Tripura High Court
Tripura Apex Fishery Co-Operative ... vs Shri Gouranga Chandra Das on 11 March, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 22
HIGH COURT OF TRIPURA
AGARTALA
WA NO.290 OF 2021
1. Tripura Apex Fishery Co-operative Society Ltd.,
College Tilla, Fishery Office Complex, Agartala, Pin-799004,
Represented by its Executive Officer.
2. Executive Officer,
Tripura Apex Fishery Co-operative Society Ltd.,
College Tilla, Fishery Office Complex,
Agartala, Pin-799004.
...... Appellant(s)
Versus
1. Shri Gouranga Chandra Das,
Son of Lt. Shital Das,
Of Adarsha Colony, P.O.- Jogendranagar,
P.S.- East Agartala, District-West Tripura.
.......Respondent(s)
2. The State of Tripura,
Represented by
The Secretary to the Government of Tripura,
Department of Fisheries, P.O.- Kunjaban, P.S.- New Capital
Complex, District- West Tripura, Agartala-799006.
3. Director, Department of Fisheries,
Government of Tripura, P.O.-Kunjaban,
P.S.- New Capital Complex, District-West Tripura,
Agartala-799006.
........Proforma Respondent(s)
For the Appellant(s) : Mr. G.K. Nama, Advocate.
For the Respondent(s) : Mr. S. Lodh, Advocate.
Mr. K. De, Addl. G.A.
Mr. K. Pandey, Advocate.
Date of hearing : 27.02.2024.
Date of delivery of
Judgment & Order : 11/03/2024
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
(T. AMARNATH GOUD,J)
This present writ appeal has been filed under Rule
2, Chapter V-A of the Gauhati High Court Rules against the
Judgment and Order dated 03.02.2021 passed in WP(C) No.1216 of
2019.
2. The brief fact of this case is that the 1st respondent
herein is the writ petitioner who served the Appellant/respondent
Tripura Apex Fishery Co-Operative Society Ltd.,(referred to as
„society‟) as a Group-D employee from 01.07.1981 until his
superannuation on 30.04.2016. The writ petitioner on retirement
from the service of the „Society‟ bore a grievance that the gratuity
paid to him is not according to law as he is entitled to gratuity
calculated in terms of the provisions of Payment of Gratuity Act,
1972.
3. Before filing the impugned WP(C) No.1216 of 2019,
the petitioner herein filed an earlier writ petition being WP(C)
No.605 of 2017 seeking direction upon the State-respondent to pay
a sum of Rs.4,24,110/- as the balance of the gratuity with statutory
interest w.e.f. 01.06.2016. Vide Judgment dated 10.08.2018, the
earlier writ petition was disposed of. The relevant portion of the said
Judgment and Order are as under:-
"7. This court find further substance in the submission that the delay
being not attributable to the petitioner and his entitlement from the
day one is not disputed by the respondents that certainly make him
entitled for interest on the amount of gratuity remain unpaid @ 9%
from the date it became due and payable in terms of Section 7(3A) of
the Payment of Gratuity Act, 1972.
8. Consequently, writ petition is disposed of with a direction to the
respondents to make payment of the balance sum towards gratuity of
Rs.1,55,755/- along with interest @ 9% from the date it became due
until actual payment with the liberty to the petitioner to claim actual
entitlement as claimed under the Payment of Gratuity Act, 1972 by
adopting the mechanism provided under the law. No costs."
4. The said Judgment dated 10.08.2018 has not been
challenged or questioned by the State. Accordingly, the said
judgment has reached its finality.
5. The petitioner then filed the impugned writ petition
No. WP(C)1216 of 2019 with a prayer of calculating his gratuity in
terms of the provisions of the Payment of Gratuity Act, 1972. The
Society resisted the claim on the ground that the employer „Society‟
does not come under the said Act and the writ petitioner is entitled
to the gratuity in terms of the „Bye-Law‟ of Tripura Apex Fishery Co-
operative Society.
6. The learned Single Judge decided that the
respondent „Society‟ is an „establishment‟ with the meaning of the
Payment of Gratuity Act, 1972 and his gratuity has to be calculated
in terms of Section 4(2) of the said Gratuity Act. The relevant
portion of the said Judgment and Order dated 03.02.021 is
produced here-in-under:-
"Thus, it is clear that the employees who has been
holding the post either in the Central Government or the State Government
can be subjected to the regulation in payment of the gratuity and in their
case, the Payment of Gratuity Act may not have any relevance if the
regulation so framed by the Central Government or the State Government
provides differently.
