Tripura High Court
Smt. Sabita Chanda vs The State Of Tripura on 27 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.798 of 2024
Smt. Sabita Chanda,
Aged 71 years,
Wife of Sri Biswanath Dey,
Resident of A.D. Nagar, Road No.9,
Agatala, District: West Tripura,
PIN:799 003
----Petitioner (s)
Versus
1. The State of Tripura ,
To be represented by the Secretary/Principal Secretary,
Department of Education, Govt. of Tripura,
New Secretariat Building, New Capital Complex,
Agartala, West Tripura, PIN: 799 001
2. The Secretary,
Department of Finance,
Government of Tripura,
New Secretariat Building, New Capital Complex,
Agartala, West Tripura, PIN:799 010
3. The Director,
Directorate of School Education,
Govt. of Tripura, Agartala, West Tripura,
PIN:799 001
4. The Accountant General,
Office of the Accountant General (A & E),
Agartala, Tripura, PIN: 799 006
5. The Senior Accounts Officer,
Office of the Accountant General (A & E),
Agartala, Tripura, PIN: 799 006
---- Respondents (s)
For Petitioner(s) : Mr. Purusuttam Roy Barman,
Senior Advocate
Mr. Kawsik Nath, Adv.
For Respondent(s) : Mr. Dipankar Sharma, Addl. G.A.
Mr. Debalaya Bhattacharya,
Sr. Adv.
Mr. Soumyadeep Saha, Adv.
Date of Hearing : 07.03.2025
Date of delivery of
Judgment and Order : 27.03.2025
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
By means of filing this writ petition the petitioner has
prayed for the following reliefs:
(i) Issue Rule upon the Respondents to show
cause as to why a writ in the nature shall not be
issued whereby directing the Respondents to
cause full and final payment to the Petitioner on
the basis of Ceiling Limit of Rs.10,00,000/- by
taking into account 21 years of service as
rendered by the Petitioner and the last Basic pay
of Rs.16,840/- and his Dearness Allowance of
Rs.4,042/- after adjusting the payment already
made to the Petitioner.
(ii) 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
cause payment of interest @ 9% per annum on
the balance amount of gratuity w.e.f. the date on
which gratuity became payable i.e. 30 days after
retirement from service till the date payment is
made.
(iii) 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 declaring that the Notification,
dt. 05.05.2009, issued by the Finance
Department, Govt. of Tripura, must be made in
consonance with the Payment of Gratuity Act so
far determination of gratuity and ceiling limit of
gratuity are concerned.
(iv) 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 quashing and cancelling the
Memo, dated 15.07.2024, passed by the Director
of Secondary Education, West Tripura, i.e the
Respondent No.3 herein.
(v) Make the rules absolute.
(vi) Call for records.
(vii) Pass any further order/orders as this Hon'ble
High Court considered fit and proper.
02. Heard Learned Senior Counsel Mr. P. Roy Barman
assisted by Mr. K. Nath, Learned counsel appearing for the
petitioner as well as Learned Addl. G.A. Mr. D. Sharma
appearing for the State and Mr. D. Bhattacharya, Learned
Senior Counsel assisted by Mr. S. Saha, Learned counsel
appearing for the respondents No.4 and 5.
03. The gist of the petition filed by the petitioner is
that the petitioner had joined service on 09.02.1990 in the
post of Post Graduate Teacher under the Education
Department. By memo dated 09.02.1990 issued by the
Directorate of Higher Education, Govt. of Tripura the
petitioner was offered a purely temporary post of Post
Graduate Teacher under the Govt. of Tripura on a pay of
Rs.1,000/- per month on terms and conditions stated in the
memo. Thereafter vide memo dated 21.03.1990 issued by
the director of School Education, Tripura the petitioner was
given posting as Post Graduate Teacher to Amtali Class-XII
School, Sadar and asked to report for duty at the place of
posting and submit joining report to the Headmaster, Amtali
Class-XII School, Sadar. The service of the petitioner under
the Directorate of School Education had been extended from
time to time. After that vide memo dated 15.03.2011 issued
by the Director of School Education, 15 employees under
the Directorate of School Education, Govt. of Tripura were
given extension of service for a period of three months. In
the list attached with the memo, the name of the petitioner
appears at SI No.15 and the date of her retirement is
reflected as 30.06.2011. On attaining the age of
superannuation, the petitioner retired from service w.e.f.
