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2016 DIGILAW 588 (RAJ)

Ratan Lal Tukliya v. State of Rajasthan

2016-04-27

J.K.RANKA, M.N.BHANDARI

body2016
JUDGMENT : By this writ petition, a challenge is made to the Rule 90(1)(c) of the Rajasthan Civil Services Pension Rules, 1996 (in short "the Rules of 1996"). 2. Learned counsel submits that Rule 90(1)(c) is hit by the Payment of Gratuity Act, 1972 (in short "the Act of 1972"). The payment towards gratuity flows from the Act of 1972 thus no rule or regulation can be made offending any of the provisions of the Act of 1972. Rule 90(1)(c) of the Rules of 1996 is offending Section 4(6) of the Act of 1972 thus should be struck down. A reference of Section 14 of the Act of 1972 has also been given. It is to show that provisions of the Act or rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. If Rules of 1996 have been made inconsistent to the provisions of the Act of 1972 then should not be applied. A reference of judgment of the Apex Court in the case of Chairman-cum-Managing Director Mahanadi Coalfield Limited v. Rabindranath Choubey, reported in 2014(1) S.C.T. 267 : (2013) 16 SCC 411 is given. Therein, the case has been referred to the Larger Bench looking to the different views of the Apex Court on the same issue. Further reference of judgments of the Apex Court in the cases of Government (NCT of Delhi) & Anr. v. K.Srivatsan, reported in 2014(4) S.C.T. 688 : (2014) 15 SCC 476 , State of Kerala & Ors. v. M. Padmanabhan Nair, reported in (1985) 1 SCC 429 , Jaswant Singh Gill v. Bharat Cooking Coal Ltd. & Ors., reported in 2007(1) S.C.T. 236 : (2007) 1 SCC 663 apart from State of Jharkhand & Ors. v. Jitendra Kumar Srivastava & Anr., reported in 2013(4) S.C.T. 429 : AIR 2013 SC 3383 has been given. Therein, a rule made by an establishment offending provisions of the Act of 1972 is not to be applied. The case in hand is covered by those judgments. 3. Rule 90(1)(c) of the Rules of 1996 denies benefit of gratuity during pendency of the departmental inquiry or a criminal case. Therein, a rule made by an establishment offending provisions of the Act of 1972 is not to be applied. The case in hand is covered by those judgments. 3. Rule 90(1)(c) of the Rules of 1996 denies benefit of gratuity during pendency of the departmental inquiry or a criminal case. The Apex Court has considered Section 4(6) in reference to the similar regulation and finding it to be inconsistent with Section 4(6), regulations were struck down. The petitioner herein has already retired but is facing criminal case. During pendency of the trial, benefit of gratuity has been denied in reference to the Rule 90(1)(c) of the Rules of 1996. 4. Learned counsel has made further reference of Annexure-14 and 15 where inconsistent stand has been taken by the Government. At the first instance, benefit of gratuity pending criminal case has been allowed but the department has denied it in reference to Rule 90(1)(c) of the Rules of 1996. 5. We have considered the submission made by learned counsel for petitioner and perused the record. 6. A challenge to the Rule 90(1)(c) of the Rules of 1996 has been made. The said provision is quoted thus for ready reference: "90. Provisional pension where departmental or judicial proceedings may be pending (1)(a) In respect of a Government servant referred to in sub rule (4) of Rule 7, the Director, Pension Department, Rajasthan, shall authorise the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant, or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension. Provided that in cases where pension case could not be prepared finally for one or the other reason the appointing authority shall sanction provisional pension in Form 33 after following procedure laid down in sub-rule (3) of Rule 86 and send the case to the Director, Pension for issue of Provisional Pension Payment Order till the Departmental Enquiry is finalised. (b) The provisional pension shall be authorised by the Director, Pension Department, during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (b) The provisional pension shall be authorised by the Director, Pension Department, during the period commencing from the date of retirement upto and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon: Provided that where departmental proceedings have been instituted under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for imposing any of the penalties specified in clauses (i) and (ii) of Rule 14 of the said Rules, the payment of gratuity shall be authorised to be paid to the Government servant. (2) Payment of provisional pension made under sub-rule (1) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.." 7. Rule 90(1)(c) of the Rules of 1996 restricts benefit of gratuity pending departmental inquiry and also criminal case. In view of above, the petitioner is not entitled to the gratuity during pendency of the criminal case. The validity of Rule 90(1)(c) of the Rules of 1996 has been challenged in reference to the provisions of the Act of 1972. 8. The first question for our consideration is as to whether the Act of 1972 applies to the petitioner and non-petitioner herein. Section 1 provides about application of the Act of 1972 thus it is also quoted hereunder: "1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. (3-A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act, notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten. (4) It shall come into force on such date as the Central Government may, by notification, appoint." The definitions of "employee" and "employer" given under Sections 2(e) and 2(f) of the Act of 1972 are also relevant thus quoted hereunder for ready reference: "(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment, to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity." (f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop- (i) belonging to, or under the control of, the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned. (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority, (iii) in any other case, the persons, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person." 