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2022 DIGILAW 398 (TRI)

Debasish Sengupta v. State of Tripura

2022-11-10

ARINDAM LODH

body2022
JUDGMENT 1. Heard Mr. S. Datta, learned counsel appearing for the petitioner. Also heard Mrs. S. Deb, learned counsel appearing for the State-respondents and Mr. P. Gautam, learned counsel appearing for the respondent nos. 2 to 5. 2. By way of filing the present writ petition, the petitioner has prayed for the following reliefs:- 'In the premises whereof it is humbly prayed that Your Lordship would graciously pleased to- (i) Admit the petitioner; (ii) Call for the records; (iii) Issue Rule calling upon the Respondents to show cause as to why the petitioner shall not be allowed/released the arrears of Gratuity amount as entitled to under the Payment of Gratuity Act,1972 in terms of maximum ceiling to Rs.20.00 lakhs as came into force w.e.f. 29.03.2018 along with compound rate of interest @ 9% per annum in favour of the petitioner. ' 3. Briefly stated, the petitioner was appointed in the post of Field Supervisor on 02.09.1991 by the Tripura Scheduled Tribe/Scheduled Caste (ST/SC) Co-operative Development Corporation Ltd., the respondent nos. 2 to 5 respectively. After attaining the age of superannuation, the petitioner retired from service w.e.f. 31.01.2021. It is the contention of the petitioner that after the retirement as per ceiling limit of Rs.20,00,000/- under the Payment of GratuityAct,1972 amended on 29.03.2018, the petitioner is entitled to Rs.11,49,404/- as full and final payment of gratuity. But, the respondent nos. 2 to 5 vide Memo dated 30.01.2021 [Annexure-1 to the writ petition] sanctioned and released the gratuity amount on computation of pre-revised ceiling limit i.e. subject to maximum Rs.10,00,000/-. The petitioner has prayed for payment of balance amount which he is entitled to, along with 9% interest, till the date of actual payment. It is further contended that the Govt. of India by Notification, dated, 29.03.2018 notified that the amount of gratuity payable to an employee under the Act shall not exceed Rs.20,00,000/-. Accordingly, the petitioner has urged that he is also entitled to gratuity at the enhanced rate i.e. Rs.20,00,000/- as per Payment of Gratuity (Amendment Act), 2018. 4. At the very outset, Mr. S. Datta, learned counsel appearing for the petitioner has submitted that this writ petition is well covered by the judgment of learned Single Judge of this court dated 13.02.2020 in the case of Sri Bhupati Debnath v. The State of Tripura & two others. in WP(C) No.1054 of 2019. Respondents did not seriously oppose this proposition. S. Datta, learned counsel appearing for the petitioner has submitted that this writ petition is well covered by the judgment of learned Single Judge of this court dated 13.02.2020 in the case of Sri Bhupati Debnath v. The State of Tripura & two others. in WP(C) No.1054 of 2019. Respondents did not seriously oppose this proposition. The relevant portion of the said judgment of the learned Single Judge may be reproduced here-in-below: '5. The statement of objects and reasons for enactment of the Payment of Gratuity Act, 1972 (the Act, for short) reads as under: 'STATEMENT OF OBJECTS AND REASONS: There is at present no Central Act to regulate the payment of gratuity to industrial workers, except the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act. 1995. The Government of Kerala enacted legislation last year for payment of gratuity to workers employed in factories, plantations, shops and establishments. The West Bengal Governor Promulgated an Ordinance on the 3rd June, 1971 prescribing a similar scheme of gratuity. This Ordinance has since been replaced by the West Bengal Employees' Payment of Compulsory Gratuity Act, 1971, enacted by the President on 28th August, 1971. Gratuity is also being paid by some employers to their workers under Awards and Agreements. Since the enactment of the Kerala and the West Bengal Acts, some other State Governments have also voiced their intention of enacting similar measures in their respective States. It has become necessary, therefore, to have a Central law on the subject so as to ensure a uniform pattern of payment of gratuity to the employees throughout the country. The enactment of a Central law would also avoid different treatment to the employees of establishments having branches in more than one State when, under the conditions of their service, the employees are liable to transfer from one State to another. The proposal for Central legislation on gratuity was discussed in the Labour Ministers' Conference held at New Delhi on 24th and 25th August, 1971 and also in the Indian Labour Conference at its session held on the 22nd and 23rd October, 1971. There was general agreement at the Labour Ministers' Conference and the Indian Labour Conference that Central legislation on payment of gratuity might be undertaken as early as possible. It is accordingly proposed to undertake such legislation. There was general agreement at the Labour Ministers' Conference and the Indian Labour Conference that Central legislation on payment of gratuity might be undertaken as early as possible. It is accordingly proposed to undertake such legislation. In enacting the President's Act for West Bengal in August, 1971, care has been taken to so design its provisions that they could serve as far as