TMI Blog2006 (7) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Hence the appeal is dismissed. Principally, relying on the said decision, the Respondent filed an original application before the Central Administrative Tribunal claiming payment of gratuity on the same terms and for recovery of purported arrears of the difference of gratuity. The Tribunal by an order dated 25.2.2004 directed the Appellant to consider the Respondent's case whereupon a speaking order was passed by the Appellant on 4.6.2004 inter alia holding that the case of the Respondent was not governed by the provisions of the 1972 Act but by the provisions of the Railway Services (Pension) Rules, 1993 (for short the 1993 Rules ). Another original application was filed by the Respondent questioning the validity of the said order before the Tribunal which was registered as OA No. 576 of 2004. The said application was allowed by an order dated 1.12.2004 holding inter alia: Mr. De, the learned counsel for the respondents to a query replied that Pritam Singh case was complied with by the Railway Authorities. It is most unfortunate to state here that the DRM treated the matter in a different manner in order to avoid payment and has passed such illegal order by stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be given a liberal construction. Mr. Banerjee furthermore contended that the decision of the Joint Consultative Machinery (JCM) to pay 20% dearness allowance in emoluments for the purpose of gratuity being not a decision under a legislative Act, the same is subservient to the provisions of the 1972 Act. In any event, the Fifth Pay Revision Commission having made an interim report that 90% of dearness allowance should be paid to the employees who have retired from 1.4.1995 to 31.12.1995, there is no reason as to why the Respondent should be deprived from the benefit thereof. The 1972 Act was enacted to provide for a scheme inter alia for payment of gratuity to employees in relation to railway companies. Section 2(e) of the 1972 Act defines 'employee' to mean any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns the pay in the revised scales under the Fourth Pay Commission Report. Following representations made on behalf of the employees; the Central Government in a JCM conceded grant of a part of dearness allowance to be reckoned as dearness pay (DP) for the purpose of computing the amount of gratuity and the same was treated an additional advantage over and above those allowed in the recommendations of the Fourth Pay Commission. The quantum of such dearness pay was taken on the Consumer Index as on 1.7.1988 and 20% of dearness allowance was declared to be payable as dearness pay. Such benefit was extended also to the railway employees whose retirement had taken place on or after 16.9.1993. The Tribunal indisputably granted relief to the Respondent solely relying on or on the basis of the decision in Pritam Singh. In Pritam Singh's case indisputably the question as regards non-applicability of the 1972 Act and consequent applicability of the 1993 Rules had not arisen for consideration. The controlling authority in Pritam Singh's case proceeded on the basis that the provisions of the 1972 Act were applicable. The Tribunal in Pritam Singh opined: The Controlling Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing otherwise. Submission of Mr. Banerjee that if the 1972 Act applies to an establishment belonging to a railway company and the persons specified in Section 2(f) are the employers, despite exclusion of railway servants governed by the provisions of the 1993 Rules from the purview of the definition of 'employee' in terms of Section 2(e) of the Act, the case shall be governed by the 1972 Act, cannot be accepted. The High Court noticed the definition of 'employee' contained in Section 2(e) of the 1972 Act but while deciding the issue it fell into an error in coming to the conclusion that there was nothing in the 1972 Act so as to exclude the benefit thereof to a railway employee. It failed to properly construe the said provision. The Kerala High Court in M.P. Sankara Pillai (supra), whereupon strong reliance has been placed by Mr. Banerjee, was considering a case of casual labour. Indian Railway Administration although was held to be an establishment within the meaning of the 1972 Act, it was clearly stated that where the person was employed in Railway Administration as casual labourer on wages not exceeding ₹ 1000/- per mensem and was holding Civil Po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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