The respondents No.3 & 4 have admitted that the respondent
No.3 is an establishment within the meaning of Payment of Gratuity Act,
1972. That apart, Mr. Das, learned counsel in response to a query from this
court has admitted that the Society is carrying out its commercial
operation. Thus, there cannot be any amount of confusion in respect of the
status of the respondent No.3. The respondent No.3 is an establishment
under the Payment of Gratuity Act, 1972.
Having observed thus, this court is of the view that the last
„wage‟ is not the basic pay of the petitioner. His gratuity shall be
calculated in terms of Section 4(3) of the Payment of Gratuity Act, 1972.
Such computation be made by the respondents No.3 & 4 within a period of
30 days from the day, on which, the petitioner shall furnish a copy of this
order. The remainder of the gratuity, if any, shall be paid to the petitioner
by another 2[two] months from the date when such computation will be
published by the respondents No.3 & 4. It is made clear that if there
emerges further entitlement in favour of the petitioner, the said remainder
shall carry interest @7% from the date after expiry of 30 days from the
date of retirement of the petitioner in terms of Section 7(3A) of the
Payment of Gratuity Act, 1972.
In terms of the above, this writ petition stands disposed of.
It is observed that the quantum of the basic pay was not in
controversy in the previous writ petition and on the face of unilateral
statement made by the respondents No.3 & 4, the direction was issued in
the earlier writ petition. The observation as regards the basic pay stands
modified. The „wage‟ would be determined as per records.
There shall be no order as to costs."
7. Being aggrieved by said Order dated 03.02.2021
passed in WP(C) No.1216 of 2019, the respondent 'Society' has filed
this present appeal seeking the following reliefs:-
"The relief prayed for before the Hon‟ble Appellate
Court is to quash the order of the Ld. Single Judge In WP(C) No.1216
of 2019 and declare that the employee of appellant society has no
legal obligation to pay gratuity in terms of the payment of gratuity
Act, 1972. All that the employer society is to pay as gratuity to its
employee is not terms of clause 15(v) of the by-laws of the society
which has already been paid to the respondent employee
AND
Grant such relief under law as may be available to the
appellants."
8. Heard Mr. G.K. Nama, learned counsel appearing
for the respondent-Appellant „Society‟ as well as Mr. S. Lodh,
learned counsel assisted by Mr. K. Pandey, learned counsel
appearing for the petitioner-respondent and Mr. K. De, learned
Addl. G.A., appearing for the proforma-respondent State.
9. Mr. S. lodh, learned counsel appearing for the
petitioner-respondent put forth his argument on the entitlement of
Gratuity by his client. In this regard, he referred to Section 1 Sub
Section (3)(c) of the Payment of Gratuity(Central) Rules,
1972.
The same is produced herein under:-
"1.(3)(c) such other establishment or class of
establishment, in which ten or more employees are employed, or were
employed, on any day of the preceding twelve months, as the Central
Government may, by notification, specify in this behalf."
Learned counsel submitted that in terms of this
Section, „Co-operative society‟ comes into the perview of this
Section.
Amid the argument, this Court put a question
whether the „Co-operative society‟ has adopted any rule, and if
adopted what will be the effect. To this query, Mr. Lodh, learned
counsel contented that it has not adopted, but, however, he
referred to Section 14 of Payment of Gratuity(Central) Rules,
1972.
The same is produced here-in-under:-
"14. Act to over ride other enactment, etc,- The Provision of
this Act or any rule made thereunder shall have effect nothwithstanding
anything inconsistent therewith contained in any enactment other than
this Act or in any instrument or contract having effect by virtue of any
enactment other than this Act."
Thereafter again on the point of adoption of own
rule of payment of Gratuity, Mr. Lodh, learned counsel referred to
para-7, 8, 9, 10 and 11 of the Hon‟ble Apex Court Judgment
reported in (2019) 6 SCC 103 titled as Nagar Ayukt Nigam,
Kanpur Vs. Mujib Ullah Khan and anr.
