Smt. Bithi Chakraborty vs The State Of Tripura
2021 Latest Caselaw 1128 Tri

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                   HIGH COURT OF TRIPURA
                          AGARTALA
                          WP(C) No. 616 of 2020
Smt. Bithi Chakraborty,
wife of Sri Tarun Chakraborty, resident of Dhaleswar, Kalyani,
P.S. East Agartala, District- West Tripura, PIN 799004
                                                             .....Petitioners
                -VERSUS-
1.    The State of Tripura,
represented by the Secretary, Department of Cooperation, New Secretariat
Building, New Capital Complex, Kunjaban, P.S. New Capital Complex,
Agartala, West Tripura, PIN-799006
2.    The Registrar of Cooperatives,
Palace Compound, Agartala, West Tripura, PIN-799001
3.    Gomati Cooperative Milk Producers' Union Limited,
represented by the Managing Director, Gomati Cooperative Milk
Producers‟ Union Limited, Agartala Diary, Indranagar, Agartala-799006,
West Tripura
4.    The Managing Director,
Gomati Cooperative Milk Producers‟ Union Limited, Agartala Diary,
Indranagar, Agartala-799006, West Tripura
                                                          ....Respondents

For Petitioner (s ) : Mr. P. Roy Barman, Sr. Advocate Mr. S. Bhattacharjee, Advocate For Respondent (s) : Mr. D. Sarma, Addl. GA Ms. Sarama Deb, Advocate Date of hearing & delivery : 18.11.2021 of judgment & order Whether fit for reporting : Yes / No

HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER (ORAL)

1. Heard Mr. P. Roy Barman, learned senior counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. D. Sarma, learned Additional GA appearing for the State-respondents and Ms. Sarama Deb, learned Counsel appearing for the respondents No. 3 and Page 2

4 i.e. Gomati Cooperative Milk Producers‟ Union Limited (for short referred to as the Union).

2. By way of filing the present writ petition, the petitioner has prayed for the following reliefs:

"Under the circumstances, stated above, it is submitted, that the Hon'ble High Court would be kind enough to:-

(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 release the remaining amount of gratuity to the petitioner after considering 50% of the service rendered by the petitioner from 04.01.1991 to 30.07.2007 with interest @ 9% p.a., w.e.f. 01.02.2020 till payment is made.

(ii) Make the rules absolute.

(iii) Call for records.

(iv) Pass any further order/orders as this Hon'ble High Court considered fit and proper".

3. Briefly stated, the petitioner had joined in the post of Lady Instructor on 04.01.1991 under the respondent Nos. 3 and 4 i.e. Union. After attaining the age of superannuation, the petitioner retired from service on 31.12.2019. After retirement, in the month of February, 2021, the petitioner was paid Rs. 2,77,788/- towards payment of her gratuity. The service of the petitioner was treated to be regularized w.e.f. 11.10.2007 and for that reason, while granting the said gratuity amount was calculated w.e.f. 11.10.2007 till 31.12.2019 i.e. date of retirement. It is the grievance of the petitioner that the past service, which she rendered under the respondent nos. 3 and 4 before her regularization was not counted for the purpose of calculating the amount of gratuity. Relying on the circulars issued by the Finance Department, Government of Tripura, dated 16th August, 1978 and 26th September, 1979, the petitioner has claimed for counting half of the period of her service she rendered before her regularization for the purpose of calculating the amount of gratuity.

