Chattisgarh High Court

Chhattisgarh Rajya Gramin Bank vs Abdul Mateen 2 Wpl/22/2020 ... on 31 August, 2020

Author:
P. Sam Koshy

Bench:
P. Sam Koshy
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (L) No. 55 of 2020

Reserved on 25.08.2020

Delivered on 31.08.2020

Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013
---- Petitioner

Versus

1. Meghraj Pathak S/o Late Dhanraj Pathak R/o At H.No. 15, Sai Baba
Layout, Aghanpur, Jagdalpur, District Bastar, Chhattisgarh

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh
---- Respondents

WPL No. 56 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Mohd. Azam Hussain S/o Late Akbar Hussain, R/o At- Flat No. 104,
Gulshan Apartment, Raja Talab, Raipur, District Raipur Chhattisgarh.
2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh ---- Respondents
WPL No. 21 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013 ---- Petitioner
Versus

1. Abdul Mateen S/o Abdul Mannan, R/o H. No. 76, Near Saint Joseph
Church, Behind Laxmi Gas Agency, Byron Baazar, District Raipur
Chhattisgarh. 492001

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh ---- Respondents

WPL No. 23 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Shri Pramod Kumar Upadhayay S/o Chandu Lal Upadhyay R/o Shiva
Parisar, Kanchangan Ganga Colony, Phase-2, District- Raipur,
Chhattisgarh, 492010

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 24 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013 ---- Petitioner
Versus

1. Mohd. Faruque Khan S/o Late Abdul Razzak R/o At Piyali Foundation,
In Front Of Old Dhanvantari Hospital, Near Tondon Dairy, New Shanti
Nagar, District Raipur Chhattisgarh, 492001

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 25 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Laxmikant Sahu R/o At Qtr. No. 12/1040, Siddheswari Temple Marg,
Kota Raipur, Po - Pt. R.S. University, District Raipur, Chhattisgarh.
2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 26 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus
1. Arun R. Katyayani S/o Shri R. R. Katyayani, R/o 313/39, Near Rani
Laxmi Bai Chowk, Behind Kela Badi Shopping Complex, Kela Badi,
Durg, District Durg, Chhattisgarh. 491001

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 27 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Arun Phansalkar S/o Late Vasant Phansalkar, R/o Plot No. 34,
Rajnigandha Colony, Vidyut Nagar, Durg, District Durg, Chhattisgarh

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 28 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Shri Krishna Lal Singh R/o - At B-202, Housing Board Colony, G.E.
Road, Girls College, District - Durg, Chhattisgarh, 491001
2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 29 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Shri Mohan Lal Kosre S/o Late G.R. Kosre R/o Subhash Nagar, Ward
No-42, Near Shiv Mandir, District- Durg, Chhattisgarh, 490020

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 30 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

---- Petitioner

Versus

1. Shri Hari Pradhan S/o Late Keshav Prasad, R/o Quarter No. 642/ B,
Street No. 36, Smriti Nagar, Post Office- Nehru Nagar, Bhilai, District-
Durg, Chhattisgarh. 490020

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh
3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 60 of 2020

 Chhattisgarh Rajya Gramin Bank Through The Chairman Mahadev
Ghat Road, Sunder Nagar, Raipur, Chhattisgarh

---- Petitioner

Versus

1. Rohit Kumar Chandrakar S/o Late Bhukan Lal Chandrakar R/o At L.I.G.
349/A, Padmanabhpur, Durg, District Durg.

2. The Appellate Authority Under The Payment Of Gratuity Act and The
Deputy Labour Commissioner (C), Government Of India, Ministry Of
Labour And Employment Raipur, Chhattisgarh

3. The Controlling Authority And The Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

WPL No. 61 of 2020

Chhattisgarh Rajya Gramin Bank Through The Chairman Mahadev
Ghat Road, Sunder Nagar, Raipur Chhattisgarh 492013

---- Petitioner

Versus

1. Hasan Mohammed Quraishi S/o Jan Hond. Quraishi R/o At 49/66,
Kasaridih, Durg District Durg Chhattisgarh 491001

2. The Appellate Authority Under The Payment Of Gratuity Act and The
Deputy Labour Commissioner (C), Government Of India, Ministry Of
Labour And Employment, Raipur Chhattisgarh
3. The Controlling Authority and the Assistant Labour Commissioner (C)
Raipur Chhattisgarh

---- Respondents

WPL No. 62 of 2020

Chhattisgarh Rajya Gramin Bank Through The Chairman Mahadev
Ghat Road, Sunder Nagar, Raipur Chhattisgarh 492013, District :

Raipur, Chhattisgarh

---- Petitioner

Versus

1. Sashikant Awadhut S/o Late S L Awadhut R/o At Lig 6, Housing Board
Colony, Bodhghat, Jagdalpur, District Bastar Chhattisgarh

