Research › Search › Judgment

Meghalaya High Court · body

2022 DIGILAW 66 (MEG)

K. P. Mohanta v. State of Meghalaya

2022-03-30

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - This is a hopeless appeal where the writ petitioner's contentions have no legs to stand on. The appeal is directed against a judgment and order of December 5, 2019, dismissing the appellant's petition under Article 226 of the Constitution complaining of the refusal by the State or the fourth respondent college to pay the gratuity due to the appellant. 2. The facts are succinctly recorded in the impugned judgment. The appellant joined the fourth respondent college as a lecturer in Philosophy in July, 1984 and he was confirmed in such post in September, 1986. The appellant continued with the college till the middle of 2009, and in due course, gained seniority and the senior or selection grade of pay made applicable to the college. On May 4, 2009, the appellant informed the college that he intended to join the Central University of Jharkhand as the Deputy Registrar and requested the college to allow him to retain his job there on lien. 3. The college granted the appellant the leave as sought and on July 8, 2009, requested the Director of Higher and Technical Education, Government of Meghalaya to grant lien to the writ petitioner for a period of one year. Such lien was granted for a year by an order dated July 30, 2009 with effect from May 10, 2009. 4. The appellant was appointed as the Deputy Registrar in the Central University of Jharkhand on March 17, 2010 and, by a letter of March 24, 2010, he requested the respondent college to extend his lien for a further period of two years. The college replied by indicating certain conditions that would be imposed; and a further period of two years of lien was granted with effect from May 10, 2010 upon due sanction thereof by the State. 5. By his letter dated April 10, 2012 addressed to the respondent college, the appellant requested the termination of his lien with effect from May 10, 2012 and also prayed for the release of his gratuity along with other benefits. The appellant submitted an application to the respondent college on September 10, 2012 to the effect that his letter of April 10, 2012 be treated as 'technical resignation'. 6. The appellant submitted an application to the respondent college on September 10, 2012 to the effect that his letter of April 10, 2012 be treated as 'technical resignation'. 6. The college duly forwarded the application to the Director of Higher and Technical Education and also processed the appellant's application for payment of gratuity and forwarded the same to the State. By a letter dated February 28, 2014, the State informed the relevant college that in terms of the Meghalaya Aided College Employees Death-cum-Retirement Gratuity Scheme, 1985, an employee who resigns from service on his own volition is not entitled to any benefit under the Scheme. This was communicated by the college to the appellant by its letter of February 28, 2014. This decision to deny the gratuity that the appellant perceived to be his right was challenged by way of the petition under Article 226 of the Constitution. 7. By the impugned judgment and order, the writ court held that since the appellant was covered by the Scheme, notwithstanding the appellant herein perceiving his resignation to be 'technical', it was a resignation on the volition of the appellant nonetheless, and was squarely covered by clause 7(d) of the said Scheme of 1985. 8. In addition to the case made out before the writ court, the appellant here submits that in view of Section 14 of the Payment of Gratuity Act, 1972, the denial of the gratuity that was due to the writ petitioner upon the writ petitioner rendering service for the qualifying period was illegal and a writ in the nature of mandamus should issue. 9. The writ petitioner is employed in a private college though such college is partly funded by the Government to the extent of the payment of salaries and benefits to its employees and the like, particularly to teachers. It is not incumbent, under any law or notification under any statute, for a private college to compulsorily pay gratuity to its employees. There is no notification in such regard that the appellant relies on. 10. Indeed, implicit in the appellant's reliance on the said Scheme of 1985, is the tacit admission that the appellant would otherwise not be entitled to any gratuity. The Scheme of 1985 provides for the payment of gratuity but such payment is subject to certain conditions. There is no notification in such regard that the appellant relies on. 10. Indeed, implicit in the appellant's reliance on the said Scheme of 1985, is the tacit admission that the appellant would otherwise not be entitled to any gratuity. The Scheme of 1985 provides for the payment of gratuity but such payment is subject to certain conditions. One of the conditions imposed by the Scheme is that for