IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WA.No. 1691 of 2009() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.9489/2006 Dated 19/02/2009 .................... APPELLANT(S): 2ND RESPONDENT ------------------------ THE CHAIRMAN, COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN-682 009. BY ADVS. MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MR.K.JOHN MATHAI MR.P.BENNY THOMAS MR.ANIL D. NAIR RESPONDENT(S): PETITIONER & IST RESPONDENT --------------------------- 1. K.J.JULIUS, AGED 66 YEARS, S/O.K.P.JOSEPH, RETD. ASST.EXECUTIVE ENGINEER, (ELECTRICAL), COCHIN PORT TRUST, RESIDING AT KALLUVEETTIL HOUSE, SAMAJAM ROAD, VADUTHALA P.O., COCHIN-682 023. 2. UNION OF INDIA, REP. BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF SHIPPING (PORTS WING), PARIVAHAN BHAVAN, NO.1 PARLIAMENT STREET, NEW DELHI-110 001. R1 BY ADV.MR.T.C.GOVINDA SWAMY R2 BY ADV. MR.K.R.SUNIL, C.G.C. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1691 of 2009 ---------------------------------------- Dated 1st March, 2010 JUDGMENT Balakrishnan Nair, J. The second respondent in the Writ Petition is the appellant. The first respondent herein was the writ petitioner. The brief facts of the case are the following. The first respondent was an employee of the Cochin Port Trust which is a major port trust constituted under the Major Port Trust Act. The Port Trust invoking its power to frame regulations has adopted the C.C.S. (Pension ) Rules. 2. The first respondent herein retired from service on 30.6.1997. At the relevant time, he was governed by the provisions in the C.C.S. (Pension) Rules concerning payment of gratuity and also by the provisions of Payment of Gratuity Act, 1972 as he was an employee as defined under section 2(e) of the said Act. So, whichever scheme for payment of gratuity was more beneficial to him, he was able to opt it. But, the maximum amount of gratuity payable under the Payment of Gratuity Act, 1972 was only Rs.1,00,000/= up to 24.9.1997. With effect from the said date, it was enhanced to 3.5 lakhs. But, the maximum gratuity payable under the C.C.S. (Pension) Rules and the scheme thereunder applicable to the first respondent was Rs.3.5 lakhs. This enhanced rate was enforced for the employees of the Port Trust with effect from 1.1.1997. Since the first W.A.No.1691/2009 2 respondent retired from service on 30.6.1997, he was entitled to get gratuity as per the C.C.S. (Pension) Rules read with the relevant scheme which is produced as Ext.P1, as modified by Ext.P3. 3. As per the Payment of Gratuity Act, 1972, the amount of gratuity is computed at the rate of 15 days' wages for every completed year of service, provided the employee concerned is having a minimum service of five years. One month's salary is taken as 26 days' wages. Therefore, when wages for 15 days is computed, it will be slightly above half month's wages. But, under the C.C.S. (Pension) Rules, the computation is made with reference to ¼ of the monthly emoluments for every completed six months' service, provided the employee has completed total five years' service. Therefore, the concept of 15 days' wages has no place while computing the benefits under the C.C.S. (Pension) Rules. The relevant rule which deals with payment of gratuity is Rule 50. Sub-rule 5 thereof specifies that the emoluments for the purpose of Rule 50 shall be reckoned in accordance with Rule 33. 4. The first respondent claimed that the ceiling for payment of gratuity should be in accordance with Exts.P1 and P3 read with C.C.S. (Pension) Rules. But, its computation should be made as provided under the Payment of Gratuity Act,1972. Claiming the said relief, the Writ Petition was filed. The appellant resisted the claim. But, the learned Single Judge after hearing both sides allowed the Writ W.A.No.1691/2009 3 Petition. Hence this Writ Appeal. 5. We heard the learned counsel on both sides. The learned counsel for the appellant submitted that the first respondent cannot claim best of both the worlds. If he wants computation as per the Payment of Gratuity Act, he can claim only maximum amount of Rs.1,00,00/-. But, if he wants the ceiling to go up to Rs.3.5 lakhs, as provided in Ext.P1 as modified by Ext.P3, he has to go by the computation provided in Rule 50 read with Rule 33 of the C.C.S. (Pension) Rules. The learned counsel for the first respondent on the other hand submitted that the C.C.S. (Pension) Rules have no application to him, even in the adopted form by the Port Trust. He is governed only by Ext.P1 as modified by Ext.P3. The same provides only the maximum amount of DCRG which could be paid. The said amount should be computed as provided under the Payment of Gratuity Act. 6. The aforementioned contention of the first respondent cannot be accepted in view of Ext.P4 judgment. The case of the first respondent before this Court, when the Original Petition leading to Ext.P4 judgment was heard, was that he is covered by the C.C.S. (Pension) Rules and he should be granted benefits as per the said rules. 7. The grievance raised in that Original Petition was concerning the quantum of DCRG provided under the C.C.S. (Pension) W.A.No.1691/2009 4 Rules. During the pendency of the Original Petition, Exts.P1 and P3 were issued and therefore, the Original Petition was disposed of noticing that the grievance of the first respondent/Petitioner was redressed by the issuance of Exts.P1 and P3. The learned Single Judge, as per Ext.P4, ordered to release the DCRG to the first respondent as per Ext.P3. In view of the above position, the present contention that he is not covered by the computation of DCRG as per the C.C.S. (Pension) Rules cannot be accepted. He cannot have best of the two worlds. He cannot claim the quantum as per the C.C.S. (Pension) Rules and simultaneously claim computation as per the Payment of Gratuity Act. Therefore, the Writ Petition was liable to be dismissed. In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS