1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.5506/2000 Gram Panchayat, Shivad Versus Rang Lal and others DATE OF ORDER --- April 01,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Mukesh Verma, for the petitioner Mr.L.L.Gupta, for the respondent REPORTABLE BY THE COURT (1) By this writ petition, the petitioner has challenged the judgment and order dated 30.11.1999 (Anx.2) passed by the Controlling Officer under the Payment of Gratuity Act, Sawai Madhopur in Claim No.PGA 1/1998. (2) The brief facts of the case are that the respondent No.1 Rang Lal, filed an application u/s 7 of the Payment of Gratuity Act, 1972 (hereinafter referred to as `the Act of 1972'), before the Controlling Officer stating therein that he had worked as Class-IV employee in Gram Panchayat, Shivad from 1963 to 6.1.1998 and on attaining the age of superannuation, he retired on 6.1.1998. At that time, his salary was Rs.950/- per month but he was not paid gratuity though he completed 35 years' service. The respondent No.1 claimed a sum of Rs.19,163/- on account of gratuity. The respondent No.1 prayed for a direction to the Gram Panchayat, Shivad to make payment of gratuity on the basis of length of his service. (3) In reply, the petitioner Gram Panchayat took the objection that the provisions of the Act of 1972 are not applicable to the Panchayati Raj Institutions. One more objection was taken that the respondent No.1 was appointed 2 temporarily on daily wages and on abolition of octroi, workers who were more than 60 years of age, were removed from service. (4) After hearing the parties, the Controlling Officer passed the impugned order dated 30.11.1999 directing the Gram Panchayat for making payment of gratuity to the respondent No.1 giving a finding that at the time of the removal of the respondent No.1 from service, there were 30-35 employees and the Gram Panchayat, being a local body, is covered on account of S.O.No.239 dated 8.1.1982 issued by the Central Government and made effective from 23.1.1982 according to which local bodies are also `establishments'. The Controlling Officer has also given finding that the Gram Panchayat, Shivad is an `establishment' under the Rajasthan Panchayat Act, 1953 (wrongly referred to as the Rajasthan Panchayat Act, 1953 whereas in fact, at that time, the Rajasthan Panchayati Raj Act, 1994 had already come into force) and further, the same is covered u/s 1(3) of the Act of 1972 and therefore, the provisions of the Act of 1972 are applicable and as per Sec. 4, the respondent No.1 is entitled to payment of gratuity and further, the amount of gratuity was calculated and a sum of Rs.13,700/- was ordered to be paid as gratuity to the respondent No.1. (5) Submission of counsel for the petitioner is that the Gram Panchayat is not an `establishment' under Sec.1(3) of the Act of 1972. (6) Submission of counsel for the respondent No.1 is that as per Sec. 9 of the Rajasthan Panchayati Raj Act, 1994 (in short `the Act of 1994'), the State Government may, by notification in official gazette, declare any local area, comprising a village or a group of villages not included in a Municipality or a cantonment board constituted under any law for the time being in force to be Panchayat Circle and for every local area declared as such there shall be a Panchayat. As per sub-section (2) of Sec.9 of the Act of 1994, every Panchayat is a body corporate having perpetual succession and common seal, therefore, Gram Panchayat, Shivad is a local body and is an `establishment' u/s 1(3) of the 3 Payment of Gratuity Act, 1972 and is further covered by the aforesaid S.O.No.239 dated 8.1.1982. (7) Counsel for both the parties are in agreement that in regard to the same controversy, SBCWP No.5583/2000 Gram Panchayat, Shivad V. Gafoor and others was filed before this Court and the same was dismissed on 7.3.2008. (8) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. (9) Before proceeding further, I would like to quote Sec.1(3) of the Act of 1972 and Sec.9 of the Rajasthan Panchayati Raj Act, 1994. The same are as follows: Sec.1(3) of the Act of 1972 “1.Short title, extent, application and commencement – (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to - (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments,in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government, may, by notification, specify in this behalf. (emphasis supplied) (3-A) .... (4) ....” Sec.9 of the Rajasthan Panchayati Raj Act, 1994 “9.Establishment of Panchayat – (1) The State Government may, by notification in the Official Gazette, declare any local