A GRATUITY APPEAL DECISION

BEFORE THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT,1972 AND DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN, JAGJIVAN NAGAR,DHANBAD : 826003

Gratuity Appeal No.24/2018-A.7

[Arising out of dated 26/06/2018of the Controlling Authority and Regional Labour Commissioner (Central),Ranchi in Gratuity Application No. 36 (31)/2016-RLC(R) ]

The Chairman,Jharkhand Gramin Bank,Head Office : Rajendra Place,5,Main Road,Ranchi : 834001                                                                               Appellant 

vrs 

Shri Ashok Kumar Prasad,s/o Lochan Prasad Sahu,“Saurabh Kunj”,Birsa Vihar,Punchsheel Nagar Road No.2,Pandra, Post : Hehal,Dist : Ranchi : 8 34005 Respondent 

APPEARANCE 

Shri Vijay Kumar,Advocate

Shri Rahul Kumar,Advocate                                                        Counsels for Appellant   

Shri Ashok Kumar Prasad                                                                   Respondent in person 

PRESENT

AJAYA KUMAR SAMANTARAY, APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT,1972 AND DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),DHANBAD 

DECISION DATED 15TH NOVEMBER 2018 

      The instant appeal has been preferred by the Chairman,Jharkhand Gramin Bank under sub-section (7) of Section 7 of payment of Gratuity Act,1972 wherein the decision dated 26th June 2018 of the Controlling Authority in Gratuity Application No.36 (31)/2016-RLC (R) has been assailed.

      The Appellant has urged the following contentions in the Memorandum of Appeal : 

(1) That in the instant appeal, the appellant prays for setting aside the order / findings dated 15.06.18 passed in P .G. Application No. 36(31)/2016-RLC(R) issued on 26.06.18 and received by the appellant on 28.06.18.

(2) That the appellant is the original opponent and is the Chairman of the Jharkhand Gramin Bank, sponsored by Bank of India, which has been established on 12th June, 2006, consequent upon amalgamation of four erstwhile Regional Rural Banks , namely, Ranchi Kshetriya Gramin Bank, Singhbhum Kshetriya Gramin Bank, Hazaribag Kshetriya Gramin Bank, and Giridih Kshetriya Gramin Bank. The amalgamation took place vide Government of India Notification no. F.No.1I4/2006 dated 12.06.2006, and the amalgamated entity, Jharkhand Gramin Bank, continues to function under the ambit of the Regional Rural Banks Act, 1976, an Act enacted by the Government of India.(sic Parliament)

 3. That S. 30 of the Regional Rural Banks Act, 1976, enables the authority to make Regulations to be followed :

 "S. 30. Power to make regulations.-

(1) The Board of Directors of a Regional Rural Bank may, after consultation with the Sponsor Bank and the National Bank and with the previous sanction of the Central Government by notification in the Official Gazette, make regulations, not inconsistent with the provisions of this Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act.

 (2) Every regulation shall, as soon as may be after it is made under this Act by the Board of directors, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."

5. That upon publication of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010, all service conditions of the officers and employees of the appellant (including the respondent no. 1) are governed by the same.

6.That Regulation 72 contained Chapter VII of the Jharkhand Gramin Bank (Officers and Employees)Service 2010 deals with Gratuity and the same reads as under :

"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 month's 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 draw:

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."

That further, as per the 10th Bipartite Settlement / Joint Note dated 25.05.15, Special allowance with D.A. thereon shall not be reckoned for the superannuation benefits including gratuity.

8. That further Regulation 2.1 (m) defines pay as:

"(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."

 9. That as is evident, the officer is entitled to gratuity as per the Regulation or the Payment of Gratuity Act, whichever is higher. However, he cannot elect pick and choose best parts of both.

1O. That the respondent no. 1 herein was an officer in Scale III at the time of retirement. He joined on 05.01.1981 and worked till his superannuation on 31.08.16. As such the applicant completed 35 years, 7 months and 26 days of service till his date of retirement.

11. That on 29.08.16, the respondent no. 1 submitted application for payment of gratuity claiming amount of Rs. 10,35,900/- as per the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 and hence the respondent no. 1 himself elected to be governed by it and not by the Payment of Gratuity Act.