2. The Appellate Authority Under The Payment Of Gratuity Act And The
Deputy Labour Commissioner (C), Government Of India, Ministry Of
Labour And Employment, Raipur Chhattisgarh

3. The Controlling Authority And The Assistant Labour Commissioner (C)
Raipur Chhattisgarh

---- Respondents

WPL No. 69 of 2020

Chhattisgarh Rajya Gramin Bank Through The Chairman Mahadev
Ghat Road, Sunder Nagar, Raipur Chhattisgarh 492013

---- Petitioner

Versus

1. Kishwar Khan W/o Late Mr. Arif Ahmed Khan (Retired), R/o C/o Shri S.
A. Khan, C-57, Gayatri Nagar, Shankar Nagar, Raipur Chhattisgarh

2. The Appellate Authority, Under The Payment Of Gratuity Act And The
Deputy Labour Commissioner (C), Government Of India, Ministry Of
Labour And Employment, Raipur, Chhattisgarh

3. The Controlling Authority And The Assistant Labour Commissioner (C)
Raipur, Chhattisgarh

---- Respondents

For Petitioner : Mr. Kishore Bhaduri, Advocate
For Respondent no.1 : Mr. N. K. Vyas, Advocate

WPL No. 31 of 2020

1. Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

2. The Regional Manager, Chhattisgarh Rajya Gramin Bank, Regional
Office, Raigarh, Mithumude Road, Kabir Chowk, Raigarh, Chhattisgarh.

496001.

---- Petitioners

Versus

1. Lakhan Lal Pandey R/o- Railway Banglapara, District- Raigarh,
Chhattisgarh, 496001

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Regional Labour Commissioner (C)
Bilaspur, Chhattisgarh

---- Respondents

WPL No. 22 of 2020

1. Chhattisgarh Rajya Gramin Bank Through The Chairman, Mahadev
Ghat Road, Sunder Nagar, Raipur, CG 492013

2. The Regional Manager, Chhattisgarh Rajya Gramin Bank, Regional
Office, Raigarh, Mithumude Road, Kabir Chowk, Raigarh, Chhattisgarh,
496001. ---- Petitioners
Versus

1. Ravikant Pandey R/o Sanjay Maidan, Rambhata, District Raigarh
Chhattisgarh, 496001

2. The Appellate Authority under the
Payment of Gratuity Act
& the Deputy
Labour Commissioner (C), Government of India, Ministry of Labour &
Employment, Raipur, Chhattisgarh

3. The Controlling Authority and the Regional Labour Commissioner (C)
Bilaspur, Chhattisgarh

---- Respondents

For Petitioner : Mr. Kishore Bhaduri, Advocate
For Respondent no.1 : Mr. K. N. Nande, Advocate

Hon'ble Shri Justice P. Sam Koshy
Order On Board

1. Since the issue involved in the bunch of writ petitions and the cause of

action also being the same, all these writ petitions are being decided by

this common order.

2. In all these writ petitions the challenge is to the order passed by the

Appellate Authority under the
Payment of Gratuity Act
rejecting the

appeal preferred by the petitioner Bank thereby affirming the order

passed by the Controlling Authority under the
Payment of Gratuity Act
.

(Since the date of passing of the orders by the two authorities i.e. the

Appellate Authority & the Controlling Authority are different, the dates

are not being deliberately mentioned, the contents of all the orders are

identical.)

3. The common facts running all these writ petitions are that the

respondent no.1 in all these writ petitions were officers of the petitioner
Bank. After serving the Bank for a considerable period of time, all the

respondent no.1 officers stood retired on attaining the age of

superannuation on different dates. After their retirement, in the process

of settling their retiral dues, the Bank paid certain amount towards

Gratuity to each of the respondent officers which according to the

respondent no.1/officers was erroneously calculated. According to the

respondent officers, they were entitled for much more than what was

calculated by the petitioner Bank. The respondent no.1/officers

accordingly filed a claim application under the provisions of the

Payment of Gratuity Act
for the difference of gratuity before the

Controlling Authority under the
Payment of Gratuity Act
i.e. the Assistant

Labour Commissioner (Central).

4. After due consideration of the pleadings and contentions put forth on

either side, the learned Controlling Authority vide its order dated

20.02.2019 allowed the application holding that the applicants therein

are entitled for much more gratuity than what has been granted to them

and passed an order. The amount of gratuity in each of the cases is

different that is why this Court is not referring to any fixed amount.

5. The order dated 20.02.2019 passed by the Controlling Authority was

subjected to challenge before the Appellate Authority i.e. the Dy. Chief

Labour Commissioner (Central) located at Raipur. The Appellate

Authority also, after due consideration of the contentions put forth on

either side, affirmed the order of the Controlling Authority thereby

rejecting the appeal of the petitioner Bank. It is these two orders

passed by the Appellate Authority and the Controlling Authority which is

under challenge in these bunch of writ petitions.
6. The main dispute in all the writ petitions so also before the authorities

concerned was, as to what would be the pay which would be taken into

consideration for calculating the amount of gratuity.