possible as norms for the Central law. The Bill has, therefore, been drafted on the lines of the West Bengal Employees' Payment of Compulsory Gratuity Act, 1971 with some modifications which have been made in the light of the views expressed at the Indian Labour Conference relating to forfeiture of gratuity in cases of dismissal for gross misconduct. The Bill provides for gratuity to employees drawing wages up to Rs. 270 per month in factories, plantations, shops, establishments and mines, in the event of superannuation, retirement, resignation and death or total disablement due to accident or disease. The quantum of gratuity payable will be 15 days' wages based on the rate of wages last drawn by the employees concerned for every completed year of service or part thereof in excess of six months subject to a maximum of 15 months' wages. The term "wages" will mean 'basic wage plus dearness allowance'. It is proposed that the appropriate Government for administering the Act in relation to establishment belonging to or under the control of the Central Government or a railway company, or mine, a major port and oilfield or in relation to establishments having departments or branches in more than one State, will be the Central Government, and, in relation to other establishments, the State Government. The Bill seeks to give effect to the above proposals.' With these objects in mind to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto the said Act was enacted. 6. Clause (a) of Section 2 of the Act defines the term 'appropriate Government' as under: '2. 6. Clause (a) of Section 2 of the Act defines the term 'appropriate Government' as under: '2. (a) 'appropriate Government' 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.' 7. This distinction between the State or the Central Government being an appropriate Government in relation to different classes of establishments, manifests itself in various sections contained in the said Act. For example, under Section 3 the appropriate Government may, by notification, appoint an officer to be a Controlling Authority who shall be responsible for the administration of the Act. Different Authorities may be appointed for different areas. Under Section 4A the appropriate Government may notify date with effect from which every employer other than an establishment belonging to or under the control of the Central or the State Government would have to obtain an insurance for liability for payment of gratuity. Under sub-section (1) of Section 5 the appropriate Government may by notification exempt any establishment, factory, mine or oilfield etc. from the operation of the provisions of the Act. Under sub-section (2) of Section 5 similarly the appropriate Government may notify exemption of any employee or class of employees from the operation of the provisions of the said Act. 8. However, when it comes to Section 4 of the said Act which pertains to payment of gratuity, this distinction of the appropriate Government being Central or the State Government, has no effect. Sub-section (1) of Section 4 provides that the gratuity shall be payable to an employee on termination of his employment after he has rendered continuous service for not less than five years, on his superannuation or retirement or resignation or death or disablement due to accident or disease. Sub-section (2) of Section 4 provides that for every completed year of service or part thereof in excess of six months the employer shall pay gratuity to an employee at the rate of 15 (fifteen) days wages based on the rate of wages last drawn by the concerned employee. Sub-section (2) of Section 4 provides that for every completed year of service or part thereof in excess of six months the employer shall pay gratuity to an employee at the rate of 15 (fifteen) days wages based on the rate of wages last drawn by the concerned employee. Sub-section (3) of Section 4 which is of importance reads as under: '(3) 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.' 9. As per this provision thus the amount of gratuity payable to an employee would not exceed such amount as may be notified by the Central Government from time to time. The group of words 'such amount as may be notified by the Central Government from time to time' was substituted by Act 12 of 2018 for the group of words 'ten lakh rupees'. This limit of ten lakhs of rupees was self in substitution of earlier limits of lesser amounts. 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. 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. Mr. Datta, learned counsel relying on the above decision has prayed for directing the respondents to make the full and final payment of the balance amount of gratuity as per revised ceiling limit of Rs.20,00,000/- along with interest considering the date of retirement of the petitioner. 6. Since the factual aspects of the present writ petition is similar and identical to the subject matter of the case of Sri Bhupati Debnath (supra), this writ petition is also, therefore, allowed and disposed of in the same terms. 7. Accordingly, the respondent nos. 2 to 5 are directed to make necessary payment of gratuity to the petitioner after computation of actual payment of gratuity taking into account the ceiling limit of Rs.20,00,000/- (Rupees twenty lakhs) along with interest @ 6% per annum on delayed payment within a period of three months from today.