30.06.2011. At the time of retirement, the last basic pay of
the petitioner was 16,840/- and D.A was Rs.4,042/- and
petitioner was holding the post of Assistant Teacher, PGT at
Madhuban H.S School, Bishalgar, West Tripura having in her
credit about 21 years of service.
04. After that, vide Gratuity Payment Order dated
29.02.2012 issued by the Sr. Accounts Officer, office of the
Sr. Deputy Accountant General (A & E) Tripura, an amount
of Rs.1,32,615/- was sanctioned in favour of the petitioner
as payment of provisional DCRG. An additional amount of
Rs.48,615/- was sanctioned in favour of the petitioner at a
later date, thereby making the total amount received by the
petitioner to be Rs.1,81,230/-. After retirement regular
monthly pension under CCS (Pension) Rules 1972, has been
sanctioned in favour of the petitioner and she is getting
regular monthly pension accordingly. Thereafter, on
retirement from service the petitioner became entitled to
full and final payment of gratuity within thirty days from the
date of retirement in terms of Section 4(3) of the Payment
of Gratuity Act, 1972. As the petitioner retired from service
on 30.06.2011 the respondents became liable to discharge
their obligation of causing full and final payment of gratuity
to the petitioner within the next thirty days i.e. positively
by 01.08.2011 and this is a mandate of the Payment of
Gratuity Act, 1972.
05. After retirement of the petitioner the petitioner
was paid an amount of Rs.1,81,230/- towards purported full
and final payment of gratuity. The said amount of
Rs.1,81,230/- was paid to the petitioner much beyond the
statutory period of 30 days from the date of retirement of
the petitioner. According to the petitioner Section-4 of the
Payment of Gratuity Act, 1972 mandates that the gratuity
shall be payable to an employee on the termination of his
employment after he has rendered continuous service for
not less than 5 years- (a) on his superannuation, or (b) on
his retirement or resignation or (c) on his death or
disablement due to accident or disease. Section 4(2) also
provides as to how the amount of gratuity payable to the
employee is to be determined. Section 4(3) stipulates that
amount of gratuity payable to the employee shall not
exceed the ceiling limit of Rs.10,00,000/-.
06. According to the petitioner the Payment of
Gratuity Act, 1972 was amended by the Payment of Gratuity
(Amendment) Act, 2010. The said amendment came into
force w.e.f. the date on which the notification regarding the
amendment was published in the Gazette of India,
Extraordinary Issue, Part-II, Section-3, Sub-Section (ii)
dated 24.05.2010. In view of the amendment of the
Payment of Gratuity Act, 1972 is Sub Section (3) of the
Section 4, the word Rs.3,50,000/- was substituted by the
word Rs.10,00,000/- thereby raising the ceiling limit of
Rs.3,50,000/- to Rs.10,00,000/-. In view of such
amendment which raised the ceiling limit of gratuity, the
petitioner became entitled to determination of gratuity
keeping in view the ceiling limit of Rs.10,00,000/-.
According to the petitioner at the time of retirement the last
basic pay of the petitioner was Rs.16,480/- and his DA was
Rs.4,042/-. As such, she was entitled to 2,53,000/- as
gratuity.
07. The petitioner submitted one representation
dated 20.08.2021 to the Headmaster, Madhuban(H.S.
