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TMI Blog2014 (2) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... d that amount of gratuity payable under the Gratuity Act, was Rs.2,53,855/- and the gratuity payable under the regulation being more beneficial to the employee, said amount was determined. Controlling authority as well as appellate authority have rightly rejected the said contention of the corporation by taking into consideration the definition of the word Rs.continuous service' and holding that there is no interruption in service rendered by third respondent. Said finding is based on scrutiny of records and not being contrary to Exhibit R-1, I do not find any other good ground to interfere with the said finding in exercise of writ jurisdiction. In that view of the matter the finding of the controlling authority by taking active years of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before first respondent and appellate authority by order dated 29.03.2010 has rejected the said appeal. Aggrieved by the said orders, petitioner is before this court questioning these two orders. 3. It is the contention of Smt.Nirmmala, learned counsel appearing for petitioner-corporation that corporation had determined the total number of active service of petitioner rendered at 28 years 11 months after giving deduction of 4 years 6 months and 12 days towards unauthorised absence, leave without wages and suspension period and by taking into consideration the last basic pay at Rs.13,738/- and thereafter determined the total amount of gratuity payable at Rs.3,97,257/- and income tax payable on said amount at Rs.27,983/- plus Rs.600/- tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no error in the said finding. She would also contend that corporation was not entitled to deduct the income tax amount from and out of the gratuity payable and as such said deduction made is liable to be made good by corporation to the respondent No.3. She also seeks for confirming the orders passed by respondents 1 and 2 and prays for dismissal of the writ petition. 5. Sri.Jagadeesh Mundaragi, learned Additional Government Advocate would also support the orders passed by the authorities and submits that by taking into consideration the entire facts as well as evidence, orders are passed which does not suffer from any infirmity and as such he seeks for dismissal of the writ petition. 6. Having heard the learned advocates appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount of Rs.3,68,674/- has been paid by the corporation to third respondent and this fact is also not disputed by learned counsel appearing for respondent no.3 before this court. 8. The point of controversy between the Rs.employee' and Rs.corporation' revolves under deduction made under two heads namely: (1) Income Tax (2) Number of years of active service taken into consideration i.e., 4 years 6 months 12 days deducted as unauthorised absence, leave without wages and suspension period. Re: Deduction towards Income tax: This court in the case of NWKRTC Vs Deputy Labour Commissioner and others in W.P.5759/2006 disposed of on 25.02.2008 has held that deduction of income tax on the gratuity amount to the extent of ceiling amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be found fault with. RE: Break in Service: On the one hand petitioner-corporation claims that 4 years 6 months and 12 days is to be deducted from the total active service rendered by third respondent which admittedly is 33 years 5 months, 17 days. Section 2A of the Gratuity Act defines Rs.Continuous Service' which reads as under: 2A Continuous Service:- "(1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive years of service at 33 years 5 months deserves to be accepted. 10. Thus, the total gratuity payable to third respondent by petitioner-corporation would be as under: (a) active years of service 33 years 5 months (b) last basic wage Rs.13,738/- Rs.13,738 X 33.5 = Rs.4,59,078/-(Rupees Four Lakhs Fifty Nine Thousand Seventy Eight Only). In view of the same, gratuity payable by the petitioner-corporation to third respondent would be Rs.4,59,078/- minus income tax which would be in accordance with law and finding given herein above. In the result following order is passed: ORDER 1. Writ petition is allowed in part. 2. Petitioner Corporation shall ascertain from the office of the Commissioner of Income Tax, the income tax deducta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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