Bombay High Court
Zilla Parishad Wardha, Thr. Its Chief … vs Mahadeo S/O. Bapuraoji Kapase on 4 July, 2025
2025:BHC-NAG:7099
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.8491/2022
1. Zilla Parishad Wardha,
through its Chief Executive Officer,
Zilla Parishad, Wardha,
Tah. & Distt. Wardha.
2. Zilla Parishad, Wardha
through its Executive Engineer
(Works Division), Zilla Parishad
Wardha, Tah. & Distt. Wardha.
3. Zilla Parishad Works Sub Division
Hinganghat, through its Sub-Divisional
Engineer, Zilla Parishad Works
Sub-Division Hinganghat,
at Hinganghat, Tah. Hinganghat,
Distt. Wardha. ... Petitioners
(Original Non-applicants)
- Versus -
Mahadeo S/o Bapuraoji Kapase,
aged about 70 Yrs., Occ. Retired,
R/o Saint Gomaji Ward, Hinganghat,
Tah. Hinganghat, Distt. Wardha 442 301. ... Respondent
(Original Applicant)
WITH
WRIT PETITION NO.8492/2022
1. Zilla Parishad Wardha,
through its Chief Executive Officer.
2. Executive Engineer, Works Division,
Zilla Parishad Wardha.
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3. Zilla Parishad Works Sub Division
Hinganghat, through its Sub-Divisional
Engineer, Zilla Parishad Works
Sub-Division Hinganghat,
Distt. Wardha. ... Petitioners
(Original Non-applicants)
- Versus -
Mahadeo S/o Bapuraoji Kapase,
aged about 69 Yrs., Occ. Retired,
R/o Saint Gomaji Ward, Hinganghat,
Tah. Hinganghat, Distt. Wardha 442 301. ... Respondent
(Original Applicant)
-----------------
Mr. N.M. Kolhe, Advocate for the petitioners.
Mr. A.J. Pathak, Advocate for the respondent.
..(in both petitions)
----------------
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATED : 4.7.2025.
JUDGMENT
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
2. In both these writ petitions as the petitioners and the
respondent are same and same orders are challenged, they are
decided by the common judgment.
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3. In Writ Petition No.8492/2022 the order which was
passed by the Controlling Authority under Payment of Gratuity
Act (Labour Court), Wardha in P.G.A. Application No.26/2018 is
challenged. In said order, the Authority has granted the difference
amount with interest but from the date of judgment. Said order
was challenged by the petitioners in Appeal (PGA) No.19/2019
and it was dismissed. The order passed in said appeal is challenged
before this Court.
4. In Writ Petition No.8491/2022 the order to pay the
difference of gratuity amount of Rs.1,59,585/- with interest at the
rate of 10% per annum from the date of superannuation i.e. from
1.7.2007 is challenged.
5. The respondent was appointed as a Samaipal on
01.04.1979 and stood superannuated on 30.6.2007. He was
governed by the provisions of the Maharashtra Civil Services
Rules. According to the petitioners, last drawn salary of the
respondent was Rs.17,350/- and accordingly the gratuity amount
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was paid as per Rule 111 of the Maharashtra Services (Pension)
Rules, 1982.
6. By office order dated 09.05.2007 the petitioners have
paid Rs.1,39,500/- and total Rs.2,68,925/- towards gratuity
amount to the respondent.
7. After 10 years the respondent issued notice to the
office of the petitioners on 31.3.2018 demanding difference of
gratuity amount of Rs.1,91,451/- along with interest as per the
provisions of the Payment of Gratuity Act. It is submitted by the
respondent that he has rendered total service of more than 31
years and as per the provisions of the Payment of Gratuity Act his
last salary for calculating the amount of gratuity is Rs.18,391/-.
Therefore, the respondent claimed that he is entitled to receive
total gratuity amount of Rs.1,91,451/- as per the provisions of the
Payment of Gratuity Act. However, the petitioners have only
paid Rs.1,37,500/- towards gratuity amount to the respondent.
Therefore, he is entitled to receive difference amount of gratuity
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of Rs.1,91,451/- from the petitioners along with interest @ 18 per
annum from its due date till actual realization.
8. The petitioners have stated that the service condition
of respondent is governed by the Maharashtra Civil Services
Rules. The calculation of gratuity is done according to the Rules
applicable to the respondent and no fault can be drawn against
them. The calculation of gratuity amount is proper. There is
unreasonable delay in filing the application. The respondent does
not fit in definition under the Payment of Gratuity Act, 1972. IN
Writ Petition No.8491/2022 on 24.1.2019 the Authority and the
Labour Court has passed the judgment and order and allowed the
application filed by the respondent under the Payment of
Gratuity Act and directed the petitioners to pay difference of
gratuity amount of Rs.1,59,585/- to the respondent with simple
interest at the rate of 10% per annum from the date of
superannuation i.e. from 1.7.2007 till the date of realization of
the amount. In Writ Petition No.19/2019 the petitioners had
challenged the above order before the Appellate Authority vide
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Appeal (PGA) No.19/2019 which was dismissed. Being aggrieved
by the said order, the petitioners have filed Writ Petition
No.8492/2022.