School, Bishalgarh, Sepahijala) Tripura raising to pay
gratuity in view of the ceiling limit of Rs.10,00,000/- with
effect from 24.05.2010. But most arbitrarily her gratuity
was calculated and paid to her and as a result, full and final
payment of gratuity was not paid to the petitioner. Further
according to the petitioner the rest amount of gratuity
should be paid to the petitioner keeping in view of the
ceiling limit of Rs.10,00,000/- which came into effect from
24.05.2010. She was entitled to interest @ 7.5% per
annum. So finding no way the petitioner approached the
Hon'ble High Court by filing a case bearing
No.WP(C)114/2022. This High Court vide judgment dated
06.09.2022 dismissed the said writ petition. After that the
petitioner preferred an appeal bearing No.W.A.184 of 2022
against the judgment dated 06.09.2022 passed in
WP(C)114 of 2022. The Division Bench of this High Court
vide judgment and order dated 27.02.2024 disposed of the
writ appeal No.W.A. 184 of 2022 by giving liberty to the
petitioner to submit representation to the respondents with
all relevant documents and the Hon'ble High Court also
directed the respondents to dispose of the matter within a
period of four months. The petitioner made detailed
representation dated 29.04.2024 to the Director,
Directorate of School Education, Govt. of Tripura. It was
further submitted that other similarly situated persons have
been visited with a rejection orders issued by the
Competent Authority rejecting the claim of the petitioner.
The respondents did not take into consideration the ceiling
limit of gratuity payable to the State Govt. employees as
revised/enhanced by the State Government from time to
time to bring parity in between the Payment of Gratuity Act,
1972 and Rule 9 of TSCS (Revised Pension) Rules.
08. The Finance Department, Govt. of Tripura issued
one notification on 05.05.2009 and the said notification was
in respect to the provision regulating pension and other
pensionary benefits. By the said notification TSCS (Revised
Pension) Rules, 2009 was notified and the said Rules so far
as payment of gratuity is concerned, provides as under:
Length of Service Rate of Gratuity
Less than 1 year 2 times of emoluments
1 year or more but less 6 times of emoluments
than 5 year
5 year or more but less 12 times of emoluments
than 20 years
20 years or more ½ (half) of every
Completed 6 monthly period of qualifying
service subject to a maximum 30 times of
emoluments.
The term revised emoluments for the purpose of
calculation of DCRG shall mean the last pay, i.e., the pay in
the pay band plus the grade pay of the employees
concerned on the date of retirement.
09. The petitioner further submitted that the Rules,
2009 is in derogation of the letter and spirit of the Payment
of Gratuity Act, 1972 wherein the Act 1972, vide Section 4
(2) clearly provides that for every completed year of service
or part of thereof in excess of 6 months the employer shall
pay gratuity to an employee @ 15 days wage based on the
date of wages last drawn by the employee concerned, any
Rule cannot override and supplant the clear and
unambiguous mandate of Section 4(2) of the Act and
moreso, the said Rules has also supplanted the provisions of
Section 4(3) of the Payment of Gratuity Act, 1972 by fixing
the ceiling limit which is below the ceiling limit laid down by
the Section 4(3) of the Act. In determining the amount of
gratuity payable to the petitioner, in view of the provision of
Rule 8 of Tripura State Civil Service Revised (Pension)
Rules, 2009, it is provided that qualifying service of 33
years shall be taken into account for determining gratuity,
the total length of service of the petitioner was not taken
into consideration and it was against the mandate of Section
4(3) of the Payment of Gratuity Act, 1972.
10. The petitioner further submitted that one Tarun
Kr. Sinha filed a Writ Petition bearing No.WP(C)No.204 of
2020. In the said writ petition the petitioner contended that
on retirement from service he ought to have been paid
gratuity taking into consideration the enhanced ceiling limit
of gratuity i.e. Rs.20,00,000/- which was introduced by the
amendment of Section 4(3) of the Payment of Gratuity Act,
1972 w.e.f. 29.03.2018. But his gratuity was paid in terms
of Rule 9 of Tripura State Civil Service (Revised Pension)
Rules, 2017 on the basis of ceiling limit of Rs.10,00,000/-
provided by Rule 9 of Tripura State Civil Service (Revised
Pension) Rules, 2017. According to the petitioner by the
order dated 27.01.2021, Hon'ble the High Court disposed of
the Writ Petition No.204/2020 and in the said
judgment/order this High Court held that the State
Government shall revisit Rule 9 of the Tripura State Civil
Services (Revised Pension) Rules, 2017 and to take proper
decision enhancing maximum limit of gratuity as has been
done by the Central Govt. by notification dated 29.03.2018
and this High Court also expected that parity in payment of
gratuity be maintained as has been earlier maintained by
the State Govt. in terms of Section 4(3) of the Payment of
Gratuity Act, 1972 and until such exercise is done the
petitioner shall be paid gratuity for the time being on the
basis of maximum limit of Rs.10,00,000/-.