9. The perusal of Section 1 shows application of the Act of 1972 on every factory, mine, oilfield, plantation, port and railway company, etc. It applies even to every shop and establishment within the meaning of shop and establishment Act of the State concerned and where ten or more persons are employed. The Act of 1972 applies even to the establishment so notified by the Central Government. The petitioner herein does not fall in any of the category given under Section 1 of the Act of 1972. 10. Section 2(e) gives definition of "employee". The petitioner herein has not been employed either in a factory or a mine or any other establishment described therein. The definition aforesaid excludes any such person who holds the post in the Central or State Government which is governed by any other Act or the rules providing for payment of gratuity. The petitioner herein had served the State Government and is excluded from the definition of "employee". The definition of "employer" does not include the State Government. 11. In view of above, learned counsel for petitioner could not clarify as to how the provisions of the Act of 1972 apply in the case in hand. If the Act of 1972 does not apply rather the petitioner herein has been specifically excluded from the definition of "employee" given under Section 2(e), Section 14 cannot have its operation to other legislation, which is not flowing from the Act of 1972. The Act of 1972 can have overriding effect provided employee or employer are governed by the said Act and if any provision of the Rule or Regulation is found to be inconsistent and not otherwise. 12. The Act of 1972 can have overriding effect provided employee or employer are governed by the said Act and if any provision of the Rule or Regulation is found to be inconsistent and not otherwise. 12. In the light of aforesaid, only argument of the learned counsel for petitioner that Rule 90(1)(c) of the Rules of 1996 infringes the provisions of the Act of 1972, cannot be accepted. As per definition of "employee" referred above, Government employees are excluded from the definition, if governed by separate legislation. The State of Rajasthan is having separate provisions for pension and gratuity. The petitioner is entitled to the benefit of gratuity at the rate provided under the Rules of 1996. In view of above, we are unable to accept that Rules of 1996 are flowing from the Act of 1972 thus cannot be allowed to be inconsistent with its provisions. 13. The reference of various judgments of the Apex Court has been given. In the case of Chairman-cum-Managing Director Mahanadi Coalfield Limited v. Rabindranath Choubey (supra), the question has been referred to the Larger Bench. We find that case therein was covered by the Act of 1972. Any regulation inconsistent with the provisions of the Act of 1972, needs to be addressed not only in reference to Section 14 of the Act of 1972 but Section 4(6) of the Act of 1972. The other judgments were given in reference to particular rule applicable on the employees and accordingly interpretation was given. The judgment of the Apex Court thus cannot be applied to the facts of this case. 14. An oilfield or a mine or a factory is governed by the Act of 1972. An employee therein so as the employer fall in the definition under Section 2(e) and 2(f). The judgments of the Apex Court are thus in reference to the provisions of the Act of 1972. A specific reference of Section 4(6) of the Act of 1972 has been given therein. It provides as to when benefit of gratuity can be denied. As per Section 4(6) of the Act of 1972, the benefit of gratuity can be denied on termination by way of punishment in a given case. The Apex Court answered the issue in reference to the regulation dehors the Section 4(6). It was a case where denial of gratuity pending departmental inquiry or criminal case was to a retired employee. As per Section 4(6) of the Act of 1972, the benefit of gratuity can be denied on termination by way of punishment in a given case. The Apex Court answered the issue in reference to the regulation dehors the Section 4(6). It was a case where denial of gratuity pending departmental inquiry or criminal case was to a retired employee. The Apex Court found that a retired employee cannot be subjected to punishment of termination thus only bar exists under Section 4(6) to deny benefit of gratuity, cannot be applied. The rules applies for denial of gratuity while an employee is in service and can be governed by Section 4(6) and not to a retired employee. The question raised before the Apex Court was answered accordingly. The other judgments were in reference to the provision different than applicable in this case. 15. The reference of Rule 2(p) and 7 of the Rules of 1996 is relevant here and applies. The definition of pension under Rule 2(p) includes gratuity. Rule 7 provides for denial of benefits in certain cases which included conviction in criminal case. The Rules aforesaid were considered by this court in the case of State of Rajasthan v. Shankerlal in D.B. Special Appeal No.1833/2008, decided on 09.05.2012. The denial of gratuity was held legal in reference to the Rules referred above. 16. In the instant case, Rules of 1996 are not flowing from the Act of 1972. The State Government under its wisdom made provisions for pension and gratuity to their employees and accordingly to be governed by the Rules of 1996. Since we are of the opinion that Rule 90(1)(c) of the Rules of 1996 is not flowing from the Act of 1972, the argument raised by learned counsel for petitioner cannot be accepted to hold it to be inconsistent to the provisions of Section 4 of the Act of 1972. None of the judgments cited by learned counsel for petitioner refers the issue as has been raised herein. In view of above, we do not find any merit in the writ petition to challenge the constitutional validity of Rule 90(1)(c) of the Rules of 1996. The writ petition is accordingly dismissed along with stay application. It is however made clear that the Government should not take inconsistent stand as exists in Annexure-14 and 15. In view of above, we do not find any merit in the writ petition to challenge the constitutional validity of Rule 90(1)(c) of the Rules of 1996. The writ petition is accordingly dismissed along with stay application. It is however made clear that the Government should not take inconsistent stand as exists in Annexure-14 and 15. When specific bar exists under Rule 90(1)(c) of the Rules of 1996 to deny benefit of gratuity pending criminal case, the Government should not make opinion contrary to the Rules of 1996.