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2021 DIGILAW 11 (TRI)

Tarun Kumar Sinha v. State of Tripura

2021-01-27

S.TALAPATRA

body2021
ORDER S. Talapatra, J. - Heard Ms. S. Debgupta, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents No.1 and 2 and Ms. P. Dhar, learned counsel appearing for the respondent No.3. 2. By means of this writ petition, the petitioner has urged this court to direct the respondents to pay his gratuity, payable within the upper limit at Rs.20,00,000/-, instead of Rs.4,00,000/- on which he has been paid his gratuity by the respondent No.2. By means of the amendment, carried out in Sub-Section-3 of Section-4 of the Payment of Gratuity Act, 1972, the earlier provision of relating to maximum limit for payment of gratuity has been rephrased in the following manner: "The amount of gratuity payable to an employee shall not exceed. Such amount as may be notified by the Central Government from time to time. "The Central Government having regard to the said provision [Sub-Section-3 of Section-4 of the Payment of Gratuity Act, 1972] has specified the amount for gratuity to be paid to an employee under the said Act. It has been notified that the amount shall not exceed Rs.20,00,000/- [see A.O.1420(E) dated 29.03.2018]. Prior to the said notification, the amount as referred in Sub-Section-3 of Section-4 of the Payment of Gratuity Act, 1972, was Rs. 10,00,000/-, which was enhanced from Rs.4,00,000/-, by virtue of the amendment Act 12 of 2018 which has come into effect from 29.03.2018. According to the petitioner, his gratuity is to be paid in terms of the said amendment or enhancement which was lastly made on 29.03.2018. But the respondents have seriously resisted such prayer by stating that the petitioner's payment of gratuity would be regulated by Rule-9 of Tripura State Civil Services (Revised Pension) Rules, 2017 which provides, inter alia, as under: "The existing ceiling limit of Death-cum-Retirement Gratuity shall stand enhanced from Rs.4.00 lakhs to 10.00 lakhs for employees proceeded on superannuation/retirement on or after 01.04.2017. The other conditions of the existing formula of computation of DCRG amount will remain unchanged." 3. Ms. S. Debgupta, learned counsel appearing for the petitioner has submitted that when there is a conflict between the provision made by the Central Government acting on the statutory provision, that shall be binding on the State Government. The other conditions of the existing formula of computation of DCRG amount will remain unchanged." 3. Ms. S. Debgupta, learned counsel appearing for the petitioner has submitted that when there is a conflict between the provision made by the Central Government acting on the statutory provision, that shall be binding on the State Government. In support of that contention, she has relied on a decision of this court in Lal Zakim Rokhum versus Tripura Road Transport Corporation and Other [judgment and order dated 20.02.2020 delivered in WP(C)No.1209 of 2019]. This court in the said decision having relied on Sri Bhupati Debnath versus State of Tripura and Others [judgment and order dated 13.02.2020 delivered in WP(C)No.1054 of 2019] and Smt. Mamata Singha Roy versus State of Tripuraand Another [judgment and order dated 13.02.2020 delivered in WP(C)No.1057 of 2019] has observed that the gratuity shall be payable in terms of the enhanced rate. 4. On a critical scrutiny of the referred judgment in Bhupati Debnath (supra) it is noticed that in the judgment, this court had occasion to observe as follows : "10. It can thus be seen that insofar as the payment of gratuity, its computation and the ceiling up to which such amount can be paid as referred to in Section 4 of the said Act, the term "appropriate Government" has no bearing. This distinction is also apparent from the statement of objects and reasons which provides that for the purpose of uniformity, the Central Act was envisaged. At the same time, appropriate Government is for the purpose of administering the Act. The ceiling limit for payment of gratuity is provided in sub-section (3) of Section 4. Previously, such ceilings were contained in the sub-section itself. Pursuant to amendment by virtue of Act 12 of 2018 the power to prescribe such ceiling has been vested in the Central Government to be exercised by issuing notification in this regard. It is in exercise of such delegated powers of legislation that the Central Government has issued a notification dated 29.03.2018 which reads as under: "S.O. 1420 (E). In exercise of the powers conferred by sub-section (3) of section 4 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies that the amount of gratuity payable to an employee under the said Act shall not exceed twenty lakh rupees." 11. In exercise of the powers conferred by sub-section (3) of section 4 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies that the amount of gratuity payable to an employee under the said Act shall not exceed twenty lakh rupees." 11. This revised ceiling thus would apply to all establishments irrespective of whether they are controlled or governed by the State or the Central Government as the appropriate Government. The stand of the respondents, therefore, that unless and until such revised ceiling of payment of gratuity is adopted by the State Government, the employees of the said corporation cannot claim benefit of such revised limit cannot be accepted. Revised ceiling limit of Rs.20,00,000 (rupees twenty lakhs) would be applicable to the petitioner." 5. In Bhupati Debnath(supra), this court has devised that the revised ceiling thus would apply to all establishments irrespective of whether they are controlled or governed by the State or the Central Governments. But the stand of the respondents, therefore, that unless and until such revised ceiling of payment of gratuity is adopted by the State Government, the employees of the government cannot claim benefit of such revised limit. The similar been in respect of the revised ceiling limit of Rs.20,00,000 (Rupees twenty lakhs) in Bhupati Debnath(supra) has been rejected by this court. 