7. On consideration of the submissions made by either party to the

dispute, the core issue which needs consideration in these bunch of writ

petitions is whether in the process of quantifying the amount of gratuity

payable to the respondent no.1 officers, the dearness allowance would

be treated as part of pay or not.

8. There are two provisions of law which need to be considered in the

process of deciding the issue involved in these cases. First is the

Payment of Gratuity Act, 1972
which is a central Act (hereinafter

referred as "the Act of 1972"). Second is the Chhattisgarh Rajya Gramin

Bank (Officers & Employees)Service Regulations, 2013 (hereinafter

referred as "the Regulations of 2013").

9. Initially when all the respondent no.1 officers retired from service, the

Bank gave them gratuity of rupees ten lakhs as that was the ceiling limit

under the Act of 1972. Since the provisions under the Act of 1972 as

also the Regulations of the petitioner Bank envisaged a clause that the

Officers shall be entitled for the benefits under that provision which is

more beneficial between the two. Based upon that when the petitioner

Bank calculated the payment of gratuity payable to each of the

respondent no.1 officers, the calculation made under the Regulations of

2013 came to be more than the ceiling limit, therefore, the Bank

decided to pay gratuity to the respondent no.1 officers as per the

calculation under the Regulations of 2013. It is here that the dispute

arose.
10. According to the respondent no.1 officers, while calculating the

total amount of gratuity payable under the Regulations 2013 the

petitioner Bank ought to have taken the dearness allowance received

by the respondent no.1 officers as part of pay which would have

enhanced the total amount substantially.

11.The sole contention raised by the petitioner Bank is that the respondent

no.1 officers can have the option of getting gratuity either as per the

calculation under the
Payment of Gratuity Act
with a ceiling of rupees 10

lakhs or they may avail the gratuity in terms of the Regulations of 2013.

According to the petitioner Bank, there cannot be a situation where the

respondent officers can claim the benefit under both the provisions of

law. In other words, the contention of the petitioner bank is that if the

respondent officers contend that they would get gratuity under the Act of

1972, the mode of calculation would be as provided under the said Act

and taking into consideration the definition of wage as provided under

the Act of 1972. In the alternative if the respondent officers choose and

opt to have the benefit of the Regulations of 2013, the gratuity will be

paid to them strictly in accordance to the mode and method of

calculation as provided under clause 72 of the Regulations of 2013.

12. Learned counsel for the petitioner Bank does not dispute the fact that

as per Sub
Section 5
of
Section 4
of the Act of 1972, an employee is

entitled to receive better terms of gratuity under any award or agreement

or contract with the employer. This in other words means if there is a

scheme more beneficial framed by the employer, the officer/employee

shall be entitled for gratuity strictly in accordance to the provisions of that

beneficial legislation which in this case is the Regulations of 2013.
13. Referring to Clause 72 of the Regulations of 2013 it was

vehemently contended by the learned counsel for the petitioner that the

said provision provides for grant of gratuity to an officer @ one month

pay for every completed year of service and in the event the employee

has more than 30 years of service, he shall also be entitled for an

additional amount @ one half of a months pay for each completed year

of service beyond 30 years.

14. For understanding what actually the 'pay' means, we will have to

take the assistance of the definition as provided under Clause M of

Section 2
which defines pay. According to the petitioner, the definition of

pay under the Regulations of 2013 strictly means basic pay drawn per

month in addition stagnation increments and any part of emoluments

which may specifically be classified as "pay" under the Regulations. It is

also the contention of the petitioner that when the definition of pay

means only basic pay with stagnation increments and emoluments

specifically classified as pay, it means there is a deliberate exclusion of

dearness allowance and therefore, dearness allowance cannot be taken

into consideration for quantifying the amount of gratuity payable to the

respondent No.1 officers.

15.
In support of his contention, the learned counsel for the petitioner Bank

heavily relied upon the decision of the High Court of Bombay in the case

of
Vidarbha Konkan Gramin Bank v. the Appellate Authority and

another
, 2020 SCC on line Bombay 17 wherein the Single Bench of

the Bombay High Court has allowed the petition of the Bank setting

aside the order passed by the Appellate Authority and the Controlling

Authority under the
Payment of Gratuity Act
and has also held that the
expression "pay" as provided under the Regulations of 2013 does not

include dearness allowance along with basic pay.

In addition, the

learned counsel for the petitioner also relied upon the judgment of the

Allahabad High Court in the case of
Baroda Uttar Pradesh Gramin

Bank v. the Appellate Authority
in Misc. Single No. 7163 of 2012

decided on 15.10.2019.

