IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 16275 of 2008 Decided on : 19.7.2011 ________________________________________________ Kushal Singh … Petitioner Versus The State of Himachal Pradesh & Others … Respondents. ___________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1 No. For the petitioner : Mr. Ranjan Sharma, Advocate. For the respondents : Mr. Vinod Thakur, Dy. Advocate General. ________________________________________________ V.K. Sharma, Judge (oral). Though the petition has been filed on as many as five substantive prayers vide para 7(i) to (v), yet at the time of hearing it is restricted only qua prayer (v), which is as under:- “That respondents may be directed to release the retiral benefits like unutilized earned leave & Gratuity since his initial appointment in May 1981 till 12.2.2007 or till 30.12.2007 whichever is beneficial, as per the Payment of Gratuity Act or any other law, 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 alongwith interest @ 12% p.a. from the due date till realization.” 2. As far as prayer (v) above is concerned, the stand on behalf of the respondents as contained in relevant part of para 6(vii)(a-v), is as follows:- “The applicant was appointed as regular C-IV in the year 2005 after this notification hence, he is not entitled to any relief. The applicant has joined his duty as part time on 1.5.1981, but according to the rules, he is not entitled for any gratuity and pension therefore, the applicant is not entitled to any relief.” 3. The learned counsel for the petitioner submits at the very outset that the case of the petitioner with regard to prayer (v) is squarely covered under the judgment of this Court in State of H.P. vs. Lashkari Ram, 2008 (1) Shim. LC 245, wherein, it has been held as under vide para 17 of the judgment:- “This Court is of the opinion that both the legislations i.e Payment of Gratuity Act, 1972 and CCS (Pension) Rules, 1972 can co-exist and can operate simultaneously. Payment of Gratuity Act, 1972 for the period the workman has worked on daily wages basis and CCS (Pension) Rules, 1972 after the period of regularization till the date of superannuation. There would not be any conflict while implementing the Payment of 3 Gratuity Act, 1972 as well as CCS (Pension) Rules, 1972 qua the workman whose nature of appointment varies from time to time. This question has also been considered by the Hon’ble Apex Court in EID Parry (I) Ltd. v. G. Omkar Murthy and others, (2001) 4 SCC 68, Their Lordships have opined as under:- “Four contentions are put forth before us, namely, that: (i) The Central Act prevails over the State Act by virtue of Article 254 of the Constitution and Section 40(3) is invalid and the claims are unsustainable; (ii) Section 40(3) of the State Act stood repealed on the coming into force of the Andhra Pradesh Shops and Establishments Act, 1988 and gratuity became payable under Section 47(5) of the State Act where payment of gratuity is not payable under the Central Act; (iii) Section 14 of the Central Act overrides other enactments in relation to gratuity, and (iv) The respondents have been paid gratuity under the Central Act for the period covered and for the balance period of service gratuity is paid under the prevailing Trust Scheme. At the relevant time when the respondents voluntarily retired from service the definition of 'employee' under Section 2(e) of the Central Act read as not to include employee whose wages exceeded Rs. 1,000/- per mensem while the respondents-employees were all getting wages more than Rs. 1,600/- per mensem and, therefore, 4 the Central Act could not be applied. If that is so, it is certainly permissible for the respondents to have made an application for payment of gratuity under Section 40(3) of the State Act. Further the scheme of the Central Act would indicate that it would not be applicable in cases where the State Act is more beneficial than the Central Act. In this case, the finding is that the State Act is more beneficial than the Central Act. Therefore, the contentions sought to be advanced on behalf of the appellant as to repugnancy or otherwise of the State Act would not arise at all. If both the enactments can co-exist and can operate where one Act or the other is not available then we find no difficulty in making the State Act applicable on the fact situation available as has been done in the present case. Therefore, we find that the contentions raised on behalf of the appellant are unsustainable.” 4. In view of the above, if on facts, the case of the petitioner qua prayer (v) is covered under the judgment in State of H.P. vs. Lashkari Ram, 2008 (1) Shim. LC 245 and he is also similarly situate, he shall be treated similarly without any discrimination and benefit of the said judgment shall be extended to him, within three months from the date of production of copies of this judgment and the judgment referred to here-in- above, by the petitioner before the second respondent/competent authority, failing which interest @ 9% per annum shall be payable. 5 5. The petition so also the pending application(s), if any, stand disposed of in the above terms. (V.K. Sharma) Judge. 19th July, 2011. Lsp*