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2022 DIGILAW 359 (TRI)

Pradip Kumar Chowdhury v. State of Tripura

2022-09-06

ARINDAM LODH

body2022
JUDGMENT 1. This batch of writ petitions is taken up for disposal by a common judgment since common questions of law and facts are involved in all these writ petitions. 2. By means of filing the present writ petitions, the petitioners have prayed for the following reliefs in WP(C) no. 106 of 2022 which has been taken up as the lead case: '(i) Issue rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondents to cause full and final payment of gratuity to the petitioner on the basis of Ceiling Limit of Rs. 10,00,000/- by taking into account 41 years of service as rendered by the Petitioner and the last basic pay of Rs. 26,260/- and his Dearness Allowance of Rs. 19,430 after adjusting the payment already made to the Petitioner; (ii) Issue rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby directing the Respondents to cause payment of interest @75% per annum on the balance amount of gratuity w.e.f. the date on which gratuity became payable i.e. 30 days after retirement from service till the date payment is made; (iii) Issue rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or order/orders and/or direction/directions of like nature shall not be issued whereby declaring that the Notification dated 05.05.2009 issued by the Finance Department, Govt. of Tripura and the Tripura State Civil Services (Revised pension) Rules, 2009 is not applicable to the petitioner and in the matter of determining the amount of gratuity payable to the petitioner, the Payment of Gratuity Act, 1972 will prevail; (iv) Make the Rules absolute; (v) Call for the records pertaining to the instant writ petition; (vi) Pass any further Order(s) as this Hon'ble High Court considers fit and proper'. 3. I have heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. K. Nath, learned counsel for the petitioners. Also heard Mr. M. Debbarma, learned Additional GA, Mr. D. Sarma, learned Additional GA, appearing for the respondents-State and Mr. B. Majumder, learned Assistant SG appearing for the respondents-Union of India. 4. 3. I have heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. K. Nath, learned counsel for the petitioners. Also heard Mr. M. Debbarma, learned Additional GA, Mr. D. Sarma, learned Additional GA, appearing for the respondents-State and Mr. B. Majumder, learned Assistant SG appearing for the respondents-Union of India. 4. The simple question centres round the present dispute is whether the State government employees are entitled to get the benefit of the ceiling limit as prescribed under the Payment of Gratuity Act, 1972 in respect of payment of gratuity on their retirement. 5. All the petitioners of the present batch of writ petitions are retired government employees. All of them retired from service when Tripura Civil Services (Revised pension) Rules, 2009 (for short, Pension Rules, 2009) was prevalent. During the tenure of their service the petitioners held different posts in different capacities under the government of Tripura. 6. Mr. Roy Barman, learned senior counsel has submitted that a learned Single Judge of this Court in case no. WP(C) 204 of 2020 has directed the State government to revisit Rule 9 of the ROP Rules, 2017, and further, the State government should bring parity in determining the gratuity at par with the ceiling limit, as prescribed under the Payment of Gratuity Act, 1972. 7. I have considered the submission of learned senior counsel as well as the direction of the learned Single Judge in the above mentioned writ petition. 8. Keeping in view the submission of learned senior counsel appearing for the petitioners, it would be useful to peruse Section 2 (e) of the Payment of Gratuity Act, 1972 [here-in-after referred to as 'Act of 1972'] is relevant to the context of the present case which defines the term 'Employees'. It reads as under: '(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.' 9. From a bare perusal of the above definition, it is crystal like clear that the law-makers with a definite object to achieve intentionally excluded the employees of the state government as well as the central government from the purview of the applicability of the payment of Gratuity Act, 1972, in case their payment of gratuity is regulated or governed by any other separate Act or Rules. 10. In my considered view, because of the exclusion of the state and central government employees from the applicability of Payment of Gratuity Act, 1972, the employees of such government form a separate class and they cannot be equated with the employees of factory, mine, oil field, plantation, port, railway company, shop or other establishment in the matter of payment of gratuity. 11. Mr. Roy Barman, learned senior counsel has not disputed the fact that all the petitioners being the retired employees of the State government were paid gratuity as per Pension Rules, 2009, by which they were governed. 12. Admittedly, the petitioners of this batch of writ petitions are the retired employees of the State government and their service conditions were regulated and governed by the Pension Rules, 2009. During their service tenure, indubitably, they had been governed by the Tripura State Civil Services (Revised Pension) Rules, 2009 (for short, 'Pension Rules, 2009') which makes specific provision to regulate payment of gratuity to the employees of the state government. Rule 9 of Pension Rules, 2009 prescribes Rs. 4.00 lakhs for employees proceeded for superannuation/ retirement w.e.f. 01.01.2009. Here, it would be worthy to reproduce the relevant provision in extenso, for convenience: '8. DEATH-CUM-RETIREMENT GRATUITY (DCRG):- The existing ceiling limit of Death-cum-Retirement Gratuity is enhanced from Rs. 2.00 lakhs to Rs. 4.00 lakhs for employees proceeded on superannuation/ retirement w.e.f. 01.01.2009. The other conditions of the existing formula of computation of DCRG amount will remain unchanged. Here, it would be worthy to reproduce the relevant provision in extenso, for convenience: '8. DEATH-CUM-RETIREMENT GRATUITY (DCRG):- The existing ceiling limit of Death-cum-Retirement Gratuity is enhanced from Rs. 2.00 lakhs to Rs. 4.00 lakhs for employees proceeded on superannuation/ retirement w.e.f. 01.01.2009. The other conditions of the existing formula of computation of DCRG amount will remain unchanged. In case of death in harness, the following table shall continue to be followed: Length of Service Rate of Gratuity (a) Less than one year 2 times emoluments (b) 1 year or more but less than 5 years 6 times emoluments (c) 5 years or more but less than 20 years 12 times of emoluments (d) 20 years or more 1/2 (half) of emoluments for every completed 6 monthly period of qualifying service subject to a maximum of 30 times of emoluments The term 'revised emoluments' for the purpose of calculation of DCRG shall mean the last pay i.e. the pay in the pay band plus the grade pay of the employees concerned on the date of retirement/death.' 