Gauhati High Court
Abhinandan Dutta vs Assam Power Generation Corporation ... on 3 June, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
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GAHC010133592024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3534/2024
ABHINANDAN DUTTA
S/O- C.K. DUTTA,
R/O- NEW AMOLAPATTY,
P.O. AND P.S.- GOLAGHAT,
DIST.- GOLAGHAT, ASSAM- 785621.
VERSUS
ASSAM POWER GENERATION CORPORATION LIMITED AND 3 ORS
REPRESENTED BY ITS CHAIRMAN,
BIJULEE BHAWAN, PALTAN BAZAR,
GUWAHATI- 781001.
2:THE MANAGING DIRECTOR
ASSAM POWER GENERATION CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI -781001.
3:THE GENERAL MANAGER (HR)
ASSAM POWER GENERATION CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI- 781001.
4:THE CHIEF GENERAL MANAGER (HRA)
APDCL
BIJULEE BHAWAN
PALTAN BAZAR
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GUWAHATI- 781001
Advocate for the Petitioner : MR. S BISWAS, A GHOSAL,MS D DEVI,MS S BORUAH
Advocate for the Respondent : SC, APDCL, SC, APGCL
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.06.2025
Heard Mr. S. Biswas, learned counsel for the petitioner. Also heard Mr. H.R.
Das, learned counsel for the respondents.
2. This writ petition is filed by the petitioner, who at the relevant point in
time was employed under the Assam Power Generation Corporation Limited
(APGCL) as a Deputy Manager (Civil). He was appointed in his service in the
year 2015 and since then he has been continuing his service. Subsequently, in
response to an advertisement advertisement No.07/2022 issued by the NLC
India Ltd he applied for the said post through proper channel and an NOC to
that effect was issued by the APGCL. Subsequently, he was successfully selected
and appointed to the post of Executive Engineer (Civil). Thereafter, the
petitioner resigned from his parent company namely APGCL and also applied his
service benefits including gratuity from APGCL.
3. The petitioner has filed representations before the authorities concerned
however, his representations remained pending and accordingly the petitioner
has approached this Court praying for appropriate direction to the respondents.
4. The learned counsel for the petitioner submits that under the Payment of
Gratuity Act, 1972 the petitioner is entitled for payment of gratuity benefit and
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his rights under the statute cannot be denied. It is further submitted that the
respondents rejected the claim of the petitioner by wrong interpretation of the
office order dated 17.08.2021 and coming to a conclusion that death-cum-
retirement gratuity payable to the employees of the APGCL will not include the
case of the petitioner as the petitioner had resigned from the Company
pursuant to his subsequent appointment in NLC.
5. On the other hand the respondents have contested the claims of the
petitioner by filing the necessary affidavit. The objection of the respondents is
that vide order dated 17.08.2021 the benefit of death-cum-retirement gratuity
has been extended to the employees of Assam Power Generation Corporation
Limited (APGCL) covered by National Pension System (NPS) on the same terms
and conditions as are applicable to the employees covered under the Central
Civil Service (Pension) Rules 1972. According to the respondents, the Board has
considered and approved for the grant of DCRG benefits to the employees of
the APGCL as they come under NPS. Keeping in view the Office Memorandum
No.PPG(P)165/2014/36 dated 01.02.2021 the benefits of this DCRG is provided
to the employees of the Government of Assam who falls under NPS.
6. The claim of the petitioner that he covered under the provisions of section
4 of the Payment of Gratuity Act, 1972 is disputed, as it is submitted that the
provisions of the said Act is not applicable where the organization has its own
set of Rules granting benefits. It is submitted that since the APGCL Board has
already adopted the payment of DCRG in terms of it's resolution dated
29.07.2021, the claim of the petitioner for grant of gratuity shall be governed by
the policy adopted by the APGCL and not under the provisions of the Act.
7. The respondents have relied upon the two judgments of Madras High
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Court in support of their contentions. The gist of the objection raised by the
respondents is that since the petitioner has resigned from his services, the
DCRG benefits are not available to the petitioner as per the terms of the policy,
which provides for such benefits only in cases of death or retirement of the
employee. In the facts of the present case, the petitioner did not retire from the
APGCL but has resigned in order to take up new employment and therefore, he
is not entitled to the said policy under the corporation's policy.
