SCA/5627/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5627 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE ========================================================= 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 ? ========================================================= GUJARAT MARITIME BOARD & 1 - Petitioner(s) Versus MUSA OSMAN & 2 - Respondent(s) ========================================================= Appearance : MR HL JANI for Petitioner(s) : 1 - 2. MRS MC THAKKER for Respondent(s) : 1, Ms.Tanuja Kachchhi, AGP for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE Date : 19/02/2008 ORAL JUDGMENT 1. The petitioner – Gujarat Maritime Board approached this Court making following prayers : SCA/5627/1986 2/5 JUDGMENT “(A) quashing and setting aside the impugned orders at Annexure `C' an `D' to the petition; (B) dismissing application no.56/85 filed by respondent no.1 hereinbefore the Controlling Authority at Jamnagar; (C) pending the admission, hearing and final disposal of this writ petition, the Hon'ble Court may be pleased to stay the operation, implementation and execution of the impugned orders at Annexure `C' and `D'; (D) granting such other and further final and/or interim/ad-interim relief to the petitioner as the Hon'ble Court may deem fit in the interest of justice.” 2. Heard learned advocate Mr.Dave on behalf of Mr.Jani for the petitioner, learned advocate Mr.Manoj Popat for respondent no.1 and learned AGP for respondent nos.2 and 3. 3. It appears that petitioner had preferred Special Civil Application No.5628 of 1986 against Bava Suleman and two others on identical facts and the said petition came to be disposed of by an order dated 23.2.2006 by a coordinate Bench of this Court, whereby the petition was allowed by quashing and setting aside the orders Annexure `C' and `D' dated SCA/5627/1986 3/5 JUDGMENT 7.4.1986 and 23.9.1986 respectively. 4. It is also reported unanimously that the order in Special Civil Application No.5628 of 1986 dated 23.2.2006 has attained finality as it is not challenged before the higher Forum. 5. The relevant facts, in brief, are that the respondent No.1-employee approached the Controlling Authority under the Payment of Gratuity Act, 1972 vide Application No.55 of 1985 for additional amount of gratuity on the basis of the claim of continuous service under the petitioner No.2-Port Officer, Bedi Port, Jamnagar. He claimed that he had completed continuous service of more than 31 years before his retirement on 30.6.1981. It was contended before the authority that the employee was paid the due amount of gratuity under the Bombay Civil Service Rules. The authority, therefore, rejected the application as the amount of gratuity was paid and the application was made after four-and-half years. That order dated 6.12.1985 was carried in appeal by the employee and the appeal was allowed by order dated 7.4.1986 remanding the application for decision on merits. Therefore, the Controlling Authority was again called upon to decide the application as though the provisions of the Payment of Gratuity Act were applicable in the facts of the case. Then, the second impugned order dated 23.9.1986 awarding additional amount of gratuity was made on the basis that that Act was applicable to the petitioner No.2 since “Port” was covered by the provisions of sub-section SCA/5627/1986 4/5 JUDGMENT (3) of section 1 of the Payment of Gratuity Act, 1972. 6. It is not in dispute that prior to 5.4.1982, the administration, control and management of minor ports in the State of Gujarat was looked after by the State Government through its Ports Department (Directorate of Ports). Subsequently, Gujarat Maritime Board i.e., the petitioner came to be constituted under the Gujarat Maritime Board Act, 1981 with effect from 5.4.1982 and since then, every employee serving under the State Government immediately before that date became an employee of the petitioner no.1 under the provisions contained in Clause (f) of Sub-section (1) of Section 20 of the Gujarat Maritime Board Act, 1981. 7. Respondent no.1 was working as a Gunner at Bedi Port under the Ports Department and had received all the benefits as such. He came to be retired on 30.6.1981 on his reaching the age of superannuation. He was paid all the retirement benefits as per the Rules applicable to the employees of the State Government. It was contended by Mr.Popat that the order can be challenged before another Forum and petition merits rejection only on the ground of availability of alternative remedy. The petition is of the year 1986 and 22 years have gone by. It would be unfair and improper to invoke the bar of alternative remedy so belatedly. The petition merits acceptance as was found by a coordinate Bench in similar situation. Therefore, in the facts narrated above, the petition stands allowed and orders SCA/5627/1986 5/5 JUDGMENT impugned dated 7.4.1986 and 23.9.1986 at Annexure `C' and `D' respectively are quashed and set aside. Rule is made absolute with no order as to costs. ( A.L.DAVE, J ) srilatha