The same is produced here-in-under:-
"7. On the other hand, learned counsel for the
respondent pointed out that the Central Government has published a
notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the
applicability of the Act to the Municipalities. Thus, the Act is applicable to the
Municipalities. The relevant provisions of the Act read as under:
"1. Short title, extent, application and commencement.-
(1) This Act may be called the Payment of Gratuity Act, 1972.
(2) It extends to the whole of India:
Provided that in so far as it relates to plantations or ports, it shall not extend
to the State of Jammu and Kashmir.
(3) It shall apply to-
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time
being in force in relation to shops and establishments in a State, in which ten
or more persons are employed, or were employed, on any day of the
preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more
employees are employed, or were employed, on any day of the preceding
twelve months, as the Central Government may, by notification, specify in
this behalf."
8. A perusal of the above provisions would show that the Act is applicable to
(1) every factory, mine, oilfield, plantation, port and railway company; (2)
every shop or establishment within the meaning of any law for the time being
in force in relation to shops and establishments in a State, in which ten or
more persons are employed, the said provision has two conditions, viz. (i) a
shop or establishments within the meaning of a State law and (ii) in which ten
or more persons are employed; and (3) the establishments or class of
establishments which Central Government may notify.
9. The appellant is not covered by clauses (a) and (b) of
Section 1.(3) of the Act. Clause (a) is not applicable on the face of the
provisions, but even clause (b) is not applicable in view of Section 3 (c) of the
1962 Act as such Act is not applicable to the offices of the Government or
local authorities. The Local Authorities means a municipal committee, district
board etc or entrusted with the control or management of a municipal or local
fund in terms of Section 3(31) of the General Clauses Act, 1897.
10. In terms of the above said Section 1(3)(c) of the
Act, the Central Government has published a notification on 08.01.1982 and
specified Local Bodies in which ten or more persons are employed, or were
employed, on any day of the preceding twelve months as a class of
establishment to which this Act shall apply. The said notification dated
08.01.1982 reads as under:-
" New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239....-In
exercise of the powers conferred by clause (c) of sub-section (3) of section 1
of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government
hereby specified „local bodies‟ in which ten or more persons are employed, or
were employed, on any day preceding twelve months, as a class of
establishments to which the said Act shall apply with effect from the date of
publication of this notification in the Official Gazette.
Sd/.
(R. K. A. Subrahmanya)
Additional Secretary
(F. No. S-70020/16/77-FPG)"
11. We find that the notification dated 08.01.1982 was not referred to before
the High Court. Such notification makes it abundantly clear that the Act is
applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has
given an overriding effect over any other inconsistent provision in any other
enactment. The said provision reads as under:
"14. Act to override other enactments, etc. - The provisions of this Act or any
rule made thereunder shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act or in any instrument
or contract having effect by virtue of any enactment other than this Act."
After quoting the above, the learned counsel
submits that in view of the notification placed by him, his client
comes under the perview of Section 1 sub Section 3 of the Act.
Even if the 'society' has made its own Rule for payment of Gratuity,
Section 14 of the 'Act' has an overriding effect.
Learned counsel further submitted that respondent-
appellant „Cooperative Society‟ admitted that they are
„establishment‟ within the meaning of Payment of Gratuity Act,
1972. In respect to this argument, learned counsel referred to
below-mentioned paras of the impugned order dated 03.02.2021:-
"The respondents No.3 & 4 have admitted that the
respondent No.3 is an establishment within the meaning of Payment of
Gratuity Act, 1972. That apart, Mr. Das, learned counsel in response to
a query from this court has admitted that the Society is carrying out its
commercial operation. Thus, there cannot be any amount of confusion
in respect of the status of the respondent No.3. The respondent No.3 is
an establishment under the Payment of Gratuity Act, 1972."
Stating thus, learned counsel submitted that as per law,
payment of the Gratuity Act, 1972 is applicable in the case of his
client.
10. To counter the said argument, Mr. G.K. Nama,
learned counsel appearing for the respondent contended that the
recording of facts by the learned Judge is not correct and referred
to Para-5 of their affidavit in opposition wherein it is stated thus:-
" That with regard to the averments made in para-3 of
the petition, I say that the Gratuity Act is not applicable to the respondent
society. The society follows its own decision in paying the amount of gratuity
and determines the amount of gratuity of an employee as per rule-9 of the
Tripura State Civil Services(Revised Pension) Rule 2017 As per the rule the
formula for determination of gratuity is ½ half of emoluments for every
completed 6(six) monthly period of qualifying service subject to a maximum
of 22 time of emoluments."