4. On the aforesaid background, Mr. Roy Barman, learned senior counsel appearing for the petitioner has submitted that by dint of those Page 3

circulars issued by the Finance Department, Government of Tripura dated 16th August, 1978 and 26th September, 1979, the petitioner is eligible for counting half of the period of service rendered as casual employee for the purpose of calculating the amount of gratuity. Mr. Roy Barman, learned senior counsel placing reliance in the case of Punjab State Electricity Board and another vs. Narata Singh and another, reported in (2010) 4 SCC 317 and Prem Singh vs. State of Uttar Pradesh and others, reported in (2019) 10 SCC 516, has urged that irrespective of any circulars or memorandums or any policy by any organization, the employees of such organization would be entitled for gratuity for the period he/she served in any capacity under such organization before his/her such regularization under the said organization. Mr. Roy Barman, learned senior counsel has invited my attention to para 33 of Prem Singh (supra), wherein the Hon‟ble Apex Court has observed thus:

" 33. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization has been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in the Note to Rule 3(8) of the 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularization. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification."

5. On the other hand, Mr. D. Sarma, learned Additional GA appearing for the State-respondents has submitted that the memorandums Page 4

dated 16/18th August, 1978 and 26th September, 1979 (Annexure 8 and 9 to the writ petition) are applicable only for the State-government employees.

6. Mrs. Sarama Deb, learned counsel appearing for the respondent- Union, has submitted that the Union is a Co-operative Society constituted under the Tripura Co-operative Societies Act, 1974, and managed and run by democratically elected Board. As submitted and pleaded by Mrs. Deb, learned counsel, it has come to light that for welfare of the employees, the Gomati Milk Producers‟ Union Limited entered into an agreement with Life Insurance Corporation of India (for short, LICI) on 01.01.2002 for Group Gratuity Scheme and accordingly, once in a year, yearly premium of gratuity for covered employees was/is being deposited from own resources. The petitioner was also joined and then covered under this „Group Gratuity Scheme‟ from the date of regularization of her services i.e. on and from 01.08.2007. The petitioner was regularized from fixed pay on 01.08.2007 and she was given gratuity from 01.08.2007 in terms of the agreement arrived at between the Union and the LICI.

It is further noticed that the Union, being a Co-operative Society is governed by its own bye-laws. There is no scrap of paper that the Union has ever adopted those memorandums issued by the Finance Department, Government of Tripura.

According to Mrs. Deb, learned counsel appearing for the Union, if the court grants any such benefit, as prayed by the petitioner in this writ petition, then, it will open a pandorous box and the Union will not be in a position to bear huge financial burden, since, it is a non-profiteering organization. Mrs. Deb, learned counsel has further contended that the Union had never received any grant or aid either from State-government or from Central government or from National Dairy Development Board. Learned counsel has further submitted that since the Union is governed by its own by-laws and there being no relation with the State-government Page 5

regarding funding or other aids, the Union has never adopted the policy made by the Finance Department for the purpose of extending any benefits to its employees which are applicable to the State-government employees. To a question by this court, Mrs. Deb, learned counsel has submitted that under the agreement with LIC, the Union had received premium out of „Group Gratuity Scheme‟ from the petitioner w.e.f. the date of regularization i.e. 01.08.2007, and at the time of retirement, the calculation of the amount of gratuity was made on the basis of the agreement entered into between the Union and LICI and the premium received by LICI and paid by the petitioner.

7. I have considered the submission of learned counsel appearing for the parties to the lis.

8. I find that there is no scrap of paper showing that the Union has ever adopted the policy of the Finance Department, Government of Tripura, rather, by going through the bye-laws of the Union, it has come to light that it has been constituted under the Tripura Co-operative Societies Act, 1974. The members of the Society are democratically elected time to time. It is governed and run by its own bye-laws. At times administrators are appointed if elections are not held. Under 2.1. of the bye-laws, "Act" means the Tripura State Co-operative Societies Act, 1974. Under 2.2. of the bye-laws, "Board" means the Board of Directors constituted as per provision of these bye-laws. Under 2.8. of the bye-laws, "Rules" means the rules framed under the Tripura State Co-operative Societies Rules, 1976. Under 3.2.12. of the bye-laws, it is stipulated that the Union will settle all matters of common interest relating to its members and to further their interests. Rule 3.2.15. of the bye-laws, stipulates that it will undertake housing schemes for the employees of the Union with or without government aid. Rule 3.2.16. of the bye-laws, says that it will raise fund for Page 6

the benefit of the employees of the Union and its members and to assist the same. Rule 4.0. of the bye-laws deals with "Funds". It reads thus:- "4.1.- Funds may be raised by:

4.1.1.- Entrance fees;

4.1.2.- Shares;

4.1.3.- Deposits;

4.1.4.- Loans;

4.1.5.- Grants, Aids and Subsidies;

4.1.6.- The Union may accept funds from any development agency or any financial institution by accepting loan etc. as per the terms and conditions prescribed by such institution as may be mutually agreed upon".

According to Rule 4.2. of the bye-laws, the authorized share capital of the Union shall be Rs. 10,00,000.00 divided into 10,000 shares of Rs. 100.00 allotted to the Primary Milk Produces Co-operative Societies.

9. From the nature of constitution of the „Union‟, as stated above, I am in agreement with the submission of learned counsel appearing for the respondents that the Union is governed and run by its own bye-laws, and its activities are circumscribed within the members of the Union. There is nothing to show that the Union had ever received any grant or aid from any external agencies including the State-government. It is surfaced that considering the interest of the members and employees of the Union, the competent authorities of the Union had entered into an agreement with LICI on 01.01.2002 and in pursuance of the said agreement, as contended by the learned counsel appearing for the Union, the LICI had started to receive premium from each of the members and employees who were on regular service of the Union through the competent authorities as per the agreement between the Union and LICI.

10. Learned counsel appearing for the petitioner is unable to furnish any scrap of paper to justify that the petitioner had paid any premium between 01.01.2002 and 01.08.2007.

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11. I have given my due consideration to the judgment referred to by the learned senior counsel appearing for the petitioner. In the case of Punjab State Electricity Board (supra), it is evident that the Board had adopted the policy of the State-government. At paragraph 22, it was noticed by the Hon‟ble Supreme Court that:

"22. As noticed earlier, by Memo dated 25.11.1985, the Board adopted the Letter dated 20.05.1982 of the Department of Finance, Government of Punjab in order to allocate liability of pension in respect of temporary service rendered under the State Government. .....".

In the case of Prem Singh (supra), the Hon‟ble Supreme Court had observed that the State government has made a classification distinguishing its employees who according to Supreme Court were found to be similarly situated and were discharging identical functions though they were engaged as work-charged employees, which was held to be discriminatory and violative of Articles 14 and 16 of the Constitution of India, and thus, struck down the relevant Rules.

12. In the case in hand, I do not find the Union has made any classification amongst its similarly situated employees. The policy of paying premium in pursuance of an agreement entered into between the Union and LICI has been applied equally. There is no question of any discrimination. The agreement entered into between the Union and the LICI was at the best interest of the employees of the Union. Moreover, the said agreement has not been challenged. Added to it, the petitioner had received the benefits of gratuity in view of the agreement as entered into between her employer-Union and the LICI. In this situation, in the opinion of this court, it would be unreasonable for her to place more demand which would be between the terms of the agreement between her employer and LICI.

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13. In view of this, I do not find the applicability of the principles laid down in the case of Punjab State Electricity Board (supra) and Prem Singh (supra) as held by the Hon‟ble Supreme Court. As I have said earlier, that the Union is not a profiteering organization and it is being run with limited resources. Further, I repel the submission of learned senior counsel appearing for the writ-petitioner that the employees of the Union and the State-government are similarly situated and the memorandums dated 16.07.1978 and 26.09.1979 should be adopted by the Union for the reason, that in the opinion of this court, the employees of the Union and the State-government cannot be equated with each other. It is the settled law that unequals cannot be treated equally.

14. Having viewed thus and discussed here-in-above, in my opinion, the instant writ petition is devoid of any merit, and thus, dismissed. However, there shall be no order as to costs. Pending application(s), if any, also stands disposed of.

JUDGE

Saikat