Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 328 (TRI)

Asish Kanti Saha v. State of Tripura

2022-08-08

ARINDAM LODH

body2022
JUDGMENT 1. Since common questions of law and facts are involved, all the writ petitions are taken up together for disposal at the admission stage itself by this common judgment on the consent of learned counsels appearing for the parties. 2. In all the writ petitions the petitioners have prayed for a direction from this court upon the respondents to cause full and final payment of gratuity to the petitioners after adjusting the partial payment already made to them. They have also prayed to direct the respondents to give interest @ 9% per annum on the amount that has been already paid to them. The petitioners were working under the respondent nos. 3 and 4, and on attaining the age of superannuation they have retired on different dates. Necessary particulars in respect of their dates of retirement and claims are mentioned in the table below: Sl. No. Name of the petitioner in connected writ petition Date of retirement Entitled amount of gratuity 1. Sri Ashish Kanti Saha, WP(C) No. 544 of 2022 30.09.2021 Rs. 20,13,327/- 2. Sri Nikhil Das, WP(C) 545 of 2022 31.08.2021 Rs. 15,50,050/- 3. Sri Nirode Debbarma, WP(C) 546 of 2022 31.10.2021 Rs. 16,44,593/- 3. Ms. A. Debbarma, learned counsel appearing for the petitioners has submitted that these petitions are covered by the judgment of learned Single Judge dated 16.03.2021 passed in WP(C) No.738 of 2020 with other connected petitions, titled as Shri Ashok Debbarma v. The State of Tripura and Ors. 4. Heard Mr. Kohinoor N Bhattacharjee, learned panel counsel and Mr. K. De, learned Addl. G.A. appearing on behalf of the State-respondents and Mr. K.C. Bhattacharjee, learned counsel appearing on behalf of the Respondent-TRTC. Learned counsels for the respondents do not oppose the proposition of Ms. A. Debbarma, learned counsel for the petitioners. 5. I have gone through the aforesaid judgment passed by learned Single Judge and considered. The relevant portion of the judgment of the learned Single Judge may be reproduced here-in-below: '[4] Mr. Nath, learned counsel appearing for the petitioners has emphatically submitted that the respondents are under statutory obligation in view of the Section 7(3) of the Payment of Gratuity Act, 1972 to pay the petitioners full gratuity within 30 (thirty) days from the date of their superannuation. But it is evident from the table above that such amount was not paid in time. For example, Mr. But it is evident from the table above that such amount was not paid in time. For example, Mr. Nath, learned counsel has submitted that a lump sum of Rs.10,00,000/- has been paid to the writ petitioners and the said lump sum was paid on several dates as mentioned in the table above. [5] Mr. Nath, learned counsel has further submitted that by the amendment carried out in sub-section 3 of Section 4 of the Payment of Gratuity Act, 1972, the words 'amount as may be notified from time to time by the Central Government' has been incorporated and the Central Government in exercise of that authority has issued the notification under No.S.O 1420(E) dated 29.03.2018 by enhancing the maximum amount of the gratuity not exceeding twenty lakh rupees. [6] All the petitioners have retired from their services after 29.03.2018. Therefore, they are entitled to get the remainder of the gratuity beyond Rs.10,00,000/- which was maximum amount of gratuity prior to the said notification as issued by the Central Government in view of the subsequent amendment carried out in sub section 3 of Section 4 of the Payment of Gratuity Act. The said amount has not been paid to the petitioners most arbitrarily. The petitioners had filed representation for release of the said amount with interest. But that was not attended to and there had been no positive yeild. [7] Mr. Nath, learned counsel has further submitted that by the notification No.F.6(13)Fin(G)86 dated 08.04.1997, Joint Secretary to the Government of Tripura, Finance Department has notified that in the event of non-payment of gratuity in time, interest should be paid. The said notification dated 08.04.1997 stipulates as under: '4. The prescribed rate of interest will be: a) beyond 3 months after the gratuity becomes due and up to one year 7% per annum. b) beyond one year, 10% per annum. The interest would be payable till the end of month prescribe the month in which the payment of DCR gratuity is actually due. c) The period of 3 months shall be reckoned from the date of retirement /death, for payment of interest. d) This will come into force with immediate effect.' [8] Mr. b) beyond one year, 10% per annum. The interest would be payable till the end of month prescribe the month in which the payment of DCR gratuity is actually due. c) The period of 3 months shall be reckoned from the date of retirement /death, for payment of interest. d) This will come into force with immediate effect.' [8] Mr. Nath, learned counsel has finally submitted that a similar controversy has been determined by this court in Lal Zakim Rokhum vs. Tripura Road Transport Corporation and Another (Judgment dated 20.02.2020 in WP(C) 1209 of 2019), (Annexure 2 to the writ petition). On perusal of the said judgment, it appears that in the said judgment, the precedents in the similar circumstances have been considered by the learned single judge and thereafter it has been observed that the respondents shall release the remaining amount of gratuity payable to the