Submitting this, learned counsel stated that the
„Co-operative Society‟ is not an establishment and the 'Act' is not
applicable to the 'Society‟.
On the query of the Court that whether the Co-
operative society is not an „establishment‟ in terms of Section 1.(C)
of the Act, and if not what is its legal status, Learned counsel stated
that the definition of 'establishment' is given under the Shop and
Establishment Act, Tripura 1972. The same is produced here-in-
under:-
"(e) "establishment" means a commercial establishment or an establishment
for public entertainment or amusement;
(f) "establishment for public entertainment or amusement" means a hotel,
restaurant, eating-house, cafe, cinema, theatre and includes such other cases
or classes of concerns or undertakings as the Administrator may, after taking
into consideration the nature of their work, by notification, in the Tripura
Gazette, declare to be, for the purposes of this Act, establishments for public
entertainment or amusement, but does not include a shop or a commercial
establishment;
On the query of the Court why the 'Society‟ is
following the Tripura State Civil Services(Revised Pension) Rule
2017, Mr. Nama, learned counsel stated Section 15 of the „Bye Law‟
of Tripura Apex Fishery Co-operative Society. The same is produced
herein under:-
"15. Pay and allowances and other concession:
1) The Managing Committee shall be the competent authority to adopt Pay and
allowances and concessions as provided by the Govt. of Tripura for the
employees of Tripura Apex Fishery Co-operative Society Limited provided that
approval from Fishery Department may be obtained before allowing the pay Scale
and allowances xxxxxxxxxxxxxxxxxx
v.The employee's of the society shall be entitled to get LTC, Gratuity and Leave
salary as admissible to the employee's of Govt. of Tripura, provided that the L. T.
C. and Leave salary of the employee's will be considered on the basis of
availability of fund."
Stating thus, learned counsel submitted that it is
their guidelines and they follow the same. Learned counsel
submitted that his client is not an „establishment‟ and it is a weaker
section welfare cooperative society for the betterment and
upliftment of the downtrodden who are its members and doing
fishing as their professions and is not obligated to pay gratuity in
terms of the Payment of Gratuity Act, 1972.
11. On the point that they are not challenging the
Central Govt. Notification dated 20th August 1997 and view of
Section 14 of the 'Act' it has the overriding effect and there is no
need to challenge the same, Mr. Lodh, learned counsel appearing
for the petitioner referred to below mentioned relevant paras of
Division Bench Order of this Court passed on 29.01.2021 titled as
WA No.185 of 2020 between the Agartala Municipal
Corporation and Sri Samir Kumar Ghosh and ors:-
"Mr. Deb, learned senior counsel appearing for the Municipal
Corporation-appellants has submitted that the writ petitioner, the respondent
No.1 herein had retired from the service on 31.12.2015 as the Head Clerk.
Within time, his gratuity had been paid following the notification No.F.8(3)-
FIN(G)09 dated 05.05.2009 issued by the Finance Department declaring the
maximum ceiling of retirement gratuity @ Rs.4,00,000/-.
On the basis of the said notification which was adopted by the
Municipal Corporation-appellant, the due gratuity had been paid to the
petitioner. But the petitioner has challenged the decision of the Municipal
Corporation-appellant by stating that the amount of gratuity would be
determined by Section 4(3) of the Payment of Gratuity Act, 1972 inasmuch as
Agartala Municipal Corporation is an establishment within the definition of
Section 1(3)(c) of the Payment of Gratuity Act, 1972.
It is not in dispute that the Central Government having due
regard to the Section 1(3)(c) of the said Act has published a notification on
08.01.1982 and the said notification as referred above provides as follows:-
"S.O. No.239....In exercise of the powers conferred by
clause © if sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972
(39 of 1972), the Central Government hereby specified "local bodies" in which
ten or more persons are employed, or were employed, on any day preceding
twelve months, as a class of establishments to which the said Act shall apply
with effect from the date of publication of this notification in the Official
Gazette."