6. Mr. D. Sharma, learned Addl. G.A. appearing for the respondents No.1 and 2 has robustly contended that there remains space to revisit the said judgment of Lal Zakim Rokhum (supra) inasmuch as Section-1(c) of the Payment of Gratuity Act, 1972 provides that such other establishments or class of establishments besides the establishment as catalogued in Section-1(3)(a)(b) of the Payment of Gratuity Act in which ten or more employees are employed, or were employed on that day of the preceding twelve months, will be in the purview of the Payment of Gratuity Act. He has referred to Section 2(e) for a conjoint reading for the said purpose. Section 2(e) defines "employee" as any person (other than an apprentice) who is employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop or other establishments to which the said Act applies. The subsequent lines of that provision, thereafter, have been referred by Mr. Sharma, learned Addl. G.A. with emphasis. Section 2(e) defines "employee" as any person (other than an apprentice) who is employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop or other establishments to which the said Act applies. The subsequent lines of that provision, thereafter, have been referred by Mr. Sharma, learned Addl. G.A. with emphasis. That part makes exception to the proceeding line or words in defining 'employee.' That definition does not include (1) any such person who holds a post under the Central Government or a State Government and (2) is governed by any other Act or by any rules providing for payment of gratuity. For such exclusion both the conditions shall have to be satisfied. According to Mr. Sharma, learned Addl. G.A., the payment of gratuity of the petitioner, who was a State Government employee working under the subordinate judiciary shall be guided by Tripura State Civil Services (Revised Pension) Rules, 2017 which has come into force with effect from 01.04.2017 [see Rule-1(2) of the said Rules]. 7. Mr. Sharma, learned Addl. G.A. has further submitted on the basis of the reply that since the petitioner has not exercised the option to get the benefit of Tripura State Civil Services (Revised Pension) Rules, 2017, he will not even get the maximum limit of Rs. 10,00,000/-. This court is unable to accept such claim inasmuch as there is no provision for exercising option in respect of the enhanced limit of gratuity. 8. As noted above, Rule-9 prescribes the maximum limit of gratuity at Rs.10,00,000/-. Mr. Sharma, learned Addl. G.A. has strenuously contended that after the Central Government has enhanced the maximum limit of payment of gratuity to Rs.20,00,000/-. no revision or amendment in the said Rule has taken place. As such, the payment of gratuity of the petitioner will be governed by the said Rule-9 and hence, he cannot be paid more than Rs.10,00,000/-. 9. Having appreciated the submissions of the learned counsel appearing for the parties, an apparent conflict between Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 and Section-4(3) of the Payment of Gratuity Act has emerged. 9. Having appreciated the submissions of the learned counsel appearing for the parties, an apparent conflict between Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 and Section-4(3) of the Payment of Gratuity Act has emerged. Since, the Central Government has enhanced the maximum limit of gratuity to Rs.20,00,000/- by the notification as stated above and it is noticed that in the past the state has followed the maximum limit for payment of gratuity co-terminus to what had been determined by the Central Government, there is a pressing necessity to revisit the said provision. In view of the definition of "employee" as provided in Payment of Gratuity Act and for separation of power between the Central Government and the State Government in respect of the employment and other related areas regarding the state government employees, no doubt that the state government has the authority to determine the pay and allowances and other benefits of the state government employees. But Payment of Gratuity Act, 1972 being a piece of central legislation has its own sway. Therefore, the state government is not expected to take a contrary stand, even though, the notification determining the maximum limit of the payment of gratuity Act has been issued by the Central Government pursuant to the power conferred by Sub-Section-3 of Section-4 of the Payment of Gratuity Act, 1972. 10. A former notification for amendment by the state government would dispel the confusion that is reigning for the time being. In defining 'employee', it has been provided that the central government and the state government employees have been excluded from the definition of employee for purpose of the Payment of Gratuity Act, 1972 if their payment of gratuity is regulated by the separate Act or the Rules. Those employees who are working under the central government or the state government would stand excluded from the definition of employee [see Section-2(1) of the Payment of Gratuity Act, 1972], in the event if their payment of gratuity is governed by any other Act or by any Rules providing for payment of gratuity. In the present case, the state government employees are governed by Tripura State Civil Services (Revised Pension) Rules, 2017. As such, the petitioner may not be treated as 'employee' for general purpose of applying the provisions of the Payment of Gratuity Act, 1972. 11. In the present case, the state government employees are governed by Tripura State Civil Services (Revised Pension) Rules, 2017. As such, the petitioner may not be treated as 'employee' for general purpose of applying the provisions of the Payment of Gratuity Act, 1972. 11. The state government shall revisit Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 as it appears emergent in view of the judgment of this court in Bhupati Debnath(supra) having regard particularly to para-11 of the said judgment and take the proper decision as regard enhancing maximum limit, as has been done by the central government vide their notification dated 29.03.2018. It is expected that the parity in payment of gratuity be maintained as has been earlier maintained by the state government in terms of the provisions of Section 4 (3) of the Payment of Gratuity Act, 1972. However, until such exercise is done, and which shall be done within a period of three months from the date when a copy of this order is made available to the respondents by the petitioner, gratuity of the petitioner be paid for the time being on the basis of the maximum limit of Rs. 10,00,000/- within a period of six weeks with interest @ 7% from the day when that fell due. It fell due on the day after expiry of 30 days from the date of retirement. There is no dispute about the limit in view of Rule-9 of the Tripura State Civil Services (Revised Pension) Rules, 2017 which according to the respondents, governs the determination of the gratuity of the petitioner. The remainder of the gratuity be paid from the same date when the gratuity fell due i.e. after one month from the date of superannuation or from any other date as might be notified, with same rate of interest. In terms of the above, this writ petition stands allowed.