12. That upon receipt of the application, the same was processed in terms of the Regulations and the amount was calculated and Rs. 10,28,720/- (net of TDS) was paid to the respondent no. I on 01.09.16.

13. That as per S. 4 (3) of the Payment of Gratuity Act, 1972, the amount of gratuity payable to an employee shall not exceed Ten Lakh rupees.

14. That as the Gratuity of the respondent no. 1 was higher under the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 than the Payment of Gratuity Act, 1972 and hence the higher amount of gratuity was paid to the respondent no. 1.

15. That further, the amount was paid as per the respondent no. 1's own claim and hence even otherwise he is estopped in law in contending otherwise

16. That after receipt of payment, the respondent no. 1 filed an application under Form 'N' with annexures before the respondent no. 2 on 18.11.16 initially praying therein to determine the amount of gratuity payable to him and further declared the total gratuity amount to be Rs. 15,07,234.50 and demanded for payment of further Rs. 4,71,334.50 only which was registered as Application No. 36 (31) / 20 16-RLC(R).

17. That the applicant sought to amend the relief. However, no order permitting amendment was passed to the best of the knowledge of the appellant.

 18. That the appellant duly appeared before the respondent no. 2 and filed its written statement and expressly brought the aforesaid facts to the knowledge of the respondent no. 2.

19. That after hearing the parties, the respondent no. 2 passed the following order:

In view of the above, I determine the gratuity In respect of the applicant is as under:

 Date of Appointment                                     05.01.1981

 Date of Retirement                                       31.08.2016

 Length of completed year 35 years of         35 years.7 months 27 days

service for which , gratuity is payable 

  Last Wages Drawn                                             Rs . 90,035.30 (BP + DA + PQP + Special Allowance + DA on Special Allowance)

Amount of gratuity payable

a) For the first 30 years                                   Rs.90,035.30 * 30 * 15 =  Rs. 15,58,303.26                                                                                       26

b) For beyond 30 years of service i.e. Rs.90,35,900.00 * 6 * 45 = Rs.9,34,981.96                                                               26                

   5 years, 7  months and 27 days 

Total amount of gratuity payable (a+b)           Rs.24,93,285.22 rounded off Rs. 24,93,285.00

Amount of gratuity already paid to the           Rs.10,35,900.00

Balance amount of gratuity to be paid            Rs.14,57,385/-(Rupees Fourteen lakh

fiftyseven three hundred eightyfive only) 

Thus the applicant is entitled differential/balance amount of gratuity amount to Rs. 14,57,385/- (Rupees Fourteen lakhs fifty seven thousand three hundred eighty five only) .

20, That the respondent no. 2 further considered the aspect of interest and in spite of acknowledging that the gratuity amount as claimed and as determined by the appellant was duly paid, held that since the amount was not deposited with the Controlling Authority and as such the appellant is liable to pay interest thereon and accordingly calculated the interest component up to 31.05.18 amounting to Rs. 2,55,042/- and thereby directed the appellant to pay a total sum of Rs. 17,12,427/- to the respondent no. 1 by its finding dt. 15 .06. 2018

 21. That the appellant is depositing the awarded gratuity amount by DD Nos.581750 and 581751 dt. 24.07.2018 drawn in favour of "Deputy Chief Labour Commissioner (Central), Dhanbad" payable at Dhanbad .

22. That the appellant has not filed any appeal, review, revision against the impugned order / finding.

 23. That this appeal is made bona fide and In the interest of justice.

 The Appellant further says that being aggrieved by and dissatisfied with the order / finding dated 15.06.18 passed In P.G. Application No. 36(31)/2016-RLC(R) issued on 26.06.18 and received by the appellant on 28.06.18, the appellant begs to prefer this appeal on the following amongst other-

GROUNDS OF THE APPEAL

 i) For that the impugned order is bad in law and to the facts of the case.

 ii) For that the Controlling Authority has erred in not considering that the respondent no. 1 had himself claimed a sum of Rs. 10,35,9001- which was paid and hence the respondent no. l' s further claim is barred under the Doctrine of Waiver, Estoppel and Acquiescence.

 iii) For that the Learned Controlling Authority has erred in not considering the provisions of the Payment of Gratuity Act, 1972, Regional Rural Banks Act, 1976 and the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 in its true letter and spirit.