Thus, there cannot be any amount of dispute that Agartala
Municipal Corporation comes within the establishment, in terms of Clause-C of
sub-Section 3 of Section 1 of the Payment of Gratuity Act, 1972.
Mr. S. Deb, learned senior counsel has contended that by
means of Tripura Municipal Act, 1994, the municipal bodies have their
authority to determine pay and allowances, pension and gratuity. However, no
such specific provision has been referred to. As stated, the Municipal
Corporation has adopted the said notification dated 05.05.2009. That apart,
Mr. Deb, learned senior counsel has submitted that since Agartala Municipal
Corporation has adopted its own rule of Payment of Gratuity Act, the
provisions of Payment of Gratuity Act, 1972 will not apply to its employee. In
support of his contention Mr. Deb, learned senior counsel has referred a
decision of the apex court in Nagar Ayukt Nagar Nigam, Kanpur vs. Mujib
Ullah Khan and Another reported in (2019) 6 SCC 103 the passages as follows
have been highlighted:-
"8. A perusal of the above provisions would show that the Act is
applicable to (1) every factory, mine, oilfield, plantation, port and railway
company; (2) every shop or establishment within the meaning of any law for
the time being in force in relation to shops and establishments in a State, in
which ten or more persons are employed, the said provision has two
conditions, viz. (i) a shop or establishments within the meaning of a State law
and (ii) in which ten or more persons are employed; and (3) the
establishments or class of establishments which Central Government may
notify. 9. The appellant is not covered by clauses (a) and (b) of Section 1(3)
of the Act. Clause (a) is not applicable on the face of the provisions, but even
clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such
Act is not applicable to the offices of the Government or local authorities. The
Local Authorities means a municipal committee, district board etc or entrusted
with the control or management of a municipal or local fund in terms of
Section 3(31) of the General Clauses Act, 1897."
According to Mr. Deb, learned senior counsel, having due
regard to the pedagogy of the powers, repugnance will not apply in the
present case.
We are unable to accept that analogy inasmuch as the
Payment of Gratuity Act while defining employee by Section2(e) has provided
that employee means any person (other than an apprentice) employed on
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.
This exception has been curved out is for the Central Government
and the State Government, who have their independent source of power to
frame any Act or rules for their own employees. In that case, in respect of
those employees, the provision of Payment of Gratuity Act will not apply.
Admittedly, the writ petitioner is not an employee of the
Central Government or State Government but of a local body. As such the
said exception as curved out while defining „employee‟ cannot authorise
Agartala Municipal Corporation (the appellant) to make their own rules which
is in contrast to the provisions of Central Statute namely the Payment of
Gratuity Act, 1972 inasmuch as the Central Government has notified that local
bodies having employees more than ten would be covered by the provisions of
Payment of Gratuity Act, 1972."
However, on the query of the Court, Mr. Lodh,
learned counsel appearing for the petitioner submitted that there is
no impugned order of the respondents under challenge.
12. Heard both sides and perused the evidence on
record.
13. Before discussing the merit of the case, let us first
produce the Central Govt. notification dated 20th August 1997 that
deals with trust, society and cooperative society. The same is
produced here-in-under:-
"New Delhi, the 20th August, 1997
S.O. 2218. In exercise of the powers conferred by clause (c) of
sub-section 3 of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972).
the Central Government hereby specifies the trusts or societies, registered
under the Societies Registration Act, 1860 (21 of 1860), or under any other law
with respect to societies for the time being in force in any State, in which ten or
more persons are employed or were employed for wages on any day of the
preceding 12 months as a class of establishments to which the said Act shall
apply with effect from the date of publication of this notification in the Official
Gazette."
14. Here in we may incorporate Section 1 of The
Societies Registration ACT, 1860, wherein it deals with society
formed by memorandum of association and registration:-
1. Society formed by memorandum of association and
registration.- Any seven or more person associated for any literary, scientific or
charitable purpose, or for any such purpose as is described in Section 20 of this
Act, may, by subscribing their names to a memorandum of association, and
filing the same with the Registrar of Joint-stock Companies formed themselves
into a society under this Act.
