1 lpa71.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD LETTERS PATENT APPEAL NO. 71 OF 2010 IN WRIT PETITION NO. 7487 OF 2009 The Parbhani District Central Cooperative Bank Ltd. Through its General Manager ...Appellant VERSUS The State of Maharashtra and others ...Respondents ..... Shri S.T.Ghute, advocate for the appellant Shri R.P.Phatake, A.G.P. for respondent nos. 1 and 2 Shri R.S.Baviskar, advocate for respondent no.3 ..... W I T H LETTERS PATENT APPEAL NOS. 72, 73,74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131 and 133 OF 2010. ..... S/Shri S.T.Ghute, V.D.Hon, S.R.Yadav, advocates for the appellants in all L.P.As. S/Shri R.P.Phatake, S.K.Kadam, V.D.Godbharle and V.D.Rakh, A.G.Ps. for respondent nos. 1 and 2 in L.P.As. S/Shri R.S.Baviskar, Pradeep Deshmukh, Y.R.Barhate advocates for respondent no.3 in all L.P.As. ..... 2 lpa71.10 CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 7th December, 2010 PER COURT : 1 Heard learned counsel for the respective parties. 2 This group of Letters Patent Appeals is directed against the order passed by the learned Single Judge in batch of Writ Petitions, wherein identical issue was raised for consideration of the court. The respondents were employees of appellant-the Parbhani District Central Cooperative Bank. In respect of their claim towards gratuity, after their superannuation, they approached the Controlling Authority and the Assistant Commissioner of Labour, Nanded, as according to them, amount of gratuity was not paid as per the Deed of Variation dated 22.8.1991. The Controlling Authority vide order dated 9.1.2009 allowed the applications holding that the employees were entitled to the amount of gratuity payable at the rate of 30 days of each completed year as per the terms of Deed or Variation dated 22.8.1991, subject to maximum limit of Rs.3,50,000/- as per the provisions of the Payment of Gratuity Act, 1972 (for short, “the Act of 1972”). 3 lpa71.10 3 The appellant preferred the appeals aggrieved by the order passed by the Controlling Authority dated 9.1.2009. The Appellate Authority by judgment and order dated 11.9.2009 dismissed the said appeals. 4 These two judgments and orders were subject matter of challenge by the appellants before the learned Single Judge in petitions filed by the appellants. 5 By the judgment and order, dated 27.11.2009 the learned Single Judge dismissed the Writ Petitions observing that there was no error committed by the Appellate Authority warranting interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India. 6 Learned counsel Shri Hon appearing for the appellants submits that the learned Single Judge committed an error in misreading the judgment of the Apex Court in the case of Beed District Central Coop. Bank Ltd. Vs State of Maharashtra and others, reported at 2007 (1) Mh.L.J. 867. 7 Learned counsel submits that the respondents cannot 4 lpa71.10 select better benefits falling under the scheme and the Act of 1972. In other words, submission of the counsel is that the employee has to opt for either of the benefits falling under the scheme or the provisions of the Act of 1972 and not the best of the terms of the Statute and the Scheme. The counsel further submits that by now, practically the respondents have derived the benefits as ordered by the authorities below. 8 Learned counsel Shri Deshmukh appearing for the respondents places on record copy of Trust Deed/Deed of Variation framed by the Bank in the years 1991, 1998 and 2003. Relevant amendment in the scheme framed in the year 1998 reads as under :- “ In the rules in section II Rule 7(1) the word One month salary for each year of service completed subject to maximum of Rs.150000/- shall be deleted and the word one half month salary for each year of service completed subject to maximum of Rs. 2,50,000/- shall be substituted or as per the amendments made time to time in the maximum payment of Gratuity Act by the Government. “ 9 The counsel submits that the scheme itself provides that in respect of amount of Rs.2,50,000/- the employee was entitled to opt for maximum benefits as provided under the Act of 1972, which 5 lpa71.10 at the relevant time, allowed an employee, payment of amount to the tune of Rs.3,50,000/-. 10 In the submission of the counsel, the authorities below considered the relevant amendment to be discriminatory in nature, as it was found that large number of employees retired from the year 1998 onwards and the amendment brought to the Deed of Variation was to operate to the detriment of the interest of the employees. Therefore, the authorities rightly interpreted these amendments and held that considering the beneficiary legislative purpose behind the scheme and the Act of 1972, the employees were entitled to the benefit of one month’s salary for each completed year subject to maximum amount of Rs.3,50000/-, as provided under Section 4 of the Act of 1972. 11 The counsel further submits that the learned Single Judge considered all these aspects of the matter and confirmed the findings of the authorities below. There is no error, much less any glaring error apparent on the face of record in the judgment and order passed by the learned Single Judge warranting interference of this court. 12 The learned counsel places reliance on the observations 6 lpa71.10 made by the Apex Court in the judgment in the case of Beed District Central Coop. Bank Ltd. Vs State of Maharashtra and others, reported at 2007 (1) Mh.L.J. 867. 13 We have perused the orders passed by the authorities concerned, the judgment and order passed by the learned Single Judge and Deed of Variation for the years 1991, 1998 and 2003. We have perused the judgment of the Apex Court (cited supra). In para 13 and 14, the Apex Court in the said judgment observed as follows :- “ 13 We, however, are of the opinion that he said doctrine cannot be said to have any application whatsoever in the instant case. Undoubtedly, the Payment of Gratuity Act is a beneficial statute. When two views are possible, having regard to the purpose the Act seeks to achieve being a social welfare legislation, it may be construed in favour of the workman. However, it is also trite that only because a statute is beneficent in nature, the same would not mean that it should be construed in favour of the workman only although they are not entitled to benefits thereof, (See Regional Director, ESI Corpn. Vs. Ramanuja Match Industries, AIR 1985 SC 278). 14 Applying the “golden rule of interpretation of statute”, to us it appears that the question should be considered from the point of view of the nature of the 7 lpa71.10 scheme as also the fact that the parties agreed to the terms thereof. When better terms are offered, a workman takes it as a part of the package. He may volunteer therefor, he may not. Sub-section (5) of section 4 of the 1972 Act provides for a right in favour of the workman. Such a right may be exercised by the workman concerned. He need not necessarily do it. It is the right of individual workman and not all the workmen. When the expression “terms” has been used. Ordinarily it must mean “all the terms of the contract”. While interpreting even a beneficient setatute, like, the Payment of Gratuity Act,we are of the opinion that either contract has to be given effect to or the statute. The provisions of the Act envisage for one scheme. It could be segregated. Sub-section (5) of section 4 of the 1972 Act does not contemplate that the workman would be at liberty to opt for better terms of the contract, while keeping the option open in respect of a part of the statute. While reserving his right to opt for the beneficent provisions of the statute or the agreement, he has to opt for either of them and not the best of the terms of the statute as well as those of the contract. He cannot have both. If such an interpretation is given, the spirit of the Act shall be lost. Even in Shin Satellite (supra),this Court stated : “27. The proper test for deciding validity or otherwise of an agreement or order is ‘substantial severability’ and not ’textual divisibility’. It is the duty of the Court to sever and separate trivial or technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful 8 lpa71.10 and otherwise enforceable. In such cases, the Court must consider the question whether the parties could have agreed on the valid terms of the agreement had they known that the other terms were invalid or unlawful. If the answer to the said question is in the affirmative, the doctrine of severability would apply and the valid terms of the agreement could be enforced,ignoring invalid terms. To hold otherwise would be : ‘to expose the covenanter to the almost inevitable risk of litigation which in nine cases out of ten he is very ill- able to afford, should he venture to act upon his own opinion as to how far the restraint upon him would be held by the Court to be reasonable, while it may give the covenantee the full benefit of unreasonable provisions if the covenanter is unable to face litigation. ’ “ 14 In the facts of the case, we find that the relevant Clauses of the scheme (Deed of Variation) were considered by the authorities and it was held that they were discriminatory and were not in the interest of the employees. Considering the object behind framing the provisions of the Act of 1972, the learned Single Judge observed in para 13 of the judgment that, “on facts, the judgment of the Apex 9 lpa71.10 Court in the case of Beed District Central Cooperative Bank (cited supra) would not be applicable.“ The learned Single Judge further observed in para 14 that, “in the present cases there was no question of employees seeking part of benefit from the scheme and the beneficial part from the Act”. 15 In the light of these Deeds of Variation, the reasoning adopted by the authorities below and the learned Single Judge, we find that no interference is warranted in the view adopted by the learned Single Judge. We do not notice any glaring error apparent on the face of record for exercising jurisdiction under the Letters Patent. 16 The appeals are dismissed. (SHRIHARI P. DAVARE, J.) (NARESH H.PATIL, J.) dbm/lpa71.10