JUDGMENT G.P. Mathur, J.
1. The Controlling Authority under the Payment of Gratuity Act (hereinafter referred to as the Act) allowed the application moved by respondent No. 3 and held that he was entitled to Rs. 5,152.50 p.
as gratuity and this order was affirmed in appeal by the Appellate Authority. Feeling aggrieved the U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) has filed the present writ petition.
2. Muneshwar Prasad Srivastava, respondent No. 3 was initially appointed, as Assistant Mechanic, which was a non-pensionable post in the erstwhile U.P. Government Roadways on September 2, 1949. He was promoted to the non-pensionable post of mechanic on March 5, 1959 in the same department. A Notification was issued by U.P. Government on October 25, 1960 under which certain posts like Junior Foreman onwards were declared as pensionable. Respondent No. 3 was promoted as Junior Foreman on May 14, 1964. U.P. State Road Transport Corporation was created under Section 34 of Road Transport Corporation Act, 1950 on June 1, 1972 and it succeded in toto to the assets and liabilities of the erstwhile U.P. Government Roadways by virtue of a notification issued by the Government on June 30, 1972. Subsequently all the employees of the erstwhile U.P. Government Roadways including respondent No. 3 were sent on deputation with the Corporation vide Notification dated June 7, 1972 and July 15, 1972. All the employees who were sent on deputation were absorbed in the Corporation on August 28, 1982. The respondent No. 3, however, retired from service on December 21, 1975 when he was working on deputation with the Corporation. He gave an application for payment of pension and gratuity to him on December 1, 1975. Provisional pension and gratuity were sanctioned by the General Manager of the Corporation vide order dated May 29, 1976. The Accountant General U.P. thereafter sanctioned pension and Rs. 1,740/- as gratuity by the Order dated October 30, 1976. The U.P. Government made Contributory Fund Rules, 1933 for those Government Servants who were holding non-pensionable posts. Subsequently a scheme known as Contributory Provident Fund, Pension and Insurance Scheme was introduced by the Government for those employees who were holding pensionable posts.
3. Respondent No. 3 moved an application on October 5, 1976 before the Controlling Authority under the Payment of Gratuity Act on the ground inter alia that he had worked for 27 years as an employee of the Corporation and had attained the age of superannuation on December 31, 1975, that he had given an application to his employer for payment of gratuity to him, but they offered to pay much less than what he was entitled under Section 4 of the Act and therefore, a direction may be issued to the employer to pay him gratuity to which he was legally entitled under the Act. The application was contested by the petitioner-Corporation on the ground inter alia that respondent No. 3 was an employee of U.P. Government Roadways which was a department of the State Government and after creation of the U.P. State Road Transport Corporation w.e.f. June 1, 1972 he continued to work on deputation with the said department; that his status was that of a Government Servant and he continued to hold lien in the State Government; that the respondent No. 3 was a civil servant and he was governed by all Rules and Regulations and Fundamental Rules, as applicable to other Government employees and that on account of his holding a post under the State Government he was not an 'employee' and as such the provisions of the Act were not applicable to him.
4. The Controlling Authority held that respondent No. 3 was an employee of the Corporation and as the provisions of Payment of Gratuity Act were applicable to the Corporation, he was entitled to gratuity for the period October, 1949 to May 13, 1964. The Appellate Authority affirmed the findings of the Controlling Authority on the ground that respondent No. 3 did not hold a civil post under the State Government.
5. Sri S.K. Sharma, learned counsel for the Corporation has contended that Section 4 of the Act provides that gratuity shall be payable to an employee on the termination of his employment either on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease after the said employee had rendered continuous service for not less than five years. The word 'employee' has been defined in Section 2(e) of the Act and prior to its amendment by Act No. 25 of 1984 it did not include any such person who held a civil post under the Central Government or a State Government. It is further contended that respondent No. 3 was appointed in the erstwhile U.P. Government Roadways and even after the creation of the U.P.S.R.T.C. on June 1, 1972 and his going on deputation to the said Corporation on July 15, 1972, his status did not change and he continued to be an employee of U.P. Government when he retired from service on December 31, 1975 and therefore, being holder of a civil post under the State Government, he was not covered by the provisions of Payment of Gratuity Act. Learned counsel for contesting respondent has on the other hand contended that after all the employees of the U.P. Government Roadways were sent on deputation to the; Corporation on July 15, 1972, they became employees of the Corporation and as such they ceased to hold a post under the State Government and therefore, the provisions of the Act were fully applicable and the orders passed by the Controlling Authority as well as Appellate Authority are perfectly correct.
6. The main question to be considered is as to what was the status of the employees of the erstwhile U.P. Government Roadways who went on deputation to the Corporation on July 15, 1972 and prior to their absorption in the Corporation on August 28, 1982. Since respondent No. 3 retired on December 31, 1975 we do not have to take into consideration the result of final absorption of the employees in the Corporation. It is not necessary to consider the effect of the provisions of the Road Transport Corporation Act, the creation of the Corporation and also the various Notifications issued by the State Government in this regard in detail as the same question has engaged the attention of this Court earlier. A Division Bench in Jagdish Prasad Gupta v. State of U.P. (1980-II-LLJ-48), speaking through Hon'ble K.N. sINGH, J. (as His Lordship then was) held as follows at page 87 :
"The question whether the jural relationship of master and