Chief Executive Officer, Zilla Parishad, Thr. Deputy Chief Executive Officer, Arun Pralhadrao Mohod v. Smt. Panchfula Parasram Bansode And Another

1 13-CAO2304-2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CIVIL APPLICATION (CAO) NO.2304 OF 2018 AND MISC. CIVIL APPLICATION (RESTO) ST. NO.25067 OF 2018 AND REJ.WRIT PETITION NO.

OF 20 18 (W.P. ST. NO.3806/18) (CHIEF EXECUTIVE OFFICER, ZILLA PARISHAD & ANR...VS.. SMT. PANCHFULA PARASRAM BANSODE & ANR.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.S.Bhalerao, Advocate for Applicants/Petitioners. CORAM : A NIL S. KILOR , J.

DATED : JANUARY 07 , 20 .

C IVIL APPLN.

(CAO) NO.2304/2018 .

1.

For the reasons stated in the application, the application is allowed. Delay of 178 days in filing application for restoration of the writ petition is condoned. 2.

The Civil Application is disposed of accordingly.

CIVIL APPLN.(MCA) ST. NO.250687/2018.

3.

For the reasons stated in the application, the application is allowed. The writ petition is restored to its file.

4.

The Civil Application is disposed of accordingly.

2 13-CAO2304-2018 WRIT PETITION NO.373/2018.

5.

Heard.

6.

The Zilla Parishad / employer has challenged the orders passed by the subordinate Authorities under the Payment of Gratuity Act 1972, concurrently upholding the claim of the respondent No.1/ employee, for gratuity. The contention of the petitioners / employer is that while calculating the amount of gratuity receivable by the respondent No.1/ employee, the Controlling Authority has taken into account the dearness allowance also, and the Appellate Authority has also committed the same mistake. To support the submission that the amount of dearness allowance receivable by the employee cannot be taken into account for the purposes of calculating the amount of gratuity, the petitioner relies on the Government Resolution dated 30th October, 2009 particularly Clause (4) of it which explains the term "basic salary".

7.

The definition of "wages" under Section 2(s) of the Payment of Gratuity Act, 1972 which is as follows: "Section 2(s) - "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include

3 13-CAO2304-2018 any bonus, commission, house rent allowance, overtime wages and any other allowance."

8.

Therefore, it cannot be said that the Controlling Authority and the Appellate Authority have committed any error by taking into account the dearness allowance which was receivable by the respondent No.1 / employee, while calculating the amount of gratuity. 9.

In view of the judgment given in the case of Municipal Corporation of Delhi V/s. Dharam Prakash Sharma reported in 1998 (7) SCC 221 the respondent / employee is entitled for gratuity as per the Payment of Gratuity Act 1972, notwithstanding the fact that the provisions of Pension Rules are applicable and the service conditions of employee are governed by the Pension Rules.

10.

I find that the Controlling Authority and the Appellate Authority have examined this aspect and their conclusions are in consonance with the legal position. Hence, I see no reason to interfere with the impugned order. Accordingly, I pass the following order: i) The writ petition is dismissed.

ii) In the circumstances, the parties to bear their own costs.

4 13-CAO2304-2018 iii) The amount deposited by the petitioner before the Appellate Authority along with interest on it, if any, be given to the respondent / employee.

JUDGE RRaut..

PRIVATE SECRETARY