8. In rejoinder, the learned counsel for the petitioner submits by referring to
Rule 36 of the Central Civil Services (Pension) Rules, 2021 that the resignation
submitted by the petitioner is a technical resignation and therefore, the date of
absorption in the new employment shall be deemed to be the date on which the
technical resignation was submitted. He submits that, under Rule 36 of the
Central Civil Services (Pension) Rules, from the date of his absorption in the new
employment, the petitioner is entitled to receive pension or service gratuity.
Therefore, the resignation submitted by the petitioner must be treated as a
technical resignation covered under Rule 36, and the respondents cannot reject
the petitioner's claim on that ground.
9. The learned counsel for the parties have been heard, and the pleadings
available on the case record, as well as the judgments relied upon, have been
perused. The provisions of the Payment of Gratuity Act have also been taken
into consideration.
10. At the outset, it is necessary to refer to the provisions of the Payment of
Gratuity Act, 1972. Under Section 2(e), the term "employee" is defined as
under:
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"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;
11. Under section 2(f), the term "employer" is also defined 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 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, managing director or
by any other name, such person;
12. The applicability of the benefits under the Act is prescribed in Section 4,
which is extracted below for ready reference:
(1) Gratuity shall be payable to an employee on the termination of his employment after
he has rendered continuous service for not less than five years, -
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(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
Provided that the completion of continuous service of five years shall not be necessary
where the termination of the employment of any employee is due to death or disablement:
[Provided further that in the case of death of the employee, gratuity payable to him shall
be paid to his nominee or, if no nomination has been made, to his heirs, and where any
such nominees or heirs is a minor, the share of such minor, shall be deposited with the
controlling authority who shall invest the same for the benefit of such minor in such bank
or other financial institution, as may be prescribed, until such minor attains majority.]
(2) 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 fifteen days wages based on the
rate of wages last drawn by the employee concerned:
Provided that in the case of a piece-rated employee, daily wages shall be computed on
the average of the total wages received by him for a period of three months immediately
preceding the termination of his employment, and, for this purpose, the wages paid for
any overtime work shall not be taken into account.:
Provided further that in the case of [an employee who is employed in a seasonal
establishment and who is riot so employed throughout the year], the employer shall pay
the gratuity at the rate of seven days wages for each season
(3) The amount of gratuity payable to an employee shall not exceed three lakhs and fifty
thousand] rupees.
(4) For the purpose of computing the gratuity payable to an employee who is employed,
after his disablement, on reduced wages, his wages for the period preceding his
disablement shall be taken to be the wages received by him during that period, and his
wages for the period subsequent to his disablement shall be taken to be the wages as so
reduced.
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(5) Nothing in this section shall affect the right of an employee to receive better terms of
gratuity under any award or agreement or contract with the employer.
(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been terminated for any act, wilful
omission or negligence causing any damage or loss to, or destruction of, property
belonging to the employer, shall be forfeited to the extent of the damage or loss so
caused.
(b) the gratuity payable to an employee [may be wholly or partially forfeited] -
(i) if the services of such employee have been terminated for his riotous or
disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which
constitutes an offence involving moral turpitude, provided that such offence is
committed by him in the course of his employment.
13. A reading of the above provisions of the Act clearly reveals that the
respondents fall within the definition of "employer" as prescribed under the Act,
and similarly, the petitioner qualifies as an "employee" whose services are
covered by the said definition. Insofar as the benefit under Section 4 is
concerned, it is available to any employee upon the termination of employment
after rendering continuous service for not less than five years on three
situations or circumstances namely (i) on his superannuation, (ii) on his
retirement or resignation, (iii) on death or disablement due to accident or
disease.
14. Therefore, perusal of section 4 above clearly reveals that resignation of
any employee will also entitle him order for payment of gratuity. The only
requirement is that there must be continuous service of not less than 5 years. In
the case of the petitioner he had rendered continuous service for a period of 7
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years 6 months, which is not disputed on facts by the respondents.