9. The learned Advocate for the petitioners has stated
that rule 6 of the Maharashtra Zilla Parishads District Services
Rules, 1968 clearly mentions the applicability of the Maharashtra
Civil Services Rules (Pension) Rules, 1982 wherein definition of
pay is clearly mentioned at rule 9(36)(i) which only states about
pay and it does not include dearness allowance and, therefore,
gratuity of respondent was calculated as per the said statutory
Rules and, therefore, no fault can be found in respect of said
payment of amount of gratuity paid to the respondent. The
respondent has admitted applicability of the Maharashtra Civil
Services (Pension) Rules, 1982 and as per said definition the
respondent is getting pension and when the definition under the
Maharashtra Civil Services Rules specifically includes the gratuity
under the provisions of the Payment of Gratuity Act, 1972, same
is controlled by the law laid down by the High Court of Gujarat
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in case of Junagad District Panchayat V/s. Surendrasinh Dayabhai
Rathod and others reported in MANU/GJ/8535/2006 and,
therefore, prayed to set aside the judgment and order passed by
the Appellate Authority.
10. The learned Advocate for the respondent has
submitted that the Payment of Gratuity Act is applicable to Zilla
Parishads. The employees are entitled for gratuity under the
beneficial legislation to receive the payment. The issue is
discussed and already been decided in various judgments. The
respondent has relied on the observations of this Court in
paragraphs 11 and 12 in Writ Petition No.1307/2021 (Chief
Officer, Municipal Council, Chikhli V/s. Sheikh Javed Wahed)
which read as under:-
“11. A perusal of the MCSR (Pension) Rules, 1982,
would show that Rule 110 pertains to calculation of
the amount of pension payable to an employee of the
Municipal Council, as the said Rules are admittedly
applicable and Rule 111 of the MCSR (Pension)
Rules, 1982, pertains to the scheme of gratuity
payable to the employees. These are two separate and
distinct Rules, which pertain to distinct and separate
benefits of pension and gratuity, as contemplated
under the MCSR (Pension) Rules, 1982. The mixing
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of the same and claiming the same to be a package
deal on behalf of the Council is nothing but a
desperate attempt to wriggle out the Act of 1972 and
the position of law laid down by the Hon’ble
Supreme Court in the aforesaid judgments in that
regard.
12. A perusal of the aforesaid judgments would
show that the position of law is very clear. It is
absolutely clear that unless an establishment is
exempted by the appropriate Government under
Section 5 of the Act of 1972, the provisions of the
said Act would be applicable. It is also clear that only
when the payment of gratuity under the scheme
formulated by the establishment is found to be more
beneficial for the employee as compared to the
amount of gratuity payment under the Act of 1972,
the establishment could claim that the provisions of
the Act of 1972, would not be applicable. This clearly
indicates the beneficial nature of the Act of 1972 and
hence, it has been interpreted accordingly by the
Hon’ble Supreme Court in the aforesaid judgments.”
11. It appears from the impugned judgment and order
that the application was opposed mainly on the ground of delay
and quantum of amount as was claimed by the respondent
towards gratuity. The petitioners did not dispute the entitlement
of the respondent to receive the amount of gratuity and certain
amount was specified to be payable to the respondent.
Sub-section (2) of Section 7 of the Act lays down that irrespective
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of whether an application, as provided in sub-section (1) has been
made or not, the employer shall as soon as gratuity becomes
payable, determine the amount of gratuity and give a notice in
writing to the person to whom gratuity is payable and to the
Controlling Authority, specifying the amount of gratuity so
determined. Sub-section (3) provides that the employer shall
arrange to pay the amount of gratuity within 30 days from the
date on which it becomes payable to the person to whom gratuity
is payable. Sub-section (4)(a) then provides that if there is any
dispute as to the amount of gratuity payable to an employee
under the Act or as to the admissibility of any claim or in relation
to an employee for payment of gratuity or as the person entitled
to receive the gratuity, the employer must deposit with the
Controlling Authority such amount as he admits to be payable.
Sub-section (4)(b) provides that upon there being a dispute with
regard to any matter, specified in clause (4)(a), the employer or
the employee or any other person raising the dispute, may make
an application to the Controlling Authority for deciding the
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dispute. The Controlling Authority has thereupon been
empowered to adjudicate upon the dispute. Section 7 of the
Payment of Gratuity Act provides that it is the duty of the
employer to calculate the amount of gratuity legally due to the
employee even if no application is preferred. Learned Appellate
Court has rightly observed that in case of Dnyanoba Vishnu
Sawant and others V/s. Sitaram Mills, Unit of National Textile
Corporation, North Maharashtra and another reported in 2017 II
CLR 414 it is observed that if there is recurring cause of action in
view of failure of the employer to make calculation under Section
7 of the Payment of Gratuity Act, the findings are to be recorded
as per the evidence on record and should be in consonance with
the provisions of the Act.
12. In view of above observations, the orders passed by
both the Authorities below need no interference at the hands of
this Court. Writ Petitions are accordingly dismissed with no
orders as to costs. Rule discharged.
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(MRS.VRUSHALI V. JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 24/07/2025 12:59:55