In the case of workmen who are governed by the Central Civil Services (Pension) Rules, the applicability of the Gratuity Act has to be considered: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25th November 2021 W.P.(C) 13330 2021 & CM APPL. 41999 2021 MANAGEMENT OF CPWD Through: Ms. Sarika Singh Advocate. ..... Petitioner Through: None. SH BHORI LAL & ORS. JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.1. This hearing has been done in physical Court. Hybrid mode is Respondents permitted in cases where permission is being sought from the Court. The present writ challenges the impugned order passed by the Appellate Authority under the Payment of Gratuity Act 1972 dated 23rd February 2021 in Gratuity Appeal No. 36(08) 2021 P.A.DYV. The said appeal was dismissed on the ground of delay as being beyond limitation in terms of Section 7(7) of the Gratuity Act. The original impugned order by the Controlling Authority bearing No. ALC II 36(25) 2016 dated 25th August 2020 awarded a sum of Rs.2 38 430 along with simple interest at 10% to the Workman from the exact date of retirement of the Workman till the date the amount of gratuity The submissions of Ms. Sarika Singh ld. Counsel appearing for the actually paid. Petitioner are three fold: i) that the delay ought to have been condoned and the matter ought to be heard on merits ii) that the Gratuity Act would not apply and the Central Civil W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 ServicesRules 1972would be applicable to the Workman and that there is no evidence of the Workman having worked with the Petitioner for a period of eight years and eight months. Thus she submits the award of the said amount by the Controlling Authority is untenable. This Court has in Union of India v. Ramesh Chand 6115 2021 decided on 6th July 2021] taking into consideration the decision in Union of India v. Manik Lal Banerjee 9 SCC 643 held that in the case of workmen who are governed by the CCS Rules the applicability of the Gratuity Act would have to be considered by the Authorities concerned. The observations in the said judgment are set out below: The issue relating to non applicability of the provisions of the Payment of Gratuity Act 1972 and the applicability of CCS Rules to the Respondents has not been considered either by the Controlling Authority or the Appellate Authority. The Appellate Authority has simply rejected the appeal as being barred by limitation. A perusal of the Appeal filed shows that there is a specific ground that the Respondent is governed by the CCS Rules. The relevant provision of the Payment of Gratuity Act 1972 is extracted below: “Section 2. Definitions. In this Act unless the context otherwise requires e) "employee" means any person employed on wages in any establishment factory mine oilfield plantation port railway company or shop to do any skilled semi skilled or unskilled manual supervisory technical or clerical work whether the terms of such employment are W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 express or implied and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.” The Supreme Court in Union of India v. Manik Lal Banerjee 9 SCC 643 in a case concerning an employee of applicability of Section 2(e) of the Payment of Gratuity Act 1972 and held as under: the Railways considered inter alia “10. The 1972 Act was enacted to provide for a employees in relation to railway companies. 11. Section 2(e) of the 1972 Act defines “employee” to mean for payment of gratuity unskilled “any person employed on wages in any establishment factory mine oilfield plantation port railway company or shop to do any skilled manual semi skilled supervisory technical or clerical work whether the terms of such employment are express or implied and whether or not such person is employed in a managerial or administrative capacity but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity”. The definition thus excludes an employee holding a civil post under the Central Government and governed by another Act or Rules providing for gratuity. Thus the Supreme Court held that a Railway employee would be governed by the specific Rules applicable to employees of Railways and not by the Payment of Gratuity Act 1972 in view of the express exclusion in Sec. 2(e) of the Act. W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 “11. Considering the fact that the jurisdiction of the Controlling Authority itself is being disputed by the Union of India this Court is of the opinion that the said issue deserves to first be considered by the Appellate Authority as it goes to the root of the matter itself. If the Controlling Authority did not have jurisdiction under the Payment of Gratuity Act 1972 the order would be liable to be challenged by the Union of India and the period of limitation prescribed under the Act may not apply. In these circumstances the issue of jurisdiction having been raised this Court is of the opinion that the said issue ought to be adjudicated by the Appellate Authority under the Payment of Gratuity Act 1972 and the Appeal ought not to be rejected simply on the ground of being barred by limitation. In view of the above discussion the following directions are issued: The matters are remanded back Appellate Authority under the Payment of Gratuity Act 1972. The delay in filing the appeal by the Union of India before the Appellate Authority shall stand