06.2001. 5. Mr.B.Shanthakumar, learned Senior Panel counsel for the petitioner submitted that Regulation No.24 of Chennai Metropolitan Water Supply and Sewerage Board Pension Regulations provides for DCRG and in as much as the contesting respondents have availed the gratuity, the payment of gratuity is not available. He also re- iterated that the petitioner Board is not covered by the provisions of the Gratuity Act. Under Section 1(3)(b), every establishment within the meaning of any law for the time being in force in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months is covered by the Act. Under Section 2(e), an employee, if he is holding any post in https://hcservices.ecourts.gov.in/hcservices/ Central Government or State Government alone is deemed to be not an employee under the Act. 6. In the present case, the petitioner is a statutory Board and the contesting respondents cannot be said to be excluded from the definition of Section 2(e). Further under Section 14 of the Gratuity Act, the provisions of this Act or any Rule made thereunder will have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Gratuity Act or in any instrument or contract having effect by virtue of enactment other than this Act. Since overriding effect has been given to the provisions of the Gratuity Act, the petitioner cannot rely upon any regulation to defeat the claim made by the contesting respondents. If the petitioner contends that their scheme is more beneficial, the only option open to them is to seek for an exemption under Section 5 of the Gratuity Act. In the absence of any exemption by the appropriate Government from the purview of the Gratuity Act, the claim made by the contesting respondents cannot be defeated. 7. In similar circumstances, the Supreme Court in Khatheeja Bai v. The Superintending Engineer and others reported in 1986 1 L.L.J. 314 rejected the contention made by the Electricity Board. In paragraph 7 it was held as follows: 7. Dr.Chitaley invited our attention to S.14 the payment of Gratuity Act, 1972 which provides: "The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in an instrument or contact having effect by virtue of any enactment other than this Act." He argued that the provision for Special Contribution under Regulation 37 was inconsistent with the provisions of the Payment of Gratuity Act and therefore the latter should prevail to the exclusion of the former. This argument is dependant on the assumption that the Special Contribution under Regulation 37 is something as the gratuity contemplated by the Payment of Gratuity Act. We have held that it is not and the argument, therefore, fails. 8. In the light of the above, the writ petitions will stand dismissed. No costs. Since the contesting respondents have already availed the benefit of gratuity, the Bank Guarantee furnished by them will stand discharged. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki https://hcservices.ecourts.gov.in/hcservices/ To 1.The Joint Commissioner of Labour (Appellate Authority under the payment of Gratuity Act,1972) Teynampet, Chennai – 600 006. 2.The Assistant Commissioner of Labour (Controlling Authority under the payment of Gratuity Act, 1972) Teynampet, Chennai – 600 006. + 2 CCs to M/s.G.Ethirajulu,Advocate,SR.3732, 3733 + 1 CC to Mr.B.Shanthikumar,Advocate,SR.3983 W.P.Nos.15114 and 15115/2000 SSK (CO) SS (29.01.2010) https://hcservices.ecourts.gov.in/hcservices/