an employee to be entitled to gratuity at the end of his service period, he must not have resigned from service on his own volition. The exact words of clause 7(d) of the Scheme of 1985 are as follows: '7. No Gratuity shall be admissible to an employee who - ... (a) ... (b) ... (c) ... (d) resigns his service of his own volition' 11. The expression, 'of his own volition', has to be seen to imply 'on his own' or 'by a voluntary and unprovoked act'. In other words, the act of the employee resigning must be taken by the employee himself and not be as a result of something other than the free choice of the concerned employee. The relevant sub-clause has to be read in the context of the preceding sub-clauses that pertain to the disqualification from the benefit under the Scheme for a temporary employee or an employee who has been dismissed from service or who is removed or called upon to resign on account of misconduct or inefficiency. Thus, the nature of the disability that would be attracted varies from the employee not being a permanent employee to the employee's severance from service. As the immediate preceding sub-clause shows, one form of severance from service could be by resignation and such resignation may be upon the employee being called upon so to do on account of misconduct or inefficiency or a resignation by the employee of his own accord. 12. Though the payment of gratuity is a statutory right in certain cases in this country, but the principle behind it cannot be lost sight of; an employer makes a gratuitous lumpsum payment to an employee at the end of the service period of the concerned employee, subject to the employee fulfilling certain conditions. 13. 12. Though the payment of gratuity is a statutory right in certain cases in this country, but the principle behind it cannot be lost sight of; an employer makes a gratuitous lumpsum payment to an employee at the end of the service period of the concerned employee, subject to the employee fulfilling certain conditions. 13. As for the Act of 1972, those persons who are directly covered by such enactment and can trace their right to receive gratuity thereunder, the terms of the Act would govern them and, by virtue of the overriding provision contained in Section 14 of the Act, the right of an employee under such Act cannot be inhibited or impeded by any enactment or by any instruction brought about by an enactment. 14. The distinction in the present case is in the appellant herein not being able to trace his right to receive gratuity directly under the Act of 1972. Indeed, the rate at which a college-teacher employed in a Government-aided college in the State would obtain gratuity is indicated in the said Scheme of 1985. Such prescribed rate is at complete variance with the rate recognised in the Act of 1972. Again, the maximum quantum of gratuity that would be payable to a teacher engaged in a Government-aided college in the State is quite different from the quantum of gratuity that an employee tracing his right directly to the Act of 1972 would be entitled to receive. Under the Scheme of 1985, an employee covered thereby would be entitled to receive a maximum of 161/4 times one-fourth of his emoluments for each completed six months of service, or Rs.36,000/-, whichever is less. 15. The gratuity that is given today to Central government employees as per the rates published from time to time in such regard or to the other State government employees as per the rates published in respect thereof are several multiples of the maximum amount permissible under the Scheme of 1985. 16. If, as the appellant asserts, Section 14 would have an overriding effect on the provisions of the said Scheme of 1985, any employee covered by such Scheme would able to suggest that it is the higher limit as declared by the Central government or the State government, as the case may be, that would be applicable and not as stipulated under the Scheme of 1985. It is in such circumstances, that Section 14 of the Act would not affect the conditions imposed by the Scheme of 1985 simply because the appellant herein would not have been entitled to any gratuity unless the Scheme of 1985 had extended the same benefit to persons in the position of the appellant herein; and, when a special benefit conferred is hedged with conditions, the benefits and conditions have to be taken as a whole or not at all. 17. It is in such light that the judgment and order impugned dated December 5, 2019 does not call for any interference. Since there is no doubt that however 'technical' or 'forced' the appellant may perceive his resignation to have been, such resignation was of his own volition within the meaning of such expression in clause 7(d) of the Scheme of 1985 and, as such, by the express terms of the Scheme, the appellant is excluded from the benefit of gratuity thereunder. 18. WA No.2 of 2022 is dismissed as being devoid of merit. 19. There will, however, be no order as to costs.