HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND HONOURABLE SRI JUSTICE SANJAY KUMAR W.A.No.2380 of 2005 JUDGMENT: (Per. Hon’ble Sri Justice Ghulam Mohammed) This Writ Appeal under Clause 15 of Letters Patent is directed by the appellant against the order dated 13.07.2005 passed by a learned Single Judge of this Court allowing W.P.No.21291 of 1999 filed by the respondent herein. The case of the respondent-writ petitioner is that he retired from service as Deputy Executive Engineer with effect from 31.01.1999 under Voluntary Retirement Scheme introduced in the appellant-MARKFED. It is stated that by the proceedings of the appellant dated 06.09.1999, all his retiral benefits were released, but pension and other benefits were reduced on the ground that he was under suspension during the interregnum period from 12.3.1985 to 08.04.1985 and 13.09.1985 to 08.11.1990. It is further stated that a peculiar stand has been taken by the appellant- MARKFED stating that the writ petitioner is not entitled to reckon the service rendered by him during the said period for the purpose of retiral benefits under the Voluntary Retirement Scheme for the reason that he did not work during that period, though 100% of the salary was paid to him for the said period. Therefore, the respondent-writ petitioner filed the writ petition seeking a Mandamus declaring the proceedings dated 06.09.1999 issued by the appellant-MARKFED in not paying the exgratia during the period of suspension and also the gratuity in accordance with the provisions of the Payment of Gratuity Act, 1972, as arbitrary and illegal and consequently sought for a direction to the appellant- MARKFED to pay the exgratia during the period of suspension i.e., 12.3.1985 to 08.04.1985 and 13.09.1985 to 08.11.1990 under the Voluntary Retirement Scheme and also the difference of gratuity together with interest. By an order dated 13.07.2005, a learned Single Judge of this Court allowed the present writ petition directing the appellant- MARKFED to treat the period from 12.3.1985 to 08.04.1985 and 13.09.1985 to 08.11.1990 as continuation period for the purpose of reckoning the benefits (exgratia etc.,) under the Voluntary Retirement Scheme under which the writ petitioner retired with effect from 31.01.1999 and also to pay the gratuity to the writ petitioner as per the provisions of the Payment of Gratuity (Amendment) Act, 1998, within a period of three months from the date of receipt of a copy that order, with interest at 6% per annum on the gratuity amount to which he is entitled to, from the date it became payable till the date of payment in view of the judgment of the apex Court in H.Ganga Hanume Gouda v. Karnataka Agro Industries Limited (2003 (4) SCC 40). Learned Counsel for the appellant contended that the respondent-writ petitioner is seeking continuity of service with regard to the period of suspension and is also claiming his retirement benefits after a period of 9 years, and that the learned Single Judge, without properly appreciating the undertaking letter dated 23.10.1990 given by the respondent-writ petitioner, has allowed the writ petition. He further contended that as per service regulations under Clause 56.1.0, the gratuity shall be payable to an employee as per the A.P. Payment of Gratuity Rules 1972 and as amended from time to time. He further contended that in the instant case the respondent-writ petitioner has already retired from service prior to the issuance of G.O.Ms.No.157 dated 16.09.1999 and as such he is not entitled to the benefits available under the said G.O. He further contended that the appellant-MARKFED has implemented the said G.O. with effect from 04.06.2002 as per the directions in G.O.Ms.No.206, wherein it was specifically mentioned that the said G.O. would have prospective effect. He further contended that the learned Single Judge erred in following the judgment passed in W.P.No.30307 of 1997, in which case, the Board of Directors resolved to apply the provisions of the Ordinance with effect from 24.09.1997, whereas in the instant case, there is no such resolution passed by the Board of Directors to pay gratuity as per Payment of Gratuity Act, 1972. Per contra, the learned Counsel for the respondent-writ petitioner submits that the order of the learned Single Judge is quite legal and valid and in that view of the matter, no interference is called for. After hearing the learned Counsel for the parties and perusing the impugned order and other material available on record, we are of the considered view that the learned Single Judge has rightly held that the fact as to the continuation of the service of the respondent-writ petitioner from 12.3.1985 to 08.04.1985 and 13.09.1985 to 08.11.1990 was concluded under the proceedings of the appellant dated 27.10.1990 itself and therefore the contention of the appellant that the respondent-writ petitioner is not entitled for the pensionary benefits for the said period cannot be sustained. Insofar as the entitlement to the gratuity under the Payment of Gratuity (Amendment) Act, 1998 is concerned, the learned Single Judge in a similar Writ Petition No.7362 of 1999 held that the provisions of the Payment of Gratuity (Amendment) Act, 1998 under which the gratuity is enhanced from Rs.1.00 lakh to Rs.3.50 lakhs are applicable with effect from 24.09.1997. The appellant did not deny that the said Act is not applicable to the respondent-writ petitioner. Further, the learned Judge rightly held that when it is not the case of the appellant-MARKFED that they are supposed to pay the gratuity as is applicable to the Government employees, adopting the provisions of the Amendment Act with effect from 04.06.2002 does not arise. The employees of the appellant are governed by the provisions of the Payment of Gratuity Act and the Rules made thereunder by the State Government, but that itself does not mean that they can adopt the provisions of the Amendment Act from a date which is convenient to them. The Government Orders now filed by the learned Counsel for the appellant are not applicable to the case of the respondent-writ petitioner. Under the aforesaid circumstances, we are of the considered view that the reasoning assigned by the learned Single Judge of this Court is quite legal and justified and, therefore, we do not find any reason to interfere with the impugned order passed by the learned Single Judge. The Writ Appeal, therefore, fails and is accordingly dismissed upholding the impugned order of the learned Single Judge. No order as to costs. __________________________ GHULAM MOHAMMED, J ____________________ SANJAY KUMAR, J 14.09.2011 Gsn.