 iv) For that the Controlling Authority has erred in not considering that the Regulation mandates computation of gratuity on the basis of 'pay' which is specifically been defined and not on the basis of 'wage' which is governed by the Payment of Gratuity Act.

 v) For that the Learned Controlling Authority has erred in not considering that Regional Rural Banks Act, 1976 is a special enactment which has been enacted subsequently to the P.G. Act, 1972 and as per S. 32 thereof, the same has overriding effect.

vi) For that the Controlling Authority has erred in invoking the provisions of both the Payment of Gratuity Act and the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 to arrive at a higher and unclaimed amount of gratuity, which is impermissible.

vii) For that the Controlling Authority has erred in not considering that either of two i.e. either the Payment of Gratuity Act or the Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 was applicable and provisions of one cannot and ought not to be read into another.

 viii) For that the Controlling Authority has erred in redefining the aspect of 'Pay' which has expressly been defined under Jharkhand Gramin Bank (Officers and Employees) Service Regulations 2010 and the same was unambiguous and warranted no interpretation .

 ix) For that the Controlling Authority has erred In not considering the aspect that since the applicant was an 'Officer' and hence only his last pay drawn was to be taken into account and pay has been defined under Regulation 2.1 (m) to mean 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 regulation

x) For that the Controlling Authority has erred in not considering that no further emoluments have been added to the definition of 'pay' and hence nothing can be added thereto.

xi) For that the Controlling Authority has erred in not considering that in fact in 10th Bipartite Settlement / Joint Note dated 25.05.15, it has been specifically agreed and mandated that Special allowance with D.A. thereon shall not be reckoned for the superannuation benefits including gratuity.

 xii) For that the Controlling Authority has erred in not considering that the Bipartite Settlement also comes within the ambit of 'law' as it is a settlement therein and binding on all parties thereto i.e. the management and the officers.

xiii) For that the Controlling Authority has erred in holding that the 'pay' has been interpreted against its own regulations differently for officer and / or employee which is not the case herein and the same has been applied strictly as per the Regulations.

xv) For that the Controlling Authority has erred in not considering that 'pay' has been given specific meaning for the purposes of gratuity and hence general meaning of pay ought not to be invoked.

 xvi) For that the Controlling Authority has erred in not considering that as per Regulation 72(3) 2nd Proviso, an officer is only entitled to gratuity payable based on the last pay drawn and not last wages drawn .

 xvii) For that the Controlling Authority has erred in not considering that the respondent no. 1 was an officer and not an employee and hence was entitled to specific amounts for the purposes of computation of pay as per the regulation and 'officer' is a special class and hence the regulation applicable to 'employee' cannot be made applicable to 'officer'.

 xviii) For that the calculation arrived by the Controlling Authority is illegal and without any basis.

 xix) For that the computation of last pay drawn is without any findings and is baseless and erroneous.

xx) For that the Controlling Authority. has erred in not considering that as per Regulation, 72(3), a maximum of 15 months pay is to be paid as gratuity and Regulation 72 (4) is an exception carved out therein wherein further 15 days pay for every completed year of service is to be paid over and above 30 years of service.

xxi) For that the Controlling Authority has erred in holding additional amount to be additional rate of gratuity to be added over and above the regular rate, which is not so and it is only in form of an exception for persons who have worked over and above 30 years.

 xxii) For that the Controlling authority has further erred in not considering that additional amount of gratuity Was payable for each completed year of service beyond 30 years and hence since the respondent no. 1 has completed only 5 years of service as such he was entitled to additional gratuity for only 5 years and not 6 years .

xxiii) For that the Controlling authority has further erred in holding that the last pay drawn is for 26 days which is not so in as much as per Regulation 2(m), pay has been defined as basic pay drawn per month and same nowhere restricts to 26 days.

xxiv) For that the Controlling authority has further erred in holding that the last pay drawn is for 26 days and thereby has further erred in enhancing the same to 30 days, while the last pay drawn is for 30 days only.

xxv) For that the Controlling authority in spite of acknowledging that the amount as demanded by the respondent no. 1 was duly paid and since the amount was paid bona fidely and as such as per the decision of the Hon'ble Madras High Court in W.A. 1478 of 2006 in P. Selvaraj v. the Management of Shardlow India, since there is no any deliberate delay in part of payment of gratuity on part of the management and hence it cannot be levied with the aspect of payment of interest on account of delayed payment of further amount.