11. The Learned Single Judge at the time of disposal
of the said case relied upon the judgment dated 13.02.2020
passed in connection with WP(C)No.1054/2019 (Sri
Bhupati Debnath vs. The State of Tripura & Ors.),
judgment/order dated 20.02.2020 passed in connection
with WP(C)1209/2019 (Lal Zakim Rokhum vs. Tripura
Road Transport Corporation and Ors.) and the judgment
and order dated 13.02.2020 passed in connection with
WP(C)1057 of 2019 (Smt. Mamata Singha Roy vs. State
of Tripura and Another) and it was also observed that the
revised ceiling limit of gratuity effected by the Payment of
Gratuity Act would apply to all the establishment
irrespective of whether they are controlled or governed by
the State or Central Govt. as the appropriate Governing
body. Finally the petitioner took the plea that the petitioner
has been deprived of the actual entitlement of gratuity by
invoking arbitrary ceiling limit of gratuity of Rs.4,00,000/-
and he is entitled to a total gratuity of Rs.8,64,790/- as per
the provisions of the Payment of Gratuity Act, 1972 with
interest @ 9% per annum. It was further submitted that as
per notification dated 08.04.1997 issued by the Joint
Secretary, Government of Tripura, Finance Department the
petitioner is also entitled to the statutory interest in case of
delay. Hence, the petitioner has filed the writ petition.
12. The state-respondents have contested the case
by filing the counter-affidavit. In para No.9 and 10 the
state-respondents have mentioned the following facts:
"9. That, in regard to the statement made in paragraphs
NO.2 to 11 of the writ petition, it is stated that by
judgment & order dated 27.02.2024 passed in W/A 184
of 2022, the Hon'ble High Court of Tripura disposed the
writ appeal with a liberty to the appellants to represent
the matter before the respondents with all relevant
documents, if so advised. Accordingly the writ petitioner
has submitted representation on 29.04.2024.
On Scrutiny of the relevant facts and documents, it
appears that the writ petitioner Smt. Sabita Chanda, At
has joined in service on 02.04.1990 at Amtali H.S. School
and retired from Madhuban (K) H.S. School, Agartala on
30.06.2011 with 3(three) months extension of service
vide DSE order No.F.1(3-3)-SE-E (NG)/2010(L-8)/9809
dated 15.03.2011.
The writ petitioner retired from service on
superannuation on 30.06.2011 after rendering her
service 21 years 02 months and 29 days. At the time of
retirement the petitioners last Basic pay was Rs.16,840/-
which was later on re-fixed by A.G. Tripura after inclusion
of training incentive w.e.f. 15.04.2019 to 30.06.2011 vide
letter No.F.3(C-3)-SE-E(GL)/2010 dated 30.09.2011 at
Rs.17,260/- and DCRG was calculated as below: last
Basic pay Rs.17,260 x twice of the service length ÷ 4=
DCRG (Rs.1,81,230/0) as per Finance Department
Notification NO.8(3)-FIN(G)/04 dated 05th May 2009.
The petitioner retired on 30.06.2011 and paid 75%
gratuity i.e. Rs.132615/- through bill No.51 dated
01.07.2011 by the DDO, Madhuban (K) H.S. School and
later on the service book of the petitioner was sent to
A.G. Tripura for finalization. AG Tripura sanctioned
Rs.48,65/- for final payment. So the question of delay in
payment does not arise.
