GDS NOW ELIGIBLE FOR GRATUITY ACT
WIDOW OF A GDS WINS GREAT LEGAL BATTLE
The Widow of a deceased GDS BPM has recorded a great victory in the Court of law, which has a significant, and far reaching positive impact on the question of payment of Gratuity to the entirety of Gramin Dak Sevaks in the Department of Posts.
On the death of her husband who was working as a GDS in Hoshiarpur Division in Punjab Circle, Smt.Sham Dulari filed a case before the Controlling Authority appointed under the Payment of Gratuity Act, 1972 claimed a sum of Rs.57,692/- as gratuity for the period of service rendered by her husband (18 years 9 months and 25 days), which was far greater than the amount being paid to the GDS by the Department of Posts at present under the Gramin Dak Sewak (Conduct and Employment) Rules, 2001.
The Department argued that the GDS are covered by the EDA Rules 1964, which are now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001 that regulate the payment of gratuity to the workman and, the Gratuity Act would not be applicable to them. Under the above Rules the workman respondent has already been paid the gratuity amounting to Rs.16,520/- and no further gratuity is payable as the provisions of the Gratuity Act which do not apply to the instant case.
The Controlling Authority rejected the argument of the Department of Posts and ordered payment of another Rs.12,286/- with interest @ 10% w.e.f. 25.12.2001to the widow over and above the gratuity amount paid to her by the Department of Posts.
The Department of Posts appealed against the order to the Appellate Authority of Gratuity Act. The Appellate Authority also rejected the argument of the Department by stating that it is transparently clear that the post held by the husband of the respondent/applicant was a post not governed under CCS (Pension) Rules as the respondent/employee was Extra Departmental Branch Postmaster in the establishment of Postal department and as such he was not holding a post under the Central Government. The service condition of the workman was governed under provisions of Extra Departmental Agents now known as Gramin Dak Sewaks but the provisions of the act are less favourable than the Payment of Gratuity Act,19072. Hence, the learned Controlling Authority has rightly held that the respondent/employee is an employee within the purview of Section 2(e) of the Payment of Gratuity Act,1972. Therefore the Appellate Authority upheld the order of the Controlling Authority also.
The Department of Posts then went to the High Court of Punjab and Haryana appealing against the above orders. The High Court of Punjab and Haryana also rejected the position of the Department through its Judgment clearly stating that There is no declaration under Section 5 exempting the application of the Gratuity Act to Extra Departmental Agents. Moreover, the EDA Rules are not more beneficial than the benefits, which are available to the respondent- workman under the Gratuity Act. Such a declaration could not have been given by the competent authority exempting the Extra Departmental Agents from the operation of the provisions of the Gratuity Act. Therefore, on principle as well as on precedents, we have reached the conclusion that the view taken by the Controlling Authority as well as Appellate Authority are not open to any attack in law and it does not furnish any opportunity to interfere with the same. Therefore, we are inclined to uphold the order dated August 21, 2003 (P-3) passed by the Controlling Authority and the order dated January 5, 2006 (P-6) passed by the Appellate Authority. The argument of the learned counsel that the respondent workman is not covered by the definition of expression 'employee' as used in Section 2 (e) of the Gratuity Act does not require any detailed consideration because of the view expressed by the Hon'ble Supreme court in Dharam Parkash Sharma's case (supra). In that case also Central Civil Service (Pension) Rules, 1972 were adopted by the Municipal Corporation, yet the Hon'ble Supreme Court held that the Gratuity Act would apply in view of Section 5 read with Section 14 of the Gratuity Act. Therefore, we have no hesitation in rejecting the argument raised on behalf of the petitioner- department.
For the reasons aforementioned, this petition fails and the same is dismissed. Accordingly, we direct that the respondent- workman be paid her dues within a period of one month from today, failing which the respondent- workman shall be entitled to interest at the rate of 9% per annum from the date, the amount became due till the date of actual payment.
The Department went on SLP in the Supreme Court as usual. The Honourable Supreme Court also dismissed the SLP on 7.12.2007.