 xxvi) For that the Controlling Authority has further erred in not I considering the decisions cited by the appellant of the Appellate Authority especially that In the case of Chairman, Pragati Krishna Grameen Bank, Bellary v. Sri B.K. Sathyanarayanrao which has also relied upon the judgment of the Hon'ble Supreme Court of India in the case Beed District Central Co-operative Bank Ltd. v. State of Maharashtra and others wherein it has specifically been held that a person cannot opt for both the terms in respect of payment of gratuity and can only be governed by one.

 xxvii) For that the Learned Controlling Authority has erred in not considering the judgment dt. 16 July, 2014 of the Hon'ble Calcutta High Court in the case of United Bank Of India vrs Sri Pranab Kumar Bhuiyan & Ors wherein the Hon'ble Calcutta High Court has held that the decisions of the Controlling Authority and appellate authority that the provisions of the Gratuity Act would prevail over the Regulation, does not appear to be correct and that the said authority has failed to take into consideration the special nature of the Regulation.

 xxviii) For that the Controlling Authority has erred in holding the appellant liable to make payment of further amount and also to pay interest thereon which is illegal and bad in law.

xxix) For that the appellant is not entitled to make payment of any further amount in the matter than that already paid.

 xxx) For that other and further grounds shall be urged at the time of hearing .

      The Appellant has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Beed District Central Co-operative Bank Ltd., vrs. State of Maharashtra and others [ 2007 – I – LLJ – 1 = 2006 (111) FLR 710 wherein the issue to be determined by the Hon’ble Apex Court was follows : 

WHETHER THE EMPLOYEES ARE ENTITLED TO GET BETTER TERMS OF GRATUITY IN ACCORDANCE WITH PAYMENT OF GRATUITY ACT, 1972 AS WELL AS THE SCHEME FOR GRATUITY OPERATIVE IN AN ESTABLISHMENT?

The Hon’ble Supreme Court answered the issue in the following language:

“It is significant that in the event the amount of gratuity is calculated at the rate of 26 days’ salary for every completed year of service, vis-à-vis, 15 days’ salary therefore, the tenure of an employee similarly situate will vary. Whereas in the former case an employee may receive the entire amount of gratuity while working for a lesser period, in the latter case an employee drawing the same salary will have to work for a longer period. We are therefore, of the opinion that the workman cannot opt for both the terms. Such a construction would defeat the purpose for which sub-section (5) of Section 4 has been enacted ( italicised by this Authority for emphasis). For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside. The appeal is allowed. No costs”.

COUNTER STATEMENT OF THE RESPONDENT:

1. That he is Respondent No. 1 in this case (appeal) and as such he is well acquainted with facts and circumstances of the present case (appeal).

 2. That he has gone through the contents of appeal under reply and understood the same fully.

 3 That the instant P. G. Appeal under reply filed by the appellant is misconceived and devoid of any substance and as such the same is liable to be dismissed by this Hon'ble Court.

 4. That it is stated that the instant appeal filed under Sub-section 7 of Section 7 of the Payment of Gratuity Act, 1972 by the appeal is not maintainable as the same will amount to second revision application.

5. That it is submitted that there is absolutely no illegality in the orders impugned dated 15.06.2018 passed by The Controlling Authority under Payment of Gratuity Act,1972 & the Regional Labour Commissioner ( Central), Ranchi, herein the Respondent No. 2, in P. G. Application No. 36(31 )/2016-RLC (R) issued on 26.06.2018 and received by the appellant on 28.06.2018 whereby and where under the Respondent No. 2 has directed the appellant to pay the balance amount of gratuity amounting to Rs. 17,12,427/- (Rupees seventeen lakh, twelve thousand four hundred twenty seven only) to Sri Ashok Kumar Prasad,herein the Respondent No. 1, within thirty days from the date of receipt of the order under intimation to the Controlling Authority.

 6. That with regard to the statements made in paragraphs 2 to 6 of the appeal are the contents of the relevant portions of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 preferred by the appellant for its reference to this Hon'ble Court and as such the same are matters of record and need no reply.

