Swadesh Deb vs The State Of Tripura
2022 Latest Caselaw 896 Tri

                      HIGH COURT OF TRIPURA
                            AGARTALA

                             WP(C) 511 OF 2022

1. Swadesh Deb, son of Late Sudhir Chandra Deb,
R/o Natun Palli, near Chatra Sangha Club, Agartala, West Tripura.

2. Sri Nepal Debnath, son of Late Dwarika Debnath,
R/o Town Bordowali, near Forest Range Office, West Tripura.
                                                       ......Petitioners.
                                  Vrs.

1. The State of Tripura, to be represented by the Secretary,
Department of Finance, Govt. of Tripura, New Secretariat Building,
New Capital Complex, Agartala, West Tripura, PIN:799010.

2. The Secretary, Department of Finance, Govt. of Tripura,
New Secretariat Building, New Capital Complex,
Agartala, West Tripura, PIN:799010.

3. Tripura Road transport Corporation, (A Govt. of Tripura undertaking)
to be represented by the Chairman, Tripura Road Transport Corporation,
Krishnanagar, Agartala, West Tripura.

4. The Managing Director, Tripura Road Transport Corporation,
Krishnanagar, Agartala, West Tripura.

5. The Director, Directorate of Industries and Commerce,
Khejurbagan, Agartala.
                                                             ----Respondents

Present:

For the petitioner (s) : Mr.Samarjit Bhattacharjee, Advocate.

For the respondent (s) : Mr. K. De, Addl. G.A.

Mr. K. C. Bhattacharjee, Advocate.

    Whether fit for            : No.
    reporting





              HON'BLE MR.JUSTICE ARINDAM LODH
29.09.2022
                          Judgment & Order (oral)

Heard Mr. Samarjit Bhattacharjee, learned counsel appearing

for the petitioners. Also heard Mr. K. De, learned Addl. G.A. appearing for

the State-respondents and Mr. K. C. Bhattacharjee, learned counsel

appearing for the respondents-Tripura Road Transport Corporation.

2. By way of filing the present writ petition, the petitioners have

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 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 make the full and final payment of Gratuity with interest @ 9% per annum on Rs.2,25,384/- to the petitioner no.1 w.e.f. 03.04.2022, till the date of payment.

(II) Issue rule upon the Respondents to show cause as to why 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 make the full and final payment of Gratuity with interest @ 9% per annum on Rs.2,27,692/- to the petitioner no.2 w.e.f. 01.11.2021, till the date of actual payment.

(III Issue rule upon the Respondents to show cause as to why 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 make the full and final payment of Gratuity with interest @ 9% per annum on Rs.10,00,000/- to the petitioner no.2 w.e.f. 01.11.2021 to 01.04.2022 i.e. upto the date on which 10,00,000/- was paid.

(IV) Make rules absolute.

(V) Call for records.

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

3. Briefly stated, the petitioners were the employees under the

Tripura Road Transport Corporation (for short, TRTC), the respondent

nos.3 and 4. Petitioner no.1 joined in the service on 03.03.1986 as a Bus

Conductor. After attaining the age of superannuation the petitioner retired

from service w.e.f. 28.02.2022. Petitioner no.2 joined in the service on

28.02.1986 as a Traffic Assistant and after attaining the age of

superannuation, he retired from service w.e.f. 30.09.2021. It is the

contention of the petitioners that after the retirement as per ceiling limit of

Rs.20,00,000/-, the petitioner no.1 is entitled to Rs.12,62,146/- and the

petitioner no.2 is entitled to Rs.12,64,523/- as gratuity. But, the

respondents-TRTC have caused payment of Rs.10,00,000/- towards the

petitioners as gratuity. The petitioners have prayed for payment of balance

amount which they are 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 petitioners have urged that they are 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. Bhattacharjee, learned counsel

appearing for the petitioners submitted that this writ petition is well

covered by the judgment of learned Single Judge dated 20.02.2020 in case

of Lal Zakim Rokhum vrs. Tripura Road Transport Corporation & Anr.

in WP(C) No.1209 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:

"[4] The corporation contends that such revised ceiling for payment of gratuity would not be applicable to State Government Corporations unless the Government notifies such revised ceiling and permits the Corporation to pay the same. In this context respondents have placed on record a memorandum dated 15.09.2016 issued by the Labour Commissioner, Government of Tripura in which it has been stated as under:

"The Ministry of Law and Justice (Legislative Department), Government of India enhanced the rate of ceiling of gratuity as per the Payment of Gratuity (Amendment) Act, 2010 (N0.15 of 2010) published in the Gazette of India, Extraordinary Issue dated 18th May, 2010 (Copy enclosed). The Notification shall be deemed to have come into force on the 18th May, 2010.