He also relied upon the judgment of the Hon'ble

Supreme Court in the case of
Beed District Central Cooperative Bank

Ltd. v. State of Maharashtra & others
, 2006 (8) SCC 514 wherein the

golden rule of interpretation of statute was considered and it was held

that even if the laws are beneficial legislation or welfare legislation, it

does not contemplate that the claimant can have the liberty of obtaining

the benefits both under the Act as well as under the Regulations.

Referring to paragraph-14 of
the said judgment
counsel for the petitioner

submitted that under the said ratio or principle of law laid down, the

employee/officer can have the benefit of only the provision of law which

he opts for and he cannot have the benefit under both laws.

16. Per contra, learned counsel appearing for the officers opposing the

petitions submits that the Central Act i.e. the
Payment of Gratuity Act

itself provides for an employee to receive gratuity under the more

beneficial scheme if any framed by the employer. In the instant case,

according to the counsel for the respondent no.1, since there is a

Regulation framed i.e. the Regulations of 2013 and there is a mode of

calculation provided, the calculation of gratuity has to be made strictly in

accordance with the provisions of Clause 72 of the Regulations of 2013.

According to him, the term "pay" used in Clause 72 of the Regulations of

2013 includes the basic pay with dearness allowance, increment and
also emoluments which have been specifically classified as part of pay.

According to the counsel for the respondent no.1 officers, on a conjoint

reading of the two definitions of 'emolument' and 'pay', under the

Regulations 2013 it includes basic pay plus dearness allowance.

17.
In support of his contention learned counsel for the officers heavily

relied upon the judgment of the Madhya Pradesh High Court in the case

of
All India Gramin Bank Pensioners Organization Unit Rewa v.

Madhyanchal Gramin Bank and Another
, WP No. 9182 of 2017 and

connected writ petitions decided on 06.09.2018. The said judgment was

further tested before the Division Bench which too affirmed the same in

Writ Appeal No. 1318 of 2018 and other connected writ appeals decided

on 26.02.2019. According to the counsel for the respondent officers,

both these judgments of the Madhya Pradesh High Court was further

taken to the Supreme Court who have also given a stamp of approval by

dismissing the SLP preferred by the Bank.

It was also the contention of

Shri Vyas that the order of the Madhya Pradesh High Court has also

recently been followed by the High Court of Telengana in the case of
B.

N. Nageswara Rao v. Sapthagin Grameena Bank & another
decided

on 07.02.2020.

18. Having heard the arguments put forth on either side it would be relevant

at this juncture to refer to certain provisions of Regulation of 2013 which

is germane for the adjudication of the present dispute. Before going into

the definition of the different terminologies it would be trite at this

juncture to refer to the Clause 72 of the Regulation of 2013 which deals

with the Gratuity:

"72.Gratuity. - (1) An officer or employee shall be eligible for
payment of gratuity either as per the provisions of the
Payment

of Gratuity Act, 1972
(39 of 1972) or as per sub-regulation (2),

whichever is higher.

(2) Every officer or employee shall be eligible for gratuity on,-

(a) retirement,

(b) death,

(c) disablement rendering him unfit for further service as
certified by a medical officer approved by the Bank, or

(d) resignation after completing 10 years of continuous service,
or

(e) termination of service in any other way except by way of
punishment after completion of 10 years of service :

Provided that in respect of an employee there shall be no
forfeiture of gratuity for dismissal on account of misconduct
except in cases where such misconduct causes financial loss to
the bank and
in that case
to that extent only.

(3) The amount of gratuity payable to an officer or employee shall
be one months pay for every completed year of service or part
thereof in excess of six months subject to a maximum of 15
month's pay :

Provided that where an officer or employee has completed more
than 30 years of service, he shall be eligible by way of gratuity
for an additional amount at the rate of one half of a month's pay
for each completed year of service beyond 30 years :

Provided further that in respect of an officer the gratuity is
payable based on the last pay drawn :

Provided also that in respect of an employee pay for the
purposes of calculation of the gratuity shall be the average of
the basic pay (100%), dearness allowance and special
allowance and officiating allowance payable during the 12
months preceding death, disability, retirement, resignation or
termination of service, as the case may be."

19. Plain reading of the aforesaid provisions of law what reflects is that

even the aforesaid clause also clearly stipulates that an officer or an

employee of the Bank shall be entitled for gratuity either under the

Payment of Gratuity Act, 1972
or as per the Sub-Clause 2 of the Clause

72 of the Regulation of 2013 whichever fetches more monetary benefits

to an employee or an officer.
20. Now coming to the mode of calculation as per the sub clause 3 of the

Regulation of 2013 the term "Pay" has been used for the purpose of

calculating the gratuity to an officer. As we can see that it is mentioned

that it shall be one Month's pay for every completed year of service.

