C.W.P. No.11295 of 1993 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.11295 of 1993 Date of Decision: 19.01.2010 Rattan Lal Gupta, Accounts Officer (retired) ....Petitioner Versus State of Haryana through Secretary and Commissioner Cooperative Department, Haryana, Chandigarh and others ....Respondents Present: Mr. Dinesh Kumar, Advocate for the petitioner. Mr. Ravi Dutt Sharma, DAG, Haryana for respondent No.1. Mr. H.S. Gill, Advocate with Mr. Vivek Goyal, Advocate for respondent Nos.2 and 3. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No ` -.- K. KANNAN J.(ORAL) 1. The petitioner seeks for quashing the order issued on 24.02.1993 by the Managing Director Hafed disposing of the representation that the petitioner would be entitled to gratuity only as per the provisions of the Gratuity Act. While so doing, the gratuity that was paid to the petitioner was counted as though his service commenced from 01.01.1970 to the date when he retired from 31.01.1992. 2. The petitioner's contention is two-fold. One, he had C.W.P. No.11295 of 1993 -2- been employed in Kaithal Cooperative Society since 01.07.1961 and later absorbed with Hafed on 04.01.1973. His contention is that his service must have been counted from 01.07.1961 itself for the purpose of gratuity and it could not have been from 01.01.1970 as done by the respondent. The second contention is that at the time of entery into service, the petitioner was governed by Haryana State Cooperative Supply and Marketing Services (Common Cadre) Rules, 1969 and it provided under Rule 3 that gratuity would be calculated on the amount of months' salary of each completed year of service provided, however, the total amount of gratuity was not exceeded 15 times. According to him, therefore, it was this rule, which ought to have been applied not the Gratuity Act. 3. Responding to the second contention about the applicability of the Cadre Rules, 1969, learned counsel appearing for the respondent states that the 1969 Rules had been repealed by 1988 Rules, which provided that the gratuity would be admissible only as per the provisions of the Gratuity Act. The petitioner had been in service at the time when the 1988 Rule had been enforced and without even a challenge to the Rules in the writ petition, the petitioner cannot contend that the repealed Rules of the year 1969 alone would apply. The contention of the respondent merits acceptance as regards the applicability of the 1988 Rules and the consequent application of the provisions of the Payment of Gratuity Act for the gratuity claimed by the petitioner. C.W.P. No.11295 of 1993 -3- 4. As regards the first contention that the services in Kaithal Cooperative Society must also be counted for the length of service, it should invariably depend on the terms of absorption and how the period of employment of the previous employer were to be reckoned. I obtain no guidance from either side as to what terms of absorption were and whether there existed any particular provision that allowed the petitioner to treat his period of service as commencing from 01.07.1961 itself. According to him, if the contention of the respondent were to be wholly accepted that the period of service would commence from the date when he was absorbed on 04.01.1973, the counting of period from 01.01.1970 itself is inexplicable and therefore, the respondent who has treated even the period anterior to the date of entry into service in Hafed is only arbitrary. In my view, if it is arbitrarily done, it was so done for the benefit of the petitioner. The petitioner cannot have a relief before the Court unless he shows that there were any particular provisions for absorption that provided for the period that he had served with Kaithal Cooperative Society also to be a period of service with Hafed for computation of the retiral benefits. For want of such clear proof before this Court, the petitioner cannot succeed. 5. The writ petition is dismissed. No costs. (K. KANNAN) JUDGE January 19, 2010 Pankaj*