SCA/9376/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9376 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================= = BHAVNAGAR MUNICIPAL CORPORATION - Petitioner Versus VASANTBHAI JAYANTILAL SHETH & ORS - Respondents ============================================= = Appearance : MR HS MUNSHAW for Petitioner MR YV SHAH for Respondent No.1 MR.KRUNAL D PANDYA, AGP for Respondents NO. 2 AND 3. ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 18/11/2008 ORAL JUDGMENT Rule. Mr.Y.V.Shah, learned Advocate for the respondent No.1 waives service of notice of Rule and Mr.Pandya, learned AGP waives service of notice of Rule on behalf of respondents SCA/9376/2008 2/4 JUDGMENT No.2 and 3. With the consent of parties, the same is fixed forthwith. 2. The petitioner-Bhavnagar Municipal Corporation has preferred this petition under Article 227 of the Constitution of India challenging the order passed by the Appellate authority, Rajkot on the Gratuity Appeal No.55 of 2007 on 14/03/2008 modifying the order of the controlling authority and ordering payment of gratuity on the basis of taking into account the date of entry into service i.e. 20/06/1959, instead of, 30/06/1967, as contended by the Corporation. 3. The short question involved in this petition is with regard to date of entry in service for counting gratuity and paying the same. 4. Shri Munshaw, learned Advocate for the petitioner contended that the date of entry in service is 30/06/1967 and on that basis the controlling authority has rightly awarded gratuity which order has not been challenged by the Corporation, but as the date of entry as per the say of the respondent No.1 being 20/06/1959, the gratuity amount should have been calculated on that basis and therefore he preferred Appeal No.55 of 2007 challenging the order of controlling authority wherein the appellate authority has been pleased to count 20/06/1959 as a date of entry in the service. He further submitted that on 20/06/1959, admittedly the petitioner was of a tender age and could not have been employed legitimately. The counting of gratuity on that basis would amount to granting gratuity for the 44 years of service which is an alien concept even in the service jurisprudence and therefore the SCA/9376/2008 3/4 JUDGMENT order of the appellate authority requires to be quashed and set aside. 5. Shri Shah, learned Advocate for the respondent No.1 contended that the factum of entry in service on 20/06/1959 is born out from the service record which cannot be denied by the Corporation, however he does not deny that on 20/06/1959 the respondent No.1 was of tender age, but he was still engaged in employment. Despite his tender age in violation of Article 24 of the Constitution of India, let there be a sufficient punishment in form of order for paying gratuity on that basis. Shri Shah submitted that in case the Court is not inclined to accept the submission then at least there ought to have been some enhancement in the rate of interest so as to compensate the delay occurred in paying the gratuity amount. 6. This Court has heard learned Counsel for the parties and has perused the order impugned in the petition. 7. The fact remains to be noted that the respondent No.1 was only 14 years of age on 20/06/1959 and naturally he could not have been employed on regular basis. At this stage, it would not be proper to go into the aspect as to how a tender age of 14 years got an employment in agency of the State violating the rule of law. Be that as it may, principle law of payment of gratuity warrants taking into account the regular service rendered after the proper appointment and in view of this the amount of gratuity ordered to be paid from 20/06/1959 cannot be said to be just and proper so as to sustain under Article 227 of the Constitution of India. The Court would have considered the request for enhancing the rate of interest. SCA/9376/2008 4/4 JUDGMENT However, looking to the facts especially that the appeal is preferred by the opponent which is also contributed in delaying the payment and therefore I am of the considered view that the order of controlling authority is absolutely just and proper and the amount of gratuity alongwith interest mentioned thereunder deserves to be paid without any further delay, if not paid so far. The petitioner is, therefore, directed to make the payment within a period of 21 days from the date of receipt of a writ of this order, failing which the petitioner shall have to pay the amount @ 18 %. 8. With these observations and directions, the petition is partly allowed. Rule made absolute to the aforesaid extent only. (S.R.BRAHMBHATT, J.) sompura