7. That with regard to the statements made in paragraph 7 of the appeal, under reply, it is stated that the same are misleading and hereby denied because the concept of last wages drawn as per provision in the Gratuity Act connotes to emoluments whereas definition of pay or salary last drawn in the Regulations has been found contradictory in itself by the Controlling Authority while arriving at the findings in the P. G. Application itself as it has been differentiated in case of officers and employees as per Regulations and the same is not at all permissible in the eyes of law.

 8. That with regard to the statement made in paragraphs 8 of the appeal, under reply, it is stated that the same are matters of record to be verified by the appellate authority and needs no reply.

9. That with regard to the statement made in paragraph- 9 of the appeal, under reply, it is stated that it is a matter of record to be verified by the by the Hon'ble Appellate Authority. Section 72 (1) of the Regulations reads as "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." Of course, the Respondent No. 1 is free to choose best parts of both because the definition of pay in the Regulations is defective and fractured to the extent that it does not include the components of emoluments as defined in the Act. (highlighted by this Authority).

10. That with regard to the statement made in paragraph 10 of the appeal, under reply, it is stated that it is a matter of record to be verified by the by the Hon'ble Appellate Authority and needs no reply. 

11. That with regard to the statement made in paragraph 11 of the appeal, under reply, it is stated that at that time the answering respondent no.1 was not aware about the actual calculation process and provisions in the Act and that is why he has opted for provisions of the Regulations, rather he was provided with the prescribed format and required figures to be mentioned by him for the purpose of formality only whereas the actual calculations were done at Regional Office level, but subsequently when it came to his knowledge that the concept of last wages drawn as per the Gratuity Act the amount of gratuity paid is less and disputed and that is why he preferred PG Application No.36(31 )/2016-RLC (R) before the Controlling Authority under Payment of Gratuity Act, 1972 & the Regional Labour Commissioner ( Central) Ranchi ,herein Respondent No. 2 for determination of the Gratuity under law and for the ends of Justice. He has also placed his reliance upon some important Judgments/orders of the similarly situated persons and has annexed thereto mentioned herein below:-

 (i) Order dated s" February 2015 passed by The Controlling Authority under the Payment of Gratuity Act, 1972 and Regional Labour Commissioner (Central) Bellary in application No. 36(03)/2013 -RLC/BLY,

(ii) Order / Judgment dated 14.12.2012 passed by the Hon'ble Mr. Justice JAGDISH SINGH KHEHAR of the Hon'ble Supreme Court of India in CIVIL APPEAL NO. 9087 of 2012 (Arising out of SLP (Civil) No. 14570 of 2012 Y.K.Singla vrs. Punjab National Bank & Ors.

 (iii) Order dated 06.10.2016 passed by The Controlling Authority under Payment of Gratuity Act, 1972 & the Assistant Labour Commissioner (Central), Siliguri in Application No.48 (1) 1 2015 1 ALC-S Sri Ashok Kumar Chowdhury vrs. The Chairman Uttarbanga Kshetriya Gramin Bank, Cooch Behar, West Bengal.

(iv) Order dated 12.07.2017 passed by The Controlling Authority under Payment of Gratuity Act, 1972 & the Assistant Labour Commissioner (Central), HYDRABAD in Application No. 48(102)/2016-E2 Sri B. Reddapa Reddy vrs. The General Manager Saptgiri Gramin Bank, Chitoor, Andhra Pradesh.

 (v) Order dated 12.07.2017 passed by The Controlling Authority under Payment of Gratuity Act, 1972 & the Assistant Labour Commissioner (Central), HYDRABAD in Application No. 48/85/2016-E2 Sri P. Satyanarayana vrs. The General Manager Saptagiri Gramin Bank, Chitoor, Andhra Pradesh.

 (vi) Order dated 20.03.2018 passed by The Controlling Authority under Payment of Gratuity Act, 1972 & the Assistant Labour Commissioner (Central), AJMER In Application No. AJ-48(98)/2017 -ALC Sri Gyan Bharati Goshwami vrs. The Chairman , Rajasthan Marudhar Gramin Bank, Jodhpur, Rajasthan.

 (vii) And finally the most important Order/ Judgment dated 13.12.2017 of the Appellate Authority Under Payment of Gratuity Act, 1972 & the Deputy Chief Labour Commissioner (Central) ,Hyderabad passed in cases Nq.- PGA-36/21 to 44/2017 being calculated on the basis of last wages drawn by the concerned officers i.e. inclusive of Basic Pay + DA + PQA with DA etc, and analyzed " Better Terms" and additional amount at the rate of one half months of a month's pay.