15. In Section-1 of the „Bye-law‟ of the Tripura Apex
Fishery Co-operative-Society (First Amendment 2009), the name,
address and area of Operation are stated as under:-
i. The Tripura Apex Fishery Co-operative Society
Ltd. is registered as Co-operative Society under Tripura Co-
operative Society Act. 1974. Its address shall be at Agartala,
Tripura.
ii. It‟s area of operation shall be confined to the
whole of Tripura State.
iii. Any change in the Address shall be notified to
the Registrar Co-operative Societies, Tripura within 15 days os
such change.
16. Let us also examine the meaning of „establishment‟
as given in The Law Lexicon, Fifth Edition:-
'Establishment' means any places or premises, including the
precincts thereof, in which or in any part of which any scheduled employment is
being or is ordinarily carried on. [Maharashtra Mathadi, Hamal and Other Manual
Workers (Regulation of Employment and Welfare) Act 30 of 1969) S. 2(4) as
cited in Pepsico India Holding Private Limited v. Grocery Market and Shops
Board, (2016) 4 SCC 493, para 8].
ESTABLISHMENT means an organization which employs per-
sons, between whom and the establishment, the relationship of employee and
employer comes to exist. V. Transport (P) Ltd. v. R.P.F. Commissioner, AIR 1965
Mad 466, 467. [Emp- loyees Provident Fund Act (19 of 1952), S. 16 (As
amended in 1960)]
17. The definition of „establishment' as per the Oxford
dictionary is as under:-
"Establishment:-1) an organization, a large institution or a
hotel. 2) the people in a society or a profession who have influence and
power and who usually do not support change. 3) the act of starting or
creating sth that is meant to last for a long time.
18. The definition of „establishment' as per The Shop
and Establishment Act, 1970 is as under:-
"(e) "establishment" means a commercial establishment or an establishment for
public entertainment or amusement;
(f) "establishment for public entertainment or amusement" means a hotel,
restaurant, eating-house, cafe, cinema, theatre and includes such other cases or
classes of concerns or undertakings as the Administrator may, after taking into
consideration the nature of their work, by notification, in the Tripura Gazette,
declare to be, for the purposes of this Act, establishments for public
entertainment or amusement, but does not include a shop or a commercial
establishment;
19. Here we may also produce the meaning of „wages‟
as given in the Law Lexicon, Fifth Edition:-
"Wages. A compensation or remuneration given to a
hired person for his or her service. [S. 2(rr), Industrial Disputes Act (14 of
1947)]. The price or money paid for labour. Agreement between group of
persons for payment of money as between themselves on the happening of
an event though they are not personally interested and have no control on
the happening of that event.
„Wages‟ means remuneration, which an employer is
liable to pay, if the terms of the contract of employment are fulfilled. As the
amount of maternity benefit is payable even if the terms of employment are
not fulfilled, it cannot be said to be wages within the meaning of this term
given in the Payment of Wages Act (4 of 1936), S. 2(vi). Ganpatlal
Mulchandji Joshi v. First Civil Judge, Class 1. AIR 1958 Bom 262, 264."
20. The definition of „wages' as given in the Oxford
Dictionary is as under:-
" wage- a regular amount of money that you earn,
usually every week, for work or services.
21. The definition of „wages' as given in the Shop and
Establishment Act, 1970 is as under:-
„" Wages" means wages as defined in the Payment of
Wages Act, 1936‟.
22. The definition of 'wages' as given in the Payment of
Wages Act, 1936 is as under:-
"[(vi) "wages" means all remuneration (whether by way of salary,
allowances, or otherwise) expressed in terms of money or capable of being
so expressed which would, if the terms of employment, express or implied,
were fulfilled, be payable to a person employed in respect of his employment
or of work done in such employment, and includes-
(a) any remuneration payable under any award or settlement between the
parties or order of a Court;
(b) any remuneration to which the person employed is entitled in respect of
overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of employment
(whether called a bonus or by any other name);
(d) any sum which by reason of the termination of employment of the
person employed is payable under any law, contract or instrument which
provides for the payment of such sum, whether with or without deductions,
but does not provide for the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme
framed under any law for the time being in force,
but does not include-
(1) any bonus (whether under a scheme of profit sharing or otherwise)
which does not form part of the remuneration payable under the terms of
employment or which is not payable under any award or settlement between
the parties or order of a Court;
(2) the value of any house-accommodation, or of the supply of light, water,
medical attendance or other amenity or of any service excluded from the
computation of wages by a general or special order of ¹[the appropriate
Government];
(3) any contribution paid by the employer to any pension or provident fund,
and the interest which may have accrued thereon:
(4) any travelling allowance or the value of any travelling concession:
(5) any sum paid to the employed person to defray special expenses
entailed on him by the nature of his employment; or
(6) any gratuity payable on the termination of employment in cases other
than those specified in sub-clause (d).]"
