H.S.BHALLA, J. W.P.(C) NO.10536 OF 2009 (Decided on 19.04.2011) SIBARAM PRADHAN ……… Petitioner. .Vrs. STATE OF ORISSA & ORS. ….. … Opp.Parties. (A)PAYMENT OF GRATUITY ACT, 1972 (ACT NO39 OF 1972) – S.4. (B)PAYMENT OF GRATUITY ACT, 1972 (ACT NO.39 OF 1972) – S.1(3)(C) & 1(3-A). For Petitioner - M/s. Rama Chandra Rath, S.Mohanty & S.K.Panda. For Opp.Parties - M/s. Kishore Kumar Mishra & R.K.Mohanta. (for O.P.No.2) H.S.BHALLA, J. The petitioner has filed the aforesaid writ petition with a prayer to direct the Collector-cum-Chairman, F.F.D.A., Ganjam to make payment of the amount of gratuity as admissible to him under the Payment of Gratuity Act, 1972 within a stipulated period. 2. Sworn of unnecessary details, the short facts leading to the filing of the aforesaid writ petition are as follows: The petitioner on being duly selected was initially appointed as a Junior Clerk under the Collectorate, Ganjam on 4.6.1964. Subsequently, his services were terminated on 5.4.1968 as he was found to be under qualified to be appointed against such post. Challenging such order of termination, the petitioner filed a writ application bearing O.J.C. No.276 of 1968 and this Court did not interfere with the order of termination and dismissed the writ application. Again challenging the said order passed by the Hon’ble Single Judge of this Court, Civil Review No.12 of 1971 was also filed and the same was also dismissed. From the service book it appears that the petitioner was terminated from service on 20.6.1972. However, the petitioner was again appointed as L.D. Clerk by the Collector, Ganjam on 9.9.1972 and subsequently, the Collector passed another order on 1.8.1972 in which it was stated that the petitioner was ‘reinstated’ in service in stead of “fresh appointment”. Thereafter, pursuant to the decision of this Court in Civil Review No.12 of 1972 and the instruction of the Revenue Department, he was finally terminated from service by the order of the Collector, Ganjam dated 24.7.1976. It may be mentioned here that about more than two years after passing of the order of termination, the petitioner applied to the Chairman, Fish Farmers’ Development Authority on 8.9.1976 requesting for either reinstatement in service or for appointment. After considering his application, the Fish Farmer Development Authority, Berhampur, Ganjam, in short, “FFDA” appointed him as L.D. Clerk-cum- Typist under the scheme named as “Pilot Project for Intensive Development of Inland fish Culture in Orissa” by order dated 14.9.1976. He continued in the said post under the FFDA till his date of superannuation, i.e., 31.8.1999. It is worthwhile to mention here that the service regulation of the agency staff was clarified and finalized by the Director of Fisheries and pursuant to the letter dated 23.7.1992 (Annexure-3) instruction was issued to all the Chief Executive Officers of the State for opening of G.P.F. and C.P.F. amount. Pursuant to the said instruction, the Chief Executive Officer, F.F.D.A., Ganjam communicated a letter to the Accounts Officer, Directorate of Fisheries on 9.10.1992 regarding opening of the G.P.F. account number of the petitioner. 3. Learned counsel for the petitioner vehemently argued that the petitioner has rendered service in different establishments under the State Government and thus, he is entitled to get gratuity under the Payment of Gratuity Act, 1972, in short, “the Act”. 4. Learned Addl. Government Advocate appearing on behalf of opposite party no.2 submitted that pursuant to the earlier orders of this Court, the opposite party no.2 has filed counter affidavit stating inter alia, that the petitioner does not come within the ambit of the Act after a lapse of almost ten years inasmuch as the provisions enshrined under the Act clearly reveals that the said Act is only applicable to shop or establishment in the State in which ten or more persons are employed or where employed on any date of the preceding twelve months. It is further emphatically stated that FFDA is a Society under the Society Registration Act and at best may be treated as an establishment within the meaning of the Act, then also the petitioner is not entitled to gratuity under the Act. That apart, at the relevant point of time required number of employees were not serving under the said establishment. It is also stated in the affidavit that the petitioner has rendered nine years 11 months, 22 days of service in different establishments of the State Government, but the petitioner is not entitled to get benefits of such employment under the Act, inasmuch as after being terminated from Government service, he was appointed afresh under the FFDA, which is a Society under the Society Registration Act having its own bye laws. That apart, at the relevant point of time, the establishment had never employed ten or more employees. Thus, the provision of the Act is not applicable to the case of the petitioner. 5. It is the admitted case of both the parties that the petitioner is claiming payment of gratuity for the period of his service rendered as Junior Clerk under the Fish Farmer Development Agency, Ganjam, which is controlled, managed and funded by the Government of Orissa in the Department of Fisheries. He has served in that department from 14.9.1976 to 31.8.1999, meaning thereby that he has served 22 years, 11 months and 17 days. The petitioner was initially appointed as L.D. Clerk on 22.7.1964 by the Collector, Ganjam in the regular establishment of the Collectorate and accordingly posted under Kodala Tahasil. This fact is borne out from the document Annexure-1, which is a letter pertaining to the initial appointment of the petitioner. However, after 12 years of regular service, he along with other regular staff was retrenched and thereafter a writ was preferred before this Court challenging the order of retrenchment and they were again reinstated in regular establishment of the Collectorate, Ganjam, but the petitioner was not brought back to the regular establishment of the Collectorate, Ganjam and the Collector while exercising his power as Chairman of FFDA, appointed the 2 petitioner as Junior Clerk under the FFDA on 14.9.1976. The appointment order is available on record as Annexure-2. 