 (viii) Interim Order dated 07.02.2018 passed by Hon'ble Sri Justice Suresh Kumar Kait and Hon'ble Sri Justice Abhinand Kumar Shavilin in the High Court of Hydrabad in Writ Appeal no. 194 of 2018 in which declined to interfere with in I.A. No.1 of 2018 in W. P. No.1682 of 2018 passed by single judge, and passed the order to pay 50% amount.

(ix) Interim Order dated 19.03.2018 passed by Hon'ble Sri Justice Sanjay Kumar and Hon'ble Sri Justice M. Ganga Rao in the High Court of Hydrabad in Writ APPEAL No. 451 of 2018 passed order and directed the bank to release 50% of amount deposited by Saptgiri Gramin Bank in which learned Judge had ordered to appellate authority not to allow the fourth respondent-employee to withdraw the amount deposited by Saptgiri Gramin Bank until further order in W. P. NO.370 of 2018, Hence aggrieved thereby, the Fourth respondent - employee preferred appeal and Hon'ble Court passing order direct the bank to release 50% of amount deposited by Saptgiri Gramin Bank. The above documents/judgments are not the least, during the course of proceedings if required will be submitted additional documents.

 12.That with regard to the statements made in paragraphs 12 & 13 of the appeal, under reply, it is stated that the same are matters of record to be verified by the Hon'ble Appellate Authority. However, statement made in para 12 is denied to the extent that while processing the calculation of gratuity the appellant has miserably failed to consider and take into the account of last wages drawn as per the provisions in the Act and the fractured meaning of pay under Regulation.

 13. That with regard to the statements made in paragraphs 14 of the appeal, under reply, it is stated that the same are incorrect and false because the higher amount of gratuity was paid to the answering respondent no. 1 no doubt, but at the same time the appellant has failed to calculate appropriately keeping in view that the respondent no. 1 has rendered more than 30 years of service and he is actually eligible for gratuity on the basis of one and half months pay for every completed years of service over and above 30 years i.e. for 45 days as per provisions in the Act.

 14. That with regard to the statements made in paragraphs 15 of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the amount paid to him was less and disputed one due to wrong interpretation of pay or salary defined in the Regulations which has been differentiated with that of employees.

15.That with regard to the statements made in paragraphs 16 to 22 of the appeal., under reply, it is stated that the same are matters of record and need no reply.

16. That with regard to the statements made in paragraph 23 of the appeal, under reply, it is stated that the same are nothing, but grounds being taken by the appellant in sub- para graphs (i to xxix) of para graph 23 while preferring the instant appeal and the same are incorrect, false and misleading and hereby denied as mentioned herein below :-

i) That it is stated that the impugned order passed by the Respondent No. 2 is In accordance with law and on the basis of the facts of the case.

 ii) That it is stated that the Controlling Authority has rightly considered the case of the respondent no. 1 and no error has been committed by the passing authority because earlier claim of the respondent no.1 was wrong due to defective and fractured concept of the pay in the Regulations and not in conformity with the provisions in the Act.

iii) That it is stated that the Learned Controlling Authority has rightly considered the provisions of the Payment of Gratuity Act,1972, Regional Rural Banks Act, 1976 and the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 in its true letter and spirit and no error has been committed as stated/alleged by the appellant.

 iv) That with regard to the statements. made in paragraph 23 (iv) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has deliberately discussed and described in the relevant Para of the order impugned and has come to the conclusion for determining the actual gratuity payable to the applicant and no error has been committed as alleged.

 v) That with regard to the statements made in paragraph 23 (v) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because it is nullified from mere perusal of the Section 14 of the Act which reads as under :-

 " Act to override other enactments, etc - The provisions of this Act or any rule made there under shall, have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."

 vi) That with regard to the statements made in paragraph 23 (vi) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has not committed any illegality and error in invoking the provisions of both the Act and Service Regulations to arrive at a higher amount of gratuity and has rightly determined the same in accordance with law.