That it would be relevant at this juncture to take note of the fact that so

far as the third proviso to Sub Clause 3 of Clause 72 envisages that for

the purpose of calculating the gratuity in respect of an employee pay for

the calculation shall be average of Basic pay, Dearness allowance and

special allowances and officiating allowances payable during the last 12

month's of the service. What is note worthy at this juncture is that the

framers of the said provisions has clearly mentioned that in the case of

an employee it shall be the basic pay with Dearness allowance and

special allowance which means so far as calculation of gratuity for an

officer is concerned, there is no break up of the definition of pay provided

and it is the general term of "Pay" which has been used for calculating

the gratuity. As in the case of an employee the framers of the regulation

could have also specifically said that the calculation of gratuity for an

officer would be one month's of basic pay and other specific allowance.

The fact that they have not specifically held that it would be one month of

'basic pay' rather it is one month of 'pay' means there is a deliberate and

conscious exclusion of term 'basic pay' from Sub Clause 3 of Clause 72

so far as officers are concerned.

21. To further put things straight it would be relevant at this juncture to refer

to the definition of the term 'pay', 'emoluments' and 'salary' under

Regulations 2013.

2(m) "Pay" means basic pay drawn per month by the officer or employee
in a pay scale including stagnation increments and any part of the

emoluments which may specifically be classified as pay under these

regulations;

2(i) "Emoluments" means aggregate of salary and allowances, if any

2(o) "Salary" means aggregate of pay and dearness allowance "

22.As regards, the calculation of gratuity of an officer is concerned it is the

terminology which has been used for quantifying the gratuity which is

relevant. Reading of the definition of 'pay' again does not restrict itself to

the basic pay alone. It clearly indicates that term pay includes basic pay

of an officer including stagnation increment and is also inclusive of any

part of the emoluments which may be specifically classified as pay

under these regulations. This means the emoluments that an officer was

drawing would also have to be treated as part of pay. Now what the term

emolument means, has to be construed from the definition of

emoluments as provided in Clause 2(i) of the Regulation of 2013.

Clause 2(i) again while defining emoluments clearly means the

aggregate of salary and allowances. Now to know what is the aggregate

of salary for deciding the emoluments which could be classified as pay it

becomes necessary for us to know the definition salary as provided

under 2(o) of the Regulation of 2013. As per the 2(o) the term salary

means aggregate of pay and Dearness Allowance.

23.Now from the reading of the Clause 2(i) defining emoluments and 2(o)

defining salary, the adjective "aggregate" has been used. The term

aggregate in common parlance means something which is formed by

combining many. Thus, it would clearly mean that term emolument used

in 2(m) means it is not the one singular component but a combination of

a few or many.
24.Now what is also to be taken note of at this juncture is that the present

writ petition is at the third stage of litigation before reaching the High

Court two other forums or at two other stages firstly before the

Controlling Authority under the
Payment of Gratuity Act
and also before

the Appellate Authority under the
Payment of Gratuity Act
the issue

involved in the case has been considered.

25.Neither in the present bunch of writ petitions nor before the Controlling

Authority or before the Appellate Authority the petitioners have not been

able to show any document by it which could be established that

Dearness Allowance firstly is not an emolument and secondly if at all if it

is an emolument it is not one which has been specifically classified as

pay under Regulation, 2013. The definition of pay under the Regulations

specifically envisages that an emolument unless it may specifically be

classified as pay under these regulations it would not be part of Pay for

calculating Gratuity. This would clearly mean that petitioner Bank when

they decided to pay certain emolument to officers or a category of an

officer or an employee it would simultaneously decide whether it would

form part of pay or not. No such document whatsoever has been

produced by the petitioner Bank in the three stages of litigation.

26.Another aspect which needs to be considered is the fact that if the

framers of the regulation intended that gratuity for the officer were to be

calculated based upon their basic pay alone it would had been simply

reflected in Sub Clause 3 of Clause 72 one month's basic pay for every

completed year of service as is specifically mentioned in the other

proviso of Sub clause 3 for the purpose of calculating gratuity for an

employee. The fact that term pay has been used itself gives sufficient
indication that framers of the regulation intended the general term pay

and it was not just confined to the basic pay alone. This also has to be

seen as a deliberate exclusion of basic pay while framing sub
Section 3
.

In other words, the framers of the regulation had taken the term pay in

broader perspective rather than giving it restrictive or narrow meaning

confined to the term basic pay.

27. It is hear that judgment of the Madhya Pradesh High Court rendered by

the Single Bench in the case of All India Gramin Bank Pensioners

Organisation, Rewa. which needs a reference. Learned Single Bench

of the M.P. High Court while deciding the said case in paragraph 19 to

24 has held as under :-

"(19) The parties are at loggerheads on the meaning of the word "pay".

The officers contended that the word "pay" must be read with

"emoluments" & "salary", whereas, as noticed, the employer's stand

is that only such part of emolument can be treated as "pay" which is

specifically classified as pay. Clause 2(m) shows that "pay" means

basic pay of the officers/employees which includes stagnation

increments and any part of emoluments which may specifically be

classified as "pay" under these Regulations. The definition of

"emoluments" shows that it is aggregate of salary and allowance.