15. Under such circumstances, it must be held that under the provisions of the
Payment of Gratuity Act, 1972 the petitioner is entitled to be considered for
payment of gratuity, as he fulfils the parameters prescribed under Section 4 of
the Act. The only exception is that the provisions of this Act shall not be
applicable where a particular employer has its own set of rules which govern the
payment of gratuity. In the present case, the respondents have declined to
consider his claim for gratuity on the ground that the Board had adopted a
decision for grant of death-cum-retirement gratuity in its 91 st meeting held on
29.07.2021. Since this gratuity is payable either on death or retirement of an
employee covered under the National Pension System (NPS), the case of the
petitioner cannot be considered as he has submitted his resignation pursuant to
his appointments in a separate public sector undertaking.
16. Having noted the above factual and legal position, the question for the
Court to decide is whether the rights available to an employee under the
Payment of Gratuity Act can be deprived or curtailed by an employer to the
detriment of the employer. There is no dispute that the provisions of Payment of
Gratuity Act, 1972 do not cover either the petitioner or the respondent. If that
be so, then the mandate of the Central Act regarding the payment of gratuity
will apply to both the petitioner as well as the respondents. Section 4 clearly
mandates the payment of gratuity under three circumstances. The petitioner is
admittedly covered under parameters of Clause (b) of section 4. Even assuming
that the employer had adopted a policy for granting death-cum-retirement
gratuity only to the employees who either die in harness or retire/superannuate
from the services, the question still remains whether the benefit available to an
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employee under the Payment of Gratuity Act of 1972 can be curtailed by the
employer, namely the respondent company herein. The policy or the Rules
stated to be adopted by the company for grant of gratuity clearly excludes the
writ petitioner as it refuses to acknowledge that the benefits are also applicable
to the employees who have resigned.
17. The respondents submit that once a policy is adopted which policy is not
under challenge before this Court and also the policy is framed for payment of
gratuity to its employees in cases of death or retirement only, the provisions of
the Payment of Gratuity Act of 1972, will not be applicable and therefore, the
petitioner does not have any claim to grant of gratuity under this Act. Such
submissions, on the bare perusal of the provisions of the Act, clearly appear to
be fallicious. The specific requirement under Section 4 of the Act is for payment
of gratuity to the employees who are covered under section 2(e) and the
employers covered under section 2(f).
18. As discussed above the petitioner falls within the definition of Section 2(e)
as also the respondents fall under the definition of 2(f). Accordingly, this Court
is of the view that the benefit of gratuity conferred under the Payment of
Gratuity Act, 1972 cannot be curtailed by the respondents by refusing to
consider the claims of gratuity payable to the writ petitioner. The interpretation
sought to be projected before the Court by the petitioner that the resignation is
effectively a "technical resignation" submitted by the petitioner under 36 also
cannot be accepted as the petitioner was never sent on deputation to the new
corporation namely NCL. It is a fresh appointment which the petitioner applied
for, while he was in service of the respondent APGCL. Nevertheless, where the
statute clearly provides for payment of gratuity to an employee who may have
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resigned or retired after completion of five years of service, the authorities
cannot frame a rule which will exclude the claims of the writ petitioner for
gratuity benefits to its detriment. It is not disputed by the respondents that the
petitioner did not have to his credit the required length of service to make him
eligible towards his claim for gratuity under the Act of 1972.
19. Under such circumstances, this Court considers it appropriate to direct the
respondents to consider the claim of the petitioner for grant of gratuity under
the provisions of the Payment of Gratuity Act, 1972 w.e.f. the date it is
applicable and forthwith take all the steps necessary for release of the same.
Before the Court, it was submitted at the Bar that a representation filed by the
petitioner before the authority concerned is stated to be pending and this fact is
not disputed by the respondent. Accordingly, the respondents shall pass
necessary orders for grant of gratuity to the petitioner under the provisions of
the Payment of Gratuity Act, 1972 and release all service benefits including the
gratuity as found payable to the petitioner. The entire exercise will be carried
out within a period of 30 days from the date of receipt of certified copy of this
order.
20. In view of the conclusion arrived at by the Court, the judgments pressed
into service by the respondents do not support the case of the respondents and
therefore does not require any discussion at this stage.
21. This writ petition is accordingly allowed and disposed of.
JUDGE
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Comparing Assistant