area, comprising a village or a group of villages not included in a Municipality or a cantonment board constituted under any law for the time being in force to be Panchayat Circle and for every local area declared as such there shall be a Panchayat. (emphasis supplied) (2) Every Panchayat shall, by the name notified in the Official Gazette, be a body corporate having perpetual succession and common seal and shall, subject to any restrictions and conditions imposed by or under this Act or any other law, have power to acquire, by purchase, gift or otherwise, to hold, administer and transfer property, both movable and immovable, and to enter into any contract and shall, by the said name, sue and be sued. (emphasis supplied) 4 (3) The State Government may, at any time, after one month's notice published in the prescribed manner either on its own motion or at the request of the Panchayat or of the residents of the Panchayat Circle, and by notification in the Official Gazette, change the name or place of office of any such Panchayat.” (10) As per Sec.9(1) and (2) of the Rajasthan Panchayati Raj Act, 1994, Gram Panchayat is a `local body' for rural area. (11) I would also like to quote the relevant portion of the aforesaid judgment in Gram Panchayat, Shivad V. Gafoor and others. The same is as follows: “In the present matter, I do not find any jurisdictional error, perversity and illegality in the award passed by the respondent No.2 on 30.11.1999. The finding of the respondent No.2 is based on the basis of material placed before him. There is no error apparent in the face on record. I, therefore, do not find any justification to interfere with the award. In my view the writ petition does not call for any interference. The same is, therefore, dismissed with no order as to costs.” (12) The above legal provision and the evidence adduced by the parties has been discussed by the Controlling Officer and further he has not committed any jurisdictional error, perversity or illegality in holding that the Gram Panchayat is a `local body' under the Rajasthan Panchayat Act, 1953 and further the same is covered u/s 1(3) of the Act of 1972 read with S.O.No.239 dated 8.1.1982 according to which local body is an `establishment', and further, the finding of the Controlling Officer of 30-35 employees is based on evidence adduced by the parties. Thus, the Controlling Officer has acted within the parameters of law. Therefore, the contentions of the respondent No.1 have force whereas contentions of the petitioner are devoid of merit and the provisions of the Payment of Gratuity Act, 1972 are applicable to Gram Panchayat. (13) The writ petition is accordingly dismissed. (Prem Shanker Asopa) J. गोpa ल hold, administer and transfer property, both movable and immovable, and to enter into any contract and shall, by the said name, sue and be sued. (emphasis supplied) 5 (3) The State Government may, at any time, after one month's notice published in the prescribed manner either on its own motion or at the request of the Panchayat or of the residents of the Panchayat Circle, and by notification in the Official Gazette, change the name or place of office of any such Panchayat.” (10) As per Sec.9(1) and (2) of the Rajasthan Panchayati Raj Act, 1994, Gram Panchayat is a `local body' for rural area. (11) I would also like to quote the relevant portion of the aforesaid judgment in Gram Panchayat, Shivad V. Gafoor and others. The same is as follows: “In the present matter, I do not find any jurisdictional error, perversity and illegality in the award passed by the respondent No.2 on 30.11.1999. The finding of the respondent No.2 is based on the basis of material placed before him. There is no error apparent in the face on record. I, therefore, do not find any justification to interfere with the award. In my view the writ petition does not call for any interference. The same is, therefore, dismissed with no order as to costs.” (12) In view of the above, the Controlling Officer has not committed any jurisdictional error, perversity or illegality in holding that the Gram Panchayat is an `establishment' under the Rajasthan Panchayat Act, 1953 and further the same is covered u/s 1(3) of the Act of 1972 read with S.O.No.239 dated 8.1.1982 according to which local body is an `establishment', and further, the finding of the Controlling Officer of 30-35 employees is based on evidence adduced by the parties. The provisions of the Payment of Gratuity Act, 1972 are therefore, applicable to Gram Panchayat. (13) The writ petition is accordingly dismissed. (Prem Shanker Asopa) J. गोpa ल