"Salary" includes aggregate of pay and DA.

(20) A microscopic reading of Regulations show that there exists no

provision whereby any part of emolument may specifically be

classified as pay. This expression- any part of emoluments which

specifically be classified as pay needs interpretation. In my view, a

conjoint reading of definition of "pay", "emoluments" & "salary" is

required for proper interpretation of the meaning of "pay" or the said

highlighted expression. It is important to note that "emoluments" is

aggregate of salary and allowance and "salary" is aggregate of pay
and dearness allowance. Thus, said three definitions are deeply

interlinked and correct meaning of said expression can be drawn by

combined reading of said three provisions. The definition of "pay"

refers about emolument, whereas emolument includes salary which

includes pay and dearness allowance. Thus, dearness allowance is

specifically classified and must form part of pay because the said

definitions are closely interwoven. Otherwise, expression leads to

an absurdity and impossibility. Absurdity, inconsistency and

impossibility because in the Regulations there exists no provision

for undertaking such exercise of specially classifying an emolument

as pay.

(21) The settle law is that if the grammatical construction leads to some

absurdity or inconsistency with the rest of instruments, it may be

departed from so as to avoid the absurdity and inconsistency.{See:

AIR 1952 SC 324, [Shamrao vs. District Magistrate,Thana]; 1996

(2) All ER 23, [Imperical Chemicals Industries vs.Colmer] & 2009 (
2)

SCC 1, [Mahmadhusen Abdulrahim Kalota Shaikh v. Union of

India
].

Similar view is taken by Supreme Court in AIR 1998 SC

1070, [R. Rudraiah vs. State of Karnataka] and
AIR 2000 SC 1261,

[Molar Mal vs. Kay Iron Works
]}. Justice CORDOZO said "A judge

must think of himself as an artist, who although he must know the

handbooks, should never trust to them for his guidance; in the end

he must rely upon his almost instinctive sense of where the line lay

between the word and the purpose which lay behind it." {See: Mr.

Justice Cordozo by Learned Hand, 52Harvard Law Review, pp.

361-63}.

(22) This is trite law that statute should not be construed as theorems

of Euclid, but it should be construed with some imagination of the

purposes which lies behind them. It is said by Judge LEARNED

HAND in Lehigh Valley Coal v. Yensavage, 218Fed 547, pp. 552,

553 : 235 US 705 (1915). In the words of Justice Chhinappa Reddy,

J "Interpretation must depend on the text and the context. They are
the bases of interpretation. One may well say if the text is the

texture, context is what gives colour. Neither can be ignored. Both

are important. That interpretation is best which makes the textual

interpretation match the contextual. A statute is best interpreted

when we know why it was enacted.".
{See:
Reserve Bank of India

vs. Pearless General Finance and Investment Co.
,reported in 1987

(1) SCC 424}. Iyer, J opined "to be literal in meaning is to see the

skin and miss the soul. The judicial key to construction is the

composite perception of 'deha' and 'dehi' of the provision."

{See:

AIR 1977 SC 965, [Chairman, Board of Mining Examination and

Chief Inspector of Mines v. Ramjee
]}. In view of principles
laid down

in
the said authorities, the definition, clauses and Regulation 72

must be read conjointly to draw the meaning of second proviso of

Regulation 72 and, more particularly, meaning of "last pay". As per

the text and in the context the aforesaid expression relied upon by

learned senior counsel is used, in my judgment "pay" includes

dearness allowance as it exists as a classification in the definition of

"salary" which has a direct nexus/relation with "emoluments" and

"pay".

(23) The matter may be viewed from another angle. The provision

relating to grant of gratuity is a beneficiary provision. It must be

considered on the anvil of beneficent rule of construction. It is trite

law that in the matter of welfare legislation, especially involving the

work force, the terms of contract and the provisions of law should

be liberally construed in favour of weak. {See:
Workmen of Binny

Ltd. v. Management of Binny Ltd.
, reported in 1985 (4) SCC 325;

Indian Bank vs. K. Usha
, reported in AIR 1998 SC 866.}.

(24) In view of aforesaid analysis, in the considered opinion of this

Court the respondents have erred in not including DA while

calculating gratuity under the Regulations. Thus, respondents are

directed to include DA and recalculate the gratuity of the petitioners

and pay the difference arising thereto to the petitioners within 60
days from the date of communication of this order. Since, employer

has not taken into account the DA for calculating gratuity because

of a genuine interpretation problem which is not based on any other

reasons like lethargy or inaction, I am not inclined to grant interest

on such payment of gratuity to the petitioners."