petitioner and the outstanding shall carry simple interest @ 7.5% after completion of one month from the date of retirement till the actual payment is made. Payment shall be made within three months from the day of judgment. [9] Mr. K. Bhattacharjee, learned counsel appearing for the respondents has submitted that the petitioners have not exhausted the alternative remedy. If they are entitled to the remainder of the gratuity, they had the remedy in Section 8 of the Payment of Gratuity Act, 1972 which is a complete code in itself. The aggrieved persons who have not been granted gratuity in terms of the Section 4 of the Payment of Gratuity Act, 1972, they should approach the authority as declared by the said provision. [10] According to Mr. Bhattacharjee, learned counsel in view of the existence of the alternative remedy, this court may not entertain the writ petitions for issuing mandamus against the respondents. That apart, in Para 10 of the reply, a serious objection has been raised. According to the respondents, calculation as made by the petitioners is not proper. Further, it has been stated by Mr. Bhattacharjee, learned counsel appearing for the respondents that the judgment of Lal Zakim Rokhum vs. Tripura Road Transport Corporation and Another has been challenged by the respondents by an the intra-court appeal, being WA 207 of 2020 which is pending in this court. As such, Mr. Further, it has been stated by Mr. Bhattacharjee, learned counsel appearing for the respondents that the judgment of Lal Zakim Rokhum vs. Tripura Road Transport Corporation and Another has been challenged by the respondents by an the intra-court appeal, being WA 207 of 2020 which is pending in this court. As such, Mr. Bhattacharjee, learned counsel appearing for the respondents has submitted that no reliance can be made on the ratio of the said judgment. He has urged for the dismissal of the writ petitions. [11] Having appreciated the submission made by the learned counsel appearing for the parties and scrutinized the records as available in the proceeding, this court is of the view that the petitioners are entitled to get the gratuity in terms of the notification dated 29.03.2018 op.cit, Meaning for purpose of determining the gratuity, maximum limit should be twenty lakhs. This is a statutory prescription. There is no dispute about the dates of superannuation or the consequential retirement or in respect of the post they held. Even though the respondents, as it appears, have challenged the calculations but they have not provided any alternative calculation which according to them would have been proper calculation. The question in respect of maintainability of the writ petitions for existence of the alternative remedy in view of Section 8 of the Payment of Gratuity Act, cannot be acceded to by this court as this court cannot be diverted of the jurisdiction for reason of availability of alternative remedy. If the act of the respondents is so arbitrary, illegal or unconstitutional, the court can exercise its authority as provided under Article 226 of the Constitution of India. The action as challenged in these writ petitions is grossly in defiance of the statutory provision. Hence that plea stands rejected. The respondents, as the corollary of the above observation, are directed to pay the petitioners remainder of the gratuity with interest @ 7.5% from the day of expiry of thirty days after their retirement till the payment is made. So far the prayer for the interest on the amount that has been already paid is concerned, this court is not inclined to grant any interest as the petitioners did not raise any objection at the time of accepting that amount. So far the prayer for the interest on the amount that has been already paid is concerned, this court is not inclined to grant any interest as the petitioners did not raise any objection at the time of accepting that amount. For acceptance of such amount, it has to be deemed they did not have any grievance at the time of their acceptance of the amount to the extent of Rs.10,00,000/- as cited above. So far the determination of the remainder of the actual gratuity is concerned, Section 4(1) of the Payment of Grauity Act, 1972 is an unquestionable reckoner. As such the respondents shall calculate due gratuity of the petitioners in terms of Section 4(1) of the Payment of Gratuity Act, 1972. Such calculation shall be made within the period of one month from today and the amount as would be reckoned shall be paid within a period of three months from today. In terms of the above, the writ petitions stand allowed. There shall be no order as to costs.' 6. Since the factual aspects of the present writ petitions are similar and identical to the subject matter of the case of Ashok Debbarma (supra), these writ petitions are also, therefore, allowed and disposed of in the same terms. 7. The respondents are directed to examine and determine the claim of the petitioners keeping in mind the principles laid down in Ashok Debbarma (Supra) and the fact that they retired from service on different dates after the Amendment Act of 2018, which came into force with effect from 29.03.2018 enhancing the upper ceiling limit of gratuity to Rs.20,00,000/- from Rs.10,00,000/-. The respondents are further directed to make fresh computation and shall pay the remainder gratuity amount along with interest @ 6% per annum after the expiry of the statutory period of one month within a period of 6(six) months from the date of receipt of copy of this judgment and order.