vii) That with regard to the statements made in paragraph 23 (vii) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has rightly considered both the Act as well as Regulations comparatively and has come to the conclusion in accordance with law and has not committed any error or illegality while determining the Gratuity payable to the Respondent No. 1 based on the -reliance of the applicant on various judgments particularly Judgment / Order dated 13.12.2017 of the Appellate Authority Under Payment of Gratuity Act, 1972 & the Deputy Chief Labour Commissioner (Central) , Hyderabad mentioned herein above.

viii) That with regard to the statements made in paragraph 23(viii) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the definition of 'PAY' in the Regulation is ambiguous, fractured, contradictory and discriminating with Officers and employees and after careful consideration of theses aspects the Controlling Authority has rightly interpreted and has come to its findings and determined the gratuity applicable to the applicant in accordance with law.

 ix) That with regard to the statements made in paragraph 23 (ix) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority found the definition of Pay in the Regulations defective, fractured, contradictory and discriminatory in case of officers and employees as stated hereinabove and as such the last wages drawn concept has been taken into Account, and no were "Pay" is defined separately and specifically in the regulation for the purpose of gratuity. Hence no error has been committed.

 x) That with regard to the statements made in paragraph 23 (x) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has not committed any error or illegality as alleged by the appellant in this para and he has rightly calculated as per provisions of the Payment of Gratuity Act, 1972

 xi) That with regard to the statements made in paragraphs 23 (xi & xii) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because Payment of Gratuity Act, 1972 shall have an overriding effect thereupon.

 xii) That with regard to the statements made in paragraph 23(xiii) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because this fact is revealed from mere reading of para 3 & 4 of Section 72 ( 3) of the Regulations related to gratuity itself which reads as :-

Para -3 -Provided further that in respect of an officer the gratuity is payable based on the last pay drawn.

Para-4- Provided also that in respect of an employee pay for the purpose 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 or termination or a service as the case may be."

xiii) That with regard to the statements made in paragraph 23(xiv) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has never disregarded the provisions of the Regulations, rather he has simply pointed out its draw back and defect only as compared to last wages drawn concept in the Act for the purpose of Gratuity Calculation purpose only and as such no error has been committed by him in any manner.

xiv) That with regard to the statements made in paragraph 23(xv) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Controlling Authority has rightly invoked the actual meaning of wages last drawn as defined in the Act because as stated herein above the definition of pay, salary etc in the Regulations are found to be defective, fractured and discriminatory one,

 xv) That with regard to the statements made in paragraph 23(xvi) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because the Act shall have overriding effect upon the Regulations wherein last wages drawn concept is to be taken into account while determining the gratuity amount payable to the Respondent No. 1. (highlighted by this Authority)

xvi) That with regard to the statements made in paragraph 23(xvii) of the appeal, under reply, it is stated that the same are incorrect and false and hereby denied because there is no scope of any discrimination between any officer and employee as per provisions of the Payment Gratuity Act, 1972 and the Act shall prevail.

xvii) That with regard to the statements made in paragraph 23(xviii & xix) of the appeal, under reply, it is stated that the same are incorrect, false and it is wrong to say the same to be illegal and baseless and hereby denied because the Controlling Authority has arrived at calculation of gratuity under law and as per provisions of the Act based on various earlier Judgments of the Hon'ble Apex Court as well as DCLR Hyderabad & the Appellate Authority under the Payment of Gratuity Act. 1972 as mentioned herein above.

xviii) That with regard to the statements made in paragraph 23(xx & xxi) of the appeal, under reply, it is stated that the same are incorrect, false and baseless and hereby denied because as per provisions in the Act the gratuity is payable for one and half month's pay for every completed years of service beyond 30 years i.e. for 45 days not 15 days' pay for every completed year of service over and above 30 years wrongly mentioned in the Service Regulations of the appellant Bank.

 xix) That with regard to the statements made in paragraph 23(xxii , xxiii & xxiv) of the appeal, under reply, it is stated that the same are incorrect, false and baseless and hereby denied because the Respondent No. 1 has served the bank for 35 years, 7 months and 26 days and as such the period above 6 months have been rounded off to one year and as such total period of service over and above 30 years has come to 6 years and as such calculation has been made accordingly. Hence no error has been committed by the Respondent No. 2

 xx) That with regard to the statements made in paragraph 23(xxv) of the appeal, under reply, it is stated that the same are incorrect, false and baseless and hereby denied because interest has been levied as per provisions in the Act due to delay in payment of the differential amount of gratuity payable which is still to be paid as per award passed by the Controlling Authority, now under challenge, in the instant appeal by the appellant.