28.This judgment of the Single Bench has been further tested before the

Division Bench of the M.P. High Court and Division Bench also has put a

stamp of approval by dismissing the Writ Appeal. The bank had also

challenged the two judgments before the Supreme Court in an S.L.P.

where the S.L.P. also got dismissed in limine. The dismissal of the S.L.P.

further makes it clear that Hon'ble Supreme Court also did not find any

absurdity or illegality in the two judgments rendered by the M.P. High

Court which led to the dismissal of the S.L.P. in limine.

29. From the pleadings that have been made by the petitioner-Bank and also on

considering the submissions made on either side, what is not in dispute is the

fact that both the petitioner as well as the respondents accept the fact that the

officers are entitled for gratuity amount whichever is higher in between the

calculation that is made on comparison between the two i.e. under the

Payments of Gratuity Act
or under the Regulation, 2013.

30. The real controversy between the parties is as to the basis of calculation of

the amount of gratuity payable. Since there is no upper ceiling or cap provided

in the regulations like under the
Payment of Gratuity Act
, the officers insisted

that they be paid gratuity under the Regulations by including DA as a

component within the expression Pay as defined under Clause-2M of the

Regulations, 2013. The fact which requires consideration also is that there is

no exclusion of DA reflected in the definition of Pay under the Regulations,

2013. It is here that the definition of emolument becomes more relevant. The

emolument under the definition under 2-I of the Regulations means aggregate
of salary and allowances and what exactly is salary is also defined under 2-O

of the Regulations, 2013 which clearly holds that salary means aggregate Pay

and DA.

31. What needs to be considered now under the given circumstances is, can

expression of Pay as is reflected under the definition clause 2-M of the

Regulations, 2013 mean inclusive of DA or excluding DA ?

32. If we read the definition Clause 2-M of the Regulations, it clearly reflects that

the framers of the said Regulations were of the view that Pay means Basic

Pay plus the emoluments which is classified as Pay. Now what are emolument

which can be classified as Pay. The Bank has not produced any documentary

proof to show what are those emoluments which according to the Bank is

specifically classified as Pay. Under the circumstances, it becomes necessary

to take the definition of emolument and the definition of salary together into

consideration to decide whether the DA would be part of Pay for the purpose

of calculating gratuity.

33. It is here that the Single Bench of MP High Court has clearly held that the

expression Pay, Emolument and Salary are interlinked, interconnected,

interwoven and supplementing each other. This court fully endorses the view

taken by the Single Bench of MP High Court. The view of this court gets

further strengthened from the plain reading of Sub Clause-3 and the three

provisos provided under Clause-72 of the Regulations, 2013.

34. If the framers of the Regulations were of the view that for calculating gratuity

for officers DA was not to be taken into consideration, they would have simply

clarified it in the proviso as has been done in the case of 'employees' which is

reflected in the 3rd proviso where in respect of an employee it has been

specifically held that the gratuity shall be the average of basic pay plus DA

and special allowances, whereas, so far as the officers are concerned, in the

second proviso it has been specifically mentioned that the gratuity shall be
payable based upon the last pay drawn. Emphasis has been given on Pay.

The authorities could have simply held that it would be payable on the basic

pay and those allowances which are part of Pay under the Regulations.

Having not done so, the term Pay would have to be given a broader and wider

interpretation and the said interpretation should always be tilting towards the

weaker section i.e. officers as payment of gratuity is one of those beneficial

legislation enacted for the benefit of the employees and officers.

35. As regards the judgments of Bombay High Court which has been heavily

relied upon by the petitioner-Bank, true it is that the Bombay High Court has

taken a different view than what has been taken by the MP High Court. It is

also undisputed legal position that when there are two conflicting views

available for a court in deciding the matter and if the two conflicting views are

of the same High Court, the option left for this court is for referring the matter

to a larger Bench. However, in case if the conflicting views are of different

High Courts, the Bench has an option of testing and then to endorse a view

from among the two that which is more probable and justifiable. This court

finds the judgment of MP High Court to be more probable in the factual matrix

of the case. Moreover, the judgment of MP High Court has also been tested

before the Division Bench as also before the Supreme Court and before both

the higher forums it has got the stamp of acceptance, unlike in the case of

Bombay High Court where it is not known whether the judgment of the

Bombay High Court has been subjected to challenge further or not. The same

principle also applies so far as judgment of Allahabad High Court is

concerned.

36. There is yet another ground on which this court is reluctant to entertain the

writ petition i.e. the scope of judicial review in exercise of the writ jurisdiction,

while testing an order passed by the quasi judicial authorities, Tribunal and

Labour Courts. It is settled position of law that under
Article 226
of the
Constitution of India while hearing a matter arising out of the Labour Court,

Tribunal and Quasi Judicial Authority, the High Court does not sit as an

appellate authority. It has only the power of superintendence over those

Courts, Tribunals and Authorities.

37. The judicial review does not mean to re appreciate the whole dispute afresh

and reach to a different conclusion when the authorities below has himself

given reasons for reaching to the conclusion that he has arrived at. The

interference by this court in exercise of its power under
Article 226
would

confine itself to the extent of testing the order passed by the appellate

authority and find out whether there is an error of jurisdiction or whether there

is an excess of jurisdiction and also whether there is any perversity in the

findings given by the authority whose order is under challenge.