Hence, all the PSUs/Autonomous Bodies/ Societies/ Boards/ Corporations under different Department of the State Government are hereby directed to take necessary arrangement to pay the amount of gratuity to the eligible employees/Workers as per provisions of the Payment of Gratuity(Amendment) Act, 2010 (No.15 of 2010) The Payment of Gratuity Act, 1972 should not be extended without prior concurrence of the Finance under Any circumstances. This direction has been given by the Finance Department, Government of Tripura vide No. F.20(() Fin(G)/2004 dated 16th August, 2011"

[5] Both these issues came up for consideration in two recent judgments passed by this Court. In case of Sri Bhupati Debnath Vrs. The State of Tripura and Others: W.P(c) No. 1054/2019 (decided on 13th February, 2020) under somewhat similar circumstances it was held and observed as under:

"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.

12. The corporation cannot cite the reason of financial constraints indefinitely for paying post retiral benefits of its employees. The petitioner has put in more than 29 years of service. His service is not governed by the pension scheme. After his retirement, therefore, he would have only savings in the form of gratuity, provident fund accumulated in his account and leave encashment, if any, to fall back upon in his old age. Such amount must, therefore, be paid over to him as soon as possible.

13. Under the circumstances, petition is disposed of with following directions:

(i) As provided earlier, the petitioner shall apply to the respondent No.2 stating his calculation of payable gratuity. The respondent No.2 shall examine the petitioner's calculation and convey to him if any gratuity remains still payable;

(ii) While calculating such gratuity, revised limit of Rs.20,00,000 (rupees twenty lakhs) shall be applicable;

(iii) If there is any shortfall in payment of gratuity, the same shall be paid within a period of 4(four) months from today with simple interest @ 7.5% per annum from one month after the date of superannuation till actual payments;

(iv) The remaining amount of leave encashment shall be released within a period of 4(four) months from today. The entire leave encashment payment shall carry simple interest @ 7.5% per annum from one month after the date of retirement till actual payments;

(v) The gratuity already paid shall also carry simple interest @ 7.5% per annum from one month after the date of retirement till actual payments."

[6] In case of Smt. Mamata Singha Roy Vrs. The State of Tripura and another: W.P(c) No. 1057/2019 (decided on 13th February, 2020) in the context of the said memorandum dated 15.09.2016 it was further observed as under:

"8. Under the office memorandum dated 15.09.2016 the Government correctly clarified this position and required all PSUs/ Autonomous Bodies/ Societies/ Boards/ Corporations under different departments to make arrangements to pay the amount of gratuity as per the said revised limit. In the last paragraph, however, it has been stated as under:

"The payment of Gratuity Act 1972 should not be extended without prior concurrence of the Finance under any circumstances. This direction has been given by the Finance Department, Government of Tripura vide No.-F.29(9)- Fin(G)/2004 dated 16th August 2011."

9. This portion cannot nullify the earlier clarification of all PSUs/Autonomous Bodies/Societies etc. under the department of the State Government to pay gratuity as per the revised limit under the Payment of Gratuity (Amendment) Act, 2010 (Act No.15 of 2010). Firstly, no directive not to pay gratuity as per the statutory provision, can be made by executive instructions. Secondly, one possible meaning of this clarification is that when an organisation is extending the benefit of Payment of Gratuity Act, concurrence of the Finance Department will be needed. In either case, this last paragraph of the said

office memorandum cannot govern the present case as per the correct legal position emerging from this statute.

10. Thus, when the legislature amended the said Act by Payment of Gratuity (Amendment) Act, 2010 (Act No.15 of 2010) and revised the ceiling of gratuity from Rs.3,50,000 (three lakhs fifty thousand) to Rs.10,00,000 (rupees ten lakhs), the petitioner was governed by such provision. The ceiling of gratuity payable was thus raised to Rs.10,00,000 (rupees ten lakhs). On the date of retirement this provision was applicable. The act of the respondent No.2 to restrict her gratuity to Rs.4,00,000 (rupees four lakhs) against the computed gratuity of Rs.6,35,754 was incorrect.

11. In the result, the petition is allowed. The respondents are directed to release the remaining amount of gratuity of Rs.2,35,754 by applying the revised limit. This payment shall be made along with simple interest @ 7.5% per annum from one month after the date of retirement till actual payments. Directions to be carried out within 4(four) months from today."

[7] In view of the above discussion, respondents are directed to release the remaining amount of gratuity payable to the petitioner which shall carry simple interest @ 7.5 % after completion of one month from the date of retirement till actual payment. Payment shall be made within three months from today."

5. Mr. Bhattacharjee, learned counsel relying on the above

decisions 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 dates of retirement of the

petitioners.

6. Since the factual aspects of the present writ petition is similar

and identical to the subject matter of the case of Lal Zakim Rokhum

(supra), this writ petition is also, therefore, allowed and disposed of in the

same terms.

7. Accordingly, the respondents are directed to make necessary

payment of gratuity towards the petitioners 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.

JUDGE

sanjay