condoned and shall not come in the way of the issue as to applicability of the Act from being adjudicated. The appeals shall be heard on the issue of jurisdiction raised by the Union of India considering the legal position as held in Union of India v. Manik Lal Banerjeeof the payment of Gratuity Act 1972 excludes the employees of the Central Government and State Government receiving pension and gratuity under the Pension Rules but not an employee of the Municipal corporation of Delhi.” These are legal issues which go to the root of the matter. The legal W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 issues raised by the Petitioners deserve to be adjudicated upon by the Appellate Authority. The delay of approximately four months in filing the appeal before the Appellate Authority is accordingly condoned. Notice is not being issued to the Workman in this matter as that would lead to further costs to the Workman. Accordingly the delay is condoned with payment of Rs.10 000 as costs to the Workman by the Petitioner on the first date of hearing before the Appellate Authority. Subject to such payment being made to the Workman in time the appeal shall be adjudicated upon by the Appellate Authority on merits keeping in mind the grounds raised by the Petitioner and the facts discussed herein above as also the judgment cited above. The Appellate Authority to dispose of the matter within a period of three months from the first date of hearing after dealing by the all ground raised by the Petitioner. Let the Petitioner and Workman appear before the Appellate Authority on 6th January 2022. Copy of this order be communicated to the Appellate Authority under the Payment of Gratuity Act 1972 & Dy. Chief Labour Commissioner Central) Government of India Ministry of Labour & Employment 4th Floor Jeevandeep Building Parliament Street New Delhi 110001. 10. Copy of this order be communicated to the Workman by the Registry 11. With these observations the petition with all pending applications is as also by the Petitioner. disposed of. PRATHIBA M. SINGH NOVEMBER 25 2021 MR MS W.P.(C) 13330 2021 Digitally Signed By:DEVANSHUJOSHISigning Date:26.11.2021 15:47:19 

Summary: The Hon’ble High Court of Delhi, while referring to the judgments in the case of Union of India v. Ramesh Chand [W.P.(C.) 6115/2021 and Union of India v. Manik Lal Banerjee, (2006) 9 SCC 643, through a learned bench of Justice Prathiba M. Singh, upheld that in the case of workmen who are governed by the CCS Rules, the applicability of the Gratuity Act would have to be considered by the Authorities concerned, in the case of Management Of CPWD Vs Sh Bhori Lal &amp; Ors. [W.P.(C) 13330/2021 &amp; Cm Appl. 41999/2021]. The writ challenged the impugned order passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (hereinafter “Gratuity Act”) dated 23rd February, 2021 in Gratuity Appeal No. 36(08)/2021 P.A.DYV. The said appeal was dismissed on the ground of delay as being beyond limitation in terms of Section 7(7) of the Gratuity Act. The original impugned order by the Controlling Authority, bearing No. ALC II 36(25)/2016 dated 25th August, 2020, awarded a sum of Rs.2,38,430/- along with simple interest at 10% to the Workman, from the exact date of retirement of the Workman till the date the amount of gratuity actually paid. The submissions of Ms. Sarika Singh, learned Counsel appearing for the Petitioner were three-fold: (i) that the delay ought to have been condoned and the matter ought to be heard on merits; (ii) that the Gratuity Act would not apply and the Central Civil Services (Pension) Rules, 1972 (hereinafter “CCS Rules”), would be applicable to the Workman; and (iii) that there is no evidence of the Workman having worked with the Petitioner for a period of eight years and eight months. Thus, she submitted that the award of the said amount by the Controlling Authority was untenable. The Hon’ble Court, after hearing the parties and a perusal of the record, stated that “This Court has in Union of India v. Ramesh Chand [W.P.(C.) 6115/2021, decided on 6 th July, 2021], taking into consideration the decision in Union of India v. Manik Lal Banerjee, (2006) 9 SCC 643, held that in the case of workmen who are governed by the CCS Rules, the applicability of the Gratuity Act would have to be considered by the Authorities concerned. These are legal issues which go to the root of the matter. The legal issues raised by the Petitioners deserve to be adjudicated upon by the Appellate Authority. The delay of approximately four months in filing the appeal before the Appellate Authority is accordingly condoned. Notice is not being issued to the Workman in this matter as that would lead to further costs to the Workman. Accordingly, the delay is condoned with payment of Rs.10,000/- as costs to the Workman by the Petitioner, on the first date of hearing before the Appellate Authority. Subject to such payment being made to the Workman in time, the appeal shall be adjudicated upon by the Appellate Authority on merits keeping in mind the grounds raised by the Petitioner and the facts discussed herein above, as also the judgment cited above. The Appellate Authority to dispose of the matter within a period of three months from the first date of hearing, after dealing by the all ground raised by the Petitioner. Let the Petitioner and Workman appear before the Appellate Authority on 6th January, 2022.”