xxi) That with regard to the statements made in paragraph 23(xxvi & xxvii) of the appeal, under reply, it is stated that the same are incorrect, false and baseless and hereby denied because the Controlling Authority has duly considered all Judgments submitted by the appellant while deciding the matter. However, he did not feel necessary to make reference thereof in the impugned order because Provisions of the Gratuity Act would prevail over the Regulations.

xxii) That with regard to the statements made in paragraph 23(xxviii & xxix) of the appeal, under reply, it is stated that the same are incorrect, false and baseless and hereby denied because the Controlling Authority has rightly passed orders for interest as well as balance amount of gratuity payable to the Respondent No.1 is in accordance with law and provisions of the Gratuity Act.

The Respondent has placed reliance on the following decisions :

(i) P Serlvaraj vrs The Management of Shardlow India [ W A 1478 of 206 (sic 2006)]

(ii) M D ,Punjab State Cooperative Bank Ltd vrs Manjit Singh Sodhi, 2011 Lab I C 708

(iii) Saptagiri Gramin Bank vrs P Venugopal Gupta and 23 others (P G Appeal Decision Nos 36/ 21 to 44/2017 dated 13/12/2017 of the Appellate Authority under Payment of Gratuity Act,1972 and Deputy Chief Labour Commissioner (Central), Hyderabad.

(iv) The Chairman,Uttarbanga Kshetriya Gramin Bank vrs Shyamal Kanti Bhattacharjee [Appeal No.48 (19)/2017.E-Dy CLC dated 15th June 2018 of the Appellate Authority and Deputy Chief Labour Commissioner (Central),Kolkata.

(v) India Gramin Bank Pensioners’ Organization,Unit Rewa vrs Masdhyanchal Gramin Bank and another (in WP 9182 and 2299 of 2017 and WP 2877 of 2018)

(vi) Shri K Andappa vrs Chairman,Pragati Krishna Gramin Bank (Gratuity Application No.36 (03)/2013-RLC/BLY dated 20th January 2015,Findings of the Controlling Authority and Regional Labour Commissioner (Central), Bellary)

(vii) Y K Singla vrs Punjab National Bank and others (Civil Appeal No.9067 of 2012.Hon’ble Supreme Court)

(viii) Sri Ashok Kumar Chowdhury vrs Chairman,Uttarbanga Gramin Bank ( Gratuity Application No.48 (1)/2015/ALC-5 dated 6th October 2016)

(ix) Sri B Reddappa Reddy vrs The General Manager,Saptagiri Gramin Bank (Gratuity Application No.48/102/2016-E2 dated 12th July 2017 of CA and ALC (C),Hyderabad)

(x) Sri P Satyanarayana vrs The Chairman, Saptagiri Grameena Bank (Gratuity Application No.48/85/2016-E2 dated 12th July 2017 of CA and ALC (C),Hyderabad

(xi) A decision bearing No.AJ-48 (98)/2017-ALC dated 16/03/2018 wherein the Chairman,Rajasthan Marudhar Gramin Bank is the respondent. The decision has been delivered by the CA and ALC (C),Ajmer.

(xii) Copy of judgement in Writ Appeal No.451 of 2018 dated 19/03/2018 of the High Court of Judicature at Hyderabad.

APPRECIATION OF SUBMISSIONS:

The Appellant says as follows:

1.That an Officer is eligible to get gratuity on the basis of the Basic Pay only.

2.The maximum gratuity will be restricted to 15 months’ Pay

3.Beyond 30 years of service gratuity will be paid at half the monthly pay.

4.On the basis of the same, his gratuity has been paid correctly.

What the Respondent says being that :

1.His Basic Pay, DA, PQP ,Special Allowance and DA on special allowance should be taken into account for calculation of gratuity.

2.That for 30 years gratuity @ one month on the above emoluments and after 30 years of service gratuity @ 45 days on the basis of the above emoluments should be calculated.

3.That for Officers and Employees there cannot be different treatment as regards pay and allowances for calculation of gratuity.This is discriminatory and violates Article 14 of the Constitution of India.