As per notification of the Finance Department dated
05.05.2009 it is stated that while calculating DCRG the
emoluments means last pay in the Pay Band plus Grade
pay of the employees concerned on the date of
retirement/death.
As per TSCS (Revised pension) rules, 2017 the ceiling
limit of DCRG has been enhanced from Rs.4,00,000/- to
Rs.10,00,000/- w.e.f. 01.04.2017.
As the writ petitioner was retired from service on
30.06.2011 which prior to the date 01.04.2017 and as
such the writ petitioner is not entitled to get the DCRG
amount of Rs.10,00,000/- as claimed for.
Considering all the above facts, it is found that the
gratuity of Smt. Chanda, A/T was paid at the right time
and in accordance with the correct rules, there was not
mistake in it as per Tripura State Civil Service (Revised
Pension) Rules, 2017 vide Notification No.F.8(3)-
FIN(G)/2017 dated 11th July, 2017.
10. That, in regard to the statement made in paragraphs
12 to 15 of the writ petition, it is stated that the writ
petitioner retired from service on superannuation on
30.06.2011 after rendering 21 years 02 months and 29
days of service. At the time of retirement the petitioners
last Basic pay was Rs.16,840/- which was later on re-
fixed by A.G. Tripura after inclusion of training incentive
w.e.f. 15.04.2009 to 30.06.2011 vide letter No.F.3(C-3)-
SE-E(GL)/2010 dated 30.09.2011 at Rs.17,260/- and
DCRG was calculated as below: last Basic pay Rs.17,260 x
twice of the service length ÷ 4=DCRG (Rs.1,81,230/-) AG
Tripura sanctioned Rs.48,615/- for final payment as per
Finance Department Notification No.8(3)-FIN(G)/04
dated 05th May 2009."
Further the state-respondents have averred in
para No.18-24 which are as follows:
"18. That, in regard to the statement made in paragraphs
30 to 32 of the writ petition, it is stated that the
petitioner has joined in service on 02-04-1990 at Amtali
H.S. School and retired from Madhuban(K) H.S School,
Agartala on 30-06-2011 with 3(three) months extension
of service vide DSE order No.F.1(3-3)-SE-E (NG)/2010(L-
8)/9809 dated. 15.03.2011 after rendering her service 21
years 02 months and 29 days. At the time of retirement
the petitioners last Basic pay was Rs. 16,840/- which was
later on re-fixed by A.G Tripura after inclusion of training
incentive w.e.f. 15-04-2009 to 30-06-2011 vide letter
No.F.3(C-3)-SE-E(GL)/2010 dated 30-09-2011 at Rs.
17,260/- and DCRG was calculated as below:- last Basic
pay Rs. 17,260 X twice of the service length + 4 =
DCRG(Rs. 1,81,230/-) AG Tripura sanctioned Rs.
48,615/- for final payment as per Finance Department
Notification No.8(3)-FIN(G)/04 dated. 05th May 2009.
19. That, in regard to the statement made in paragraphs
33 & 34 of the writ petition, it is stated that the
Department followed the State Policy and State Pension
Rules as per Tripura State Civil Service (Revised Pension)
Rules, 2017 vide Notification No.F.8(3)-FIN(G)/2017
dated 11th July, 2017.
20. That, in regard to the statement made in paragraph
35 of the writ petition, it is stated that the petitioner was
paid at the right time and in accordance with the correct
rules, there was not mistake in it as per Tripura State
Civil Service (Revised Pension) Rules, 2017 vide
Notification No.F.8(3)-FIN(G)/2017 dated 11th July,
2017.
21. That, in regard to the statement made in paragraph
36 of the writ petition, it is stated that as per provision 8
of Tripura State Civil Services (Revised Pension) Rules,
2009 the petitioner is entitled DCRG Amounting to
Rs.4,00,000/-.
19. That, in regard to the statement made in paragraphs
33 & 34 of the writ petition, it is stated that the
Department followed the State Policy and State Pension
Rules as per Tripura State Civil Service (Revised Pension)
Rules, 2017 vide Notification No