Therefore the Government now has to pay the gratuity to the widow of the deceased GDS as per the Gratuity Act, 1972, which states that Gratuity is a lump sum payment made by the employer as a mark of recognition of the service rendered by the employee when he retires or leaves service. According to this Act the Gratuity is payable @ 15 days wages for every year of completed service or part thereof in excess of six months. In case of seasonal establishment, gratuity is payable @ 7 days wages for each season. Wages will include basic and D.A. The daily wages in respect of piece rated employees are to be computed on the average of the total wages received by an employee for a period of three months. The maximum amount of Gratuity payable is Rs. 3.5 lakhs.
This is a landmark Judgment and the three lakhs of Gramin Dak Sevaks stand benefited immensely.
The NFPE has immediately taken it up with the Government of India by writing to the Honourable Prime Minister of India for immediate extension of the benefit of the Judgment to all Gramin Dak Sevaks without any delay by making necessary changes in the Rules, since the retiring GDS every day shall not be losing the benefit.
NFPE LETTER TO PRIME MINISTER OF INDIA
No. PF-49 (f) / 72 Dated: 27th December 2007
Shri. Manmohan Singh,
Honourable Prime Minister,
Government of India
New Delhi – 110001
Sub: Request for extension of the benefit of the Supreme Court Judgment on Gratuity to three lakhs of Gramin Dak Sevaks in the Department of Posts – reg.
Ref: Supreme Court Judgment on SLP [Civil] No.21309/2006 upholding the Judgment of High Court of Punjab and Haryana CWP No.7576/2006.
This Federation hastens to submit to your very kind consideration the recent landmark judgment of Honourable High Court of Punjab and Haryana which stands upheld by the Honourable Supreme Court of India admitting payment of Gratuity under the Gratuity Act, 1972 to the widow of a deceased Gramin Dak Sevak under the Department of Posts, for causing kind orders by the Government of India extending the above benefit to the entirety of the Gramin Dak Sevaks in the Postal Department.
You may be aware Sir, that the Gramin Dak Sevaks are all along being discriminated on many matters including the payment of gratuity. Even a favourable recommendation by the Justice Talwar Committee constituted by the Government of India was not implemented on this issue. These workers are being paid only a consolidated sum of Rs.18,000/- despite serving under the Department of Posts for more than 30 to 45 years as the backbone of the rural postal services.
The recent Judgment of the above Honourable Courts dismissing the appeal and special leave petition of the Department of Posts have upheld the orders of the Controlling and Appellate Authorities of Gratuity Act, 1972 who p laced reliance on Section 14 of the Act and held that payment of gratuity to any person cannot be denied on the ground of any other provision in any other Act/ Statute or Rules. Therefore, the plea of the Department of Posts that only under the EDA Rules the gratuity is payable and that would take the case of the Gramin Dak Sevaks out of the purview of the Gratuity Act has been summarily rejected .
The Honourable Courts have clearly upheld the orders of the Authorities of Gratuity Act that though the service condition of the workman was governed under provisions of Post and Telegraph Extra Departmental Agent (Conduct) Service Rules, 1964 now known as Gramin Dak Sewak (Conduct and Employment) Rules, 2001, since the provisions of the above act are less favourable than the Payment of Gratuity Act, 1972, the respondent / employee is an employee within the purview of Section 2(e) of the Payment of Gratuity Act,1972" and thus ordered payment of gratuity under the Gratuity Act, 1972.
This Federation places the fact for your kind consideration that every day a number of such Gramin Dak Sevaks are retiring from service without receiving the eligible gratuity and requests your very kind intervention to order necessary amendment to the Gramin Dak Sewak (Conduct and Employment) Rules, 2001 that regulates payment of gratuity to these workmen as per the Gratuity Act, 1972 to ensure payment of gratuity @ 15 days wages per year of service as per the provisions of the Gratuity Act, 1972 and end the age-old discrimination being perpetrated to these rural postal employees.
Thanking you Sir,
Copy submitted to:
Department of Posts,
Dak Bhawan, New Delhi – 110001: for kind information and necessary action.
Secretary General NFPE