1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1005 OF 2005 Food Corporation of India Through regional manager (Maharashtra) Regional Office Mistry Bhavan, Dinshaw Wachha Road, P.B.NO.11055, Churchgate, Mumbai 400 020. ..Petitioners. V/s.. 1. Shri Ramchandra Ganpat Isawe Asst.Manager(Gen)F.C.I.(Retd.) 508, Mhada Duplex Row Houses Colony, Kharadi Road, Chandan Nagar, Pune 411 014. 2. Assistant Labour Commissioner (Central),Pune. 1,Kaul Building, Gurunanak Nagar, Shankarseth Road, Pune 411 042. 3. Regional Labour Commissioner (Central), Shramraksha Bhawan, Sion, Mumbai 400 022. 4. Collector of Mumbai Old Custom House, Fort, Mumbai 400 023. ..Respondents. Mr.V.P.Vaidya appointed as an amicus curiae for respondent No.1. Mr.S.S.Joshi, AGP for Respondent Nos. 2 to 4. CORAM: A.M.KHANWILKAR,J DATE : JUNE 17, 2009. 2 P.C.: 1. Heard MrVaidya, who was appointed as amicus curiae for Respondent No.1. None appears for the Petitioners. In absence of the Petitioners’ advocate this Court has no option, but to proceed with the hearing of the case, with the assistance of the learned amicus curiae. 2. The Learned amicus curiae and Advocate for the Respondent Nos. 2 to 4 have invited my attention to the relevant documents and the opinion recorded by the Controlling Authority under the Payment of Gratuity Act, 1972 and Assistant Labour Commissioner (Central) Pune by his order dated 29th December, 2003 and 3. Briefly stated, the Respondent No.1 was employed, since 18th March, 1961, in the office of the Regional Director of Food Department, which is stated to be Central Government department. In due course, his services were transferred to Petitioner FCI on 1st March, 1969. Since then he continued in service of FCI till the date of retirement on 31st August, 1996. The department computed gratuity amount on certain assumption. However, on the representation made by the Respondent No.1, the Controlling Authority under Payment of Gratuity Act examined 3 the grievance of the Respondent No.1. It was noticed that the Respondent No.1 before retirement had rendered service of 35 years 5 months and 13 days. That fact is noted in the application submitted on 13th August, 2002. This basic fact has not been disputed. The controversy arises out of the interpretation put forth by the Petitioner and that given by the Controlling Authority under P.G.Act. The Controlling Authority was of the view that the case of the Respondent No.1 was covered by FCI(DCRG) Regulation as were applicable at the relevant time. Moreover, keeping in mind the rigours of section 4(5) of the Payment of Gratuity Act, 1972, it opined that the Respondent No.1 cannot be deprived of the better option available to him as per the said regulations on the date of his retirement. Considering that position, the Controlling Authority came to the conclusion that the gratuity for a maximum of 33 years comes to Rs.1,83,150/-, which is more beneficial to the Respondent No.1 because of the ceiling limit of DCRG at the relevant time was up to Rs.2,50,000/-. Invoking that principle, the Controlling Authority held that the Respondent No.1 was entitled for difference of gratuity amount which is payable under FCI(DCRG) Regulations and ordered that the same be paid to the Respondent No.1 under the provisions of Clause (5) of Section 5 of P.G.Act, 1972. The Petitioner however, contends that the said regulation underwent amendment with effect from 24th May, 1994. However, what is overlooked is the fact that 4 the said amendment notification was gazetted only on 21st July, 1998 much after the Respondent No.1 retired from service on 31st August, 1996. In other words, on the date when the Respondent No.1 retired from the service, the amended provisions were not in force. Indeed, on account of publication of official gazette on 21st July, 1998, the amendment has been given retrospective effect from 24th May, 1994. However, this aspect has been considered by the Controlling Authority. It has observed as follows: “ In the light of the facts & circumstances of the case, I have gone through the circular of the Head Office and in pursuance of those circular I would like to refer to the circular No.1996 dt.21.11.96 wherein the O.P. has stated that consequent to the amendment of FCI(DCRG) Regulation have become redundant but there are facts on the record that the amendment notification was published in the gazette on 21.7.98 and though the rescinded provisions was given retrospective effect w.e.f. 24.5.94 but during the period between 24.5.94 to 21.7.98 the benefits of gratuity under FCI(DCRG) Regulation have also been extended because of the fact that during that period the gratuity under P.G.Act, 1972 may sometime become less favourable because of maximum ceiling limit of Rs.1,00,000/- & on the other side those employees who have rendered long period of continuous services specially food transferee the FCI DCRG Regulations were more beneficial for the purpose of gratuity. The O.P. Has continued to extend these favourable benefit to those existing employees. Further, the O.P. In their circular No. 5 25/97 has further clarified the issues related with payment of gratuity under P.G.Act, 1972 & FCI DCRG Regulations. On perusal of the contents of the circular, it has been revealed that the employees who have joined on or after 24.5.94 are to be governed by the P.G.Act, 1972. Further, at point no.3 in this regard the O.P. has held the views that favorable benefits shall continue to be extended to the existing employees covered under FCI(DCRG) Regulations 1967. In view of the above mentioned facts, I could observe that beneficial provisions under FCI DCRG Regulations have been continuously made available to existing employees who were covered under the FCI DCRG Regulations. The case of the applicant who was an employee of erstwhile food department was absorbed in the service of FCI w.e.f. 1.3.69 was obviously covered under the FCI(DCRG) Regulations prior to the date of P.G.Act, 1972 which came into force on 16-9-72 and obviously the establishment has paid gratuity under FCI DCRG Regulations and under the P.G.Act, 1972 where ever it has been favourable be provided better terms of gratuity under provisions of clause (5) of Section 4 of th P.G.Act, 1972. In the instant case, the O.P. has calculated that gratuity of the applicant by considering the past continuous 35 years of serve under P.G.Act, 1972 which come to Rs.2,24,135/- but due to the minimum ceiling of gratuity under clause (3) of Section 4 at Rs.1,00,000/-. The O.P. paid him that only on the other side under FCI (DCRG) Regulations which was also applicable to the applicant. The gratuity for a maximum of 33 years comes to Rs.1,83,150/- which is more beneficial to the applicant as because the ceiling limit of DCRG was Rs. 2,50,000/- at that time.” 6 In my opinion, the view so taken by the Controlling Authority is unexceptionable. No interference in exercise of writ jurisdiction is warranted. 4. There is yet another aspect that needs to be addressed. The present Petition not only questions the correctness of the order passed by the Controlling Authority but also the order passed by the Appellate Authority. The Appellate Authority has dismissed the appeal preferred by the Petitioner, for having failed to comply with the requirement of predeposit in terms of Section 7(7) and 18(3) of the P.G.Act of 1972. Insofar as that view taken by the Appellate Authority, no fault can be found. For, it is not the case of the Petitioner that requisite amount was in fact deposited. Thus understood, no interference in exercise of writ jurisdiction is warranted. Hence, the Petition is dismissed with costs. 5. The Court expresses word of gratitude for the able assistance given by Mr.Vaiday, who was appointed as amicus curiae. (A.M.KHANWILKAR,J)