13. In the light of above, there cannot be any difference of opinion that the petitioners being the employees of the state government would be entitled to get the benefit of gratuity as per the Pension Rules, 2009 since all the employees of these batch of writ petitions had retired from service during the existence of the said Rule. 14. In view of this, I do not find any infirmity in the matter of payment of gratuity to the petitioners considering the ceiling limit of Rs. 4 lakh in accordance with Rule 8 of the Pension Rules, 2009. As a sequel, the State respondents have not committed any error in making the payment of gratuity to the petitioners considering the ceiling limit of Rs. 4 lakh. 15. Now, coming to the next question of the judgment passed by a learned single Judge of this court in WP(C) no. 204 of 2020 as argued by the learned senior counsel that the State respondents were directed to consider the matter of bringing parity with the Central Act in respect of determining the ceiling limit of gratuity. In this case the claim was made under rule 9 of Tripura Civil Services (Revised Pension) Rules, 2017, which governs the payment of gratuity to government employees. The relevant portion of the judgment may be extracted here-in-below for convenience: '9. In this case the claim was made under rule 9 of Tripura Civil Services (Revised Pension) Rules, 2017, which governs the payment of gratuity to government employees. The relevant portion of the judgment may be extracted here-in-below for convenience: '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 coterminus 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. 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 ....'. 16. It is clear from the above observation that the co-ordinate Bench of this court had not passed any specific direction upon the State-respondents to amend Rule 9 of the Tripura State Civil Services (Revised Pension) Rules. According to this court, on minute reading of the definition of the term 'employee' it manifestly comes to fore that to make separate rule in respect of payment of gratuity, the state legislature has complete legislative competence, which is imbibed in the scheme of the central act itself. [underlined for emphasis] 17. For better understanding the scheme of the central act, it would be worthy to peruse the statement of objects and reasons which contains the reasons constituting the foundation of legislation to step in. It emanates that before the enactment of legislations in the year 1971 by governments of Kerala and West Bengal for payment of gratuity to workers employed in factory, plantation, shop and establishment, there was no other central act which provided for payment of gratuity to industrial workers. Taking into account the intention of the state government it was felt necessary to have a central law on the subject so as to ensure the uniform pattern of payment of gratuity to the employees throughout the country. In the preamble of the Act of 1972 it is clearly stated that it is an Act to provide for a scheme for the payment of gratuity to the employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for the matters connected therewith and incidental thereto. 18. Section 1(3) clearly stipulates the organizations to which the act shall apply. 18. Section 1(3) clearly stipulates the organizations to which the act shall apply. Section 1(3) reads as under: '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.' Section 2(a) defines 'appropriate Government', which means: '(i) in relation to an establishment- (a) belonging to, or under the control of, the Central Government, (b) having branches in more than one State, (c) of a factory belonging to, or under the control of, the Central Government, (d) of a major port, mine, oilfield or railway company, the Central Government, (ii) in any other case, the State Government.' Section 2 (d) defines 'controlling authority', which means continuous service as defined in section 2A. Section 2 (f) defines 'employer', which reads as under: '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 person, 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, or managing director or by any other name, such person.' Section 2 (g) defines 'factory', which has the meaning assigned to it in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948). Section 2 (i) defines 'major port', which has the meaning assigned to it in clause (8) of section 3 of the Indian Ports Act, 1908 (15 of 1908). Section 2 (j) defines 'mine', which has the meaning assigned to it in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952). Section 2 (k) defines 'notification', which means a notification published in the Official Gazettee and the expression 'notified' shall be construed accordingly. Section 2 (l) defines 'oilfield', which has the meaning assigned to it in clause (e) of section 3 of the Oilfields (Regulation and Development) Act, 1948 (53 of 1948). Section 2 (m) defines 'plantation', which has the meaning assigned to it in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951). Section 2 (n) defines 'port', which has the meaning assigned to it in clause (4) of section 3 of the Indian Ports Act, 1908 (15 of 1908). Section 2 (p) defines 'railway company', which has the meaning assigned to it in clause (5) of section 3 of the Indian Railways Act, 1890 (9 of 1890). 19. On careful consideration of the above expressions, the intention of the legislature is manifestly crystallized. The law-makers clearly intended to apply and extend the benefit of uniform quantum of gratuity to the employees of the aforesaid specified organizations as well as the employees of the establishments belonged to or under the control of the central government or the state government, but, excluded the persons holding posts under the central government or the state government and are governed by any other act or by any rules providing for payment of gratuity have not been brought within the ambit of the scheme of the Payment of Gratuity Act, 1972. [Emphasis supplied] 20. Moreso, the parameters considered for determining the maximum limit of gratuity for its employees is a policy matter of the government which dwelled upon many complex issues and the court in exercise of its power of judicial review under Article 226 of the Constitution of India should refrain from interfering with such policy decision of the government. Needless to say, it is always left open to the state government to revisit its policy. Needless to say, it is always left open to the state government to revisit its policy. As a logical corollary, as on today, there cannot be any quarrel that Rule 8 of the Pension Rules, 2009 would govern the petitioners of this batch of writ petitions being the employees of the state government in respect of payment of gratuity. 21. In view of the above discussions and for the reasons stated, this batch of writ petitions merit no consideration and accordingly dismissed. However, in the facts and circumstances, the parties are to bear their own costs. Pending application(s), if any, also stands disposed.