38. The power of superintendence or the supervisory powers or the power of

judicial review in a petition where the order of Labour Court, Quasi Judicial

Authority or Tribunal is under challenge, has to be sparingly exercised that too

only in the event of there being any error of law. A finding of fact arrived at with

reasons and justification given cannot be upset only because the High Court

finds that there is another view possible. The jurisdiction under
Article 226

cannot be used as revisional power or as appellate powers as the order under

challenge does not arise out of question of violation of the fundamental rights

or violation of any of the constitutional rights, more particularly when there are

provision of appeal provided under the statute and the appellate authority also

has considered these aspects in exercise of is appellate powers.

39.
In case of
Swaran Singh and Another Vs. State of Punjab & Others
,

1976(2)SCC868, the Supreme Court discussing on the power of writ court

under
Article 226
in paragraphs 12 and 13 has held as under :

"12. Before dealing with the contentions canvassed, it will be
useful to notice the general principles indicating the limits of the
jurisdiction of the High Court in writ proceedings under Article

226. It is well-settled that Certiorari jurisdiction can be
exercised only for correcting errors of jurisdiction committed by
inferior courts of tribunals. A writ of Certiorari can be issued
only in the exercise of supervisory jurisdiction which is different
from appellate jurisdiction. The Court exercising special
jurisdiction under
Article 226
is not entitled to act as an
appellate Court. As was pointed out by this Court in Syed
Yakoob's case (supra) "this limitation necessarily means that
findings of fact reached by the inferior court or Tribunal as a
result of the appreciation of evidence cannot be re-opened or
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ
but not an error of fact, however grave it may appear to be."

13. In regard to a finding of fact recorded by an inferior tribunal, a
writ of Certiorari can be issued only if in recording such a
finding the tribunal has acted on evidence which is legally
inadmissible, or has refused to admit admissible evidence, or if
the finding is not supported by any evidence at all, because in
such cases the error amounts to an error of law. The writ
jurisdiction extends, only to cases where orders are pissed by
inferior courts or tribunals in excess of their jurisdiction or as a
result of their refusal to exercise jurisdiction vested in them or
they act illegally or improperly in the exercise of their
jurisdiction causing grave miscarriage of justice."

40. The said principle of law has been reiterated many a times thereafter and the

said view still holds the field.

41.
In yet another recent decision in
Heinz India Private Limited and Another Vs.

State of Uttar Pradesh and Others
, 2012(5)SCC443, reiterating the same

principle in paragraphs 66 and 67 it was held as under :

"66.That the Court dealing with the exercise of power of judicial

review does not substitute its judgment for that of the

legislature or executive or their agents as to matters within

the province of either, and that the Court does not supplant

'the feel of the expert' by its own review, is also fairly well-
settled by the decisions of this Court. In all such cases

judicial examination is confined to finding out whether the

findings of fact have a reasonable basis on evidence and

whether such findings are consistent with the laws of the

land. [See
Union of India v. S.B. Vohra
, (
2004) 2 SCC 150,

Shri Sitaram Sugar Co. Ltd. v. Union of India
, (1990) 3 SCC

223, and Thansingh Nathmal and Ors. v. Supdt. of Taxes and

Ors., Dhubri, AIR 1964 SC 1419].

67.
In
Dharangadhra Chemical Works Ltd. v. State of Saurashtra

and Ors.
, AIR 1957 SC 264, this Court held that decision of a

Tribunal on a question of fact which it has jurisdiction to

determine is not liable to be questioned in proceedings under

Article 226
of the Constitution unless it is shown to be totally

unsupported by any evidence.
To the same effect is the view

taken by this Court in Thansingh Nathmal's case (supra)

where this Court held that the High Court does not generally

determine questions which require an elaborate examination

of evidence to establish the right to enforce which the writ is

claimed."

42. This view further has been followed in
Pepsico India Holding Private Limited

Vs. Krishna Kant Pandey
, 2015(4)SCC 270.

43. Since the dispute involved in the present case has already been thrashed out

before the Controlling Authority who has elaborately discussed the contentions

put forth on either side and based on the material produced before the

Controlling Authority has given an order which has also been affirmed by the

appellate authority under the Act, the scope of judicial interference gets

reduced substantially except on the ground of an error of jurisdiction or excess

of jurisdiction which in this case is not a ground of challenge.
44. In view of the aforesaid facts and circumstances of the case, this court is of

the opinion that no strong case has been made out by the petitioners calling

for an interference to the impugned order under challenge.

45. As a consequence all these writ petitions thus being devoid of merits deserve

to be and are accordingly dismissed.

Sd/-

P. Sam Koshy
Judge
Khatai/Rohit/Inder