6. After having gone through the Orissa Ministerial Service Regularization of Recruitment and Conditions of Service of Irregular Recruits in the office of Heads of Department, District Offices and Subordinate Offices) Rules, 1975, I find that as per clause 3 of the said Rules, an irregular recruit shall be deemed to have been validly and regularly recruited and appointed as an Assistant or Clerk, as the case may be. In the present case, the petitioner’s services have been validated, which was rendered earlier with effect from 22.7.1964 to 7.9.1976. As per the stand of the opposite parties, FFDA, Ganjam is having less than 10 number, which is a requirement under the Act to extend the benefits of the Act. But this fact has been challenged by the petitioner by filing a rejoinder and along with the rejoinder he has placed on record Annexure-A/1, which clearly spells out that when the agency was formed, the Government had sanctioned 16 posts to form the FFDA, which was fully controlled, funded and managed by the Director of Fisheries and Department of Fisheries. Apart from this, the petitioner also placed on record an additional affidavit dated 19.1.2011 regarding sanction of 16 nos. of posts by the Government of Orissa in Fisheries and Animal Husbandry Department. Moreover, in Annexure-E/1 of the additional affidavit, it is clearly stated in Para-2 of the letter that the Government has been pleased to sanction posts for formation of FFDA, Ganjam and it has been concurred by the Finance Department vide letter dated 7.6.1976. In the said letter 16 nos. of posts were created and sanctioned for functioning of FFDA, Ganjam. In view of this, it is crystal clear that the contention of the opposite parties is against record and the same is not liable to be accepted. After having gone through the Act, I find that as per Section 1 (3-A) of the Act, a shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten. Therefore, seen from every angle, the claim of the petitioner is protected. According to Section 2(e) of the Act, the petitioner is an employee as defined under the Act. As per the definition, any person in any establishment, factory, mines, oil field, plantation etc. to do any skilled semi skilled, unskilled, manual, supervisory, chemical or clerical works are governed under the Act. The petitioner is a retired clerk in the FFDA, Ganjam. He attained at the age of superannuation on 31.8.1999. His retirement order is available on record as Annexure-5. Learned counsel for the petitioner has rightly pointed out that the other agencies of the State like Orissa Renewable Development Agency, State Urban Development Agency, Integrated Tribal Development Agency and District Rural Development Agency have formulated the service regulation by incorporating Payment of Gratuity Act. It is settled law that the applicability of Payment of Gratuity Act is one of the minimum service condition made available to employees and it is constitutionality valid. The Act is a welfare measure introduced in the interest of the workman to securer economic justice and to have a sustenance after his retirement. The authorities are under legal obligation to extend the benefit to an employee as the right to pension and gratuity and the same has been considered as a fundamental right under Article 19 (1) of the Constitution. It is well settled that the retired employee of a particular establishment belong to one homogenous class. The employer must not create heterogeneity in extending the benefit to some and denying the others, which is hit by Articles 14 and 16 of the Constitution of India. 3 7. In view of what has been discussed above, I find that the petitioner is entitled to gratuity as admissible to him under the Payment of Gratuity Act, 1972. Accordingly, the opposite parties are directed to calculate the amount of gratuity payable to the petitioner for the period of service rendered under FFDA, Ganjam, i.e., from 24.9.1976 to 31.8.1999 and the same be disbursed to him within a period of two months from the date of receipt of a copy of this order after deducting the amount of gratuity already paid. Before I part with this order of mine, I may observe that it is the duty of the Government to release such amounts at the earliest. Grant of gratuity is not a bounty but a right of the Government servant. Delay in settlement of such benefit is frustrating and must be avoided at all costs. This is indeed unfortunate. The case before this Court is a clear example of departmental delay, which is not excusable. The petitioner retired on 31.8.1999 and it was only after 11.1.2010, the date when the interim order was passed in this writ petition, a sum of Rs.10,000/- was paid by the Government. The amount was due to the petitioner, but even then it is being denied without any valid reason. It is crystal clear that gratuity was not paid to the petitioner well in time and the payment of gratuity with or without interest, as the case may be, does not lie in the domain of discretion of its statutory compulsion. The benefit of gratuity can not be denied in the instant case as discussed above. It is a valuable right of the petitioner to get gratuity and any delay in payment of gratuity must be visited with payment of penalty of interest. In the instant case, the petitioner attained the age of superannuation on 31.8.1999 and so far after lapse of eleven years, he has not received payment of gratuity. Payment of gratuity amount was required to be paid to the petitioner on the date when he retires or on the following day. The instant case is a glaring instance of such culpable delay in payment of gratuity amount due to the petitioner, who retired on 31.8.1999. Keeping in view all the facts and circumstances of the case, it is made clear that the petitioner would be entitled to interest at the rate of nine per cent per annum from the date of filing of the writ petition, i.e. 22.07.2009 till payment of gratuity amount. With the aforesaid observation and direction, the writ petition is allowed. No cost. Writ petition allowed. 4