23. The definition of „wages‟ as given in Section 2 of
the Payment of Gratuity Act, 1972 is given as under:-
"s) "wages" means all emoluments which are earned by an
employee while on duty or on leave in accordance with the terms and
conditions of his employment and which are paid or are payable to him in
cash and includes dearness allowance but does not include any bonus,
commission, house rent allowance, overtime wages and any other
allowances."
24. It is a settled principle of law that the admitted fact
need not be put to the test of proof. As seen from the record and as
admitted by the „Society‟, it is an 'establishment' and the petitioner
is its employee and he had served for a considerable period. Now
since the relationship as an „employee‟ and the „employer‟ is not in
dispute and the status of the society is also not in dispute, thus the
issue of the entitlement of the petitioner for claiming gratuity is the
issue that falls for consideration.
25. It is the case of the „Society‟ that it is following the
Tripura State Civil Services (Revised Pension) Rule and accordingly,
the „Society‟ follows Clause No.15 of the „bye-law‟ of the Tripura
Apex Fishery Co-operative Society and the gratuity amounts have
been calculated and the same have been disbursed to the
petitioner. Clause-15 of the Tripura Apex Fishery Co-operative
Society „Bye-law‟ is again extracted here for convenience:-
"15. Pay and allowances and other concession:
1) The Managing Committee shall be the competent authority to
adopt Pay and allowances and concessions as provided by the Govt.
of Tripura for the employees of Tripura Apex Fishery Co-operative
Society Limited provided that approval from Fishery Department may
be obtained before allowing the pay Scale and allowances.
ii) Provided that if the Society has incurred loss or has accumulated
losses in the Account, the Managing Committee shall not increase the
Scale of Pay or any allowances sanction by the Govt. of Tripura...
iii) Promotion, Annual Increment, Travelling Allowance:
The Society will be followed the Rules and Regulations as provided to
the Employees of Govt. of Tripura.
Liveries and washing allowance may also be paid to the Employees of
Society as admissible to State Gov. Employees.
iv) The Employees of the Society: shall be entitled to Festival
Advance/Festival Grant as admissible to the Employees of Govt. of
Tripura. Provided that this will be considered on the basis of
availability of fund.
v) The employee's of the society shall be entitled to get LTC, Gratuity
and Leave salary as admissible to the employee's of Govt. of Tripura,
provided that the L. T. C. and Leave salary of the employee's will be
considered on the basis of availability of fund."
26. The present litigation has arisen from the inception
of WP(C) No.605 of 2017 and its subsequent disposal on
10.08.2018, wherein, the learned Judge has considered the case in
its entirety and decided that the petitioner be paid gratuity as per
the provisions of the Payment of Gratuity Act, 1972. The said
Judgment has become final as no appeal has been preferred by the
„Society‟.
27. In pursuance thereof, the respondent-Society has
computed the amounts and disbursed the same to the petitioner
and the petitioner has accepted the same. However, having
received the said amounts, the petitioner has again challenged the
action of the respondents to say that the computation has been
made by the „Society‟ in terms of the Tripura State Civil Services
(Revised Pension) Rule by following clause No.15 of the „bye-law‟ of
the Tripura Apex Fishery Co-operative Society, but not under
Payment of Gratuity Act, 1972 and claimed to make the said
payment as the petitioner is entitled to some more amounts. It is
also a settled principle that when an issue is to be decided in the
absence of any State or Central Act, the matter would be dealt by
following the 'bye-laws' from the regulation of the local body. In the
event if the regulations of the local body and the existence of the
State Act/Rules are prevailing, definitely, the said Act and Rules
would be considered in deciding the matter. Now it is a case where
the subject matter deals with the payment of gratuity and the issue
falls under the Payment of Gratuity Act, 1972, which is a Central
Act.
28. It is seen from the counter affidavit that the
„Society‟ contended that it is following the Tripura State Civil
Services (Revised Pension) Rule by following Clause No.15 of the
„bye-law‟ of the Tripura Apex Fishery Co-operative Society and
accordingly settled the payment of Gratuity to the petitioner and
they have not adopted the Central Act i.e., the Payment of Gratuity
Act, 1972. This argument is not open for the „Society‟ since it is a
settled principle of law that the Central Act would always prevail
over the State Act and any regulations of the local bodies. Thus,
this Court has no hesitation to say that the petitioner is entitled to
claim the gratuity in terms of the Payment Gratuity Act 1972 and
the contention of the „Society‟ that it has not adopted the Central
Act and, accordingly, the same is not binding upon it and it is
functioning by following the State Act and its „bye-law‟ is negated.
29. It is seen from the order dated 03.02.2021 in
WP(C) No.1216 of 2019 which is the subject matter of this writ
appeal that while declaring that the petitioner is entitled under the
Central Act, the Court has categorically indicated in the Order that
the petitioner be paid his gratuity in terms of Section 4 of the „Act‟.
Section 4 of the Payment of Gratuity Act is given as under:-
"4. Payment of gratuity. (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,-
(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:
(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
23 [an employee who is employed in a seasonal establishment and who is
not 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
(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.
(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 27 [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."
30. A fair reading of the above Section emphasizes
that the Gratuity shall be payable to the employee as per the
calculation in terms of the „wages‟. The said section does not
indicate the term „salary‟.
31. The definition of the term 'salary‟ as given in Law
Lexicon, Fifth Edition is as under:-
"Salary. Fixed payment made periodically to a person
as compensation for regular work (now usually for non-manual work). [S.
6(f), T.P. Act (4 of 1882)].
SALARY is a periodical allowance made as
compensation to a person, for his official or professional services or for
his regular work; an agreed compensation for services, payable at regular
intervals; the periodical compensation due to men in official and other
situations; an annual or periodical pay- ment for services, a stipulated
periodical recompense; a stipend wages; hire; an allowance. A fixed sum
paid to a person for his services, yearly, half-yearly, or quarterly;
stipend; wages; annual or periodical wages or pay; hire; fixed regular
wages, as by the year, quarter, or month."
32. The definition of „salary' as given in the Oxford
Dictionary is as under:-
"Salary:- money that employees receive for doing their job,
especially professional employees or people working in an office, usually
paid every month"
33. Though the terminology „salary‟ and „wages‟ appear
to be the same as they are consideration to be paid by the
'employer' to its „employee‟ for the services rendered, the salary is
again divided into several terminologies like basic pay/basic salary,
gross pay/gross salary and net pay/net salary. Since the
terminology of the „salary‟ is not used under Section 4 of the Act, it
is open for neither the petitioner nor the „Society‟ to calculate the
amount of gratuity in terms of „salary‟. As per the definition of
„wages‟ given under Section 2 of Payment of the Gratuity Act, 1972
as stated supra, the computation has to be made.
34. In all fairness, the petitioner is expected to submit
his statement in terms of „wages‟ and the „Society‟ is also expected
to give its computation in terms of the „wages‟ only. But, as it is
seen from the record that the petitioner has claimed the gratuity on
the pretext that his last payment was Rs.23,272/- and whereas in
the counter affidavit filed by the „Society‟, it is stated that the basic
salary of the petitioner is Rs.12,470/-. The mere bank statement
which is filed by the petitioner to show that his last salary drawn
does not suffice the definition of „wages‟ to claim the payment of
gratuity. Both the petitioner and the „Society‟ has not drawn the
attention of this Court to the salary break-up figures and to
consider the figures under the light of the definition of „wages‟
under the Payment of Gratuity Act. The order passed in the writ
petition also has not decided on the facts and figures, but, it is left
open to the petitioner and the „society‟ to settle the matter on the
basis of the 'wages' as stipulated under the Payment of Gratuity Act
but the „society‟ is in appeal against the said order.
35. This Court finds no infirmities in the order passed
in the impugned writ petition. It is kept open to the petitioner as
well as the „Society‟ to settle the matter in the light of the Order
passed as expeditiously as possible.
36. With the above observation and direction, this
present writ appeal stands dismissed. As a sequel, stay if any
stands vacated. Pending application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2024.03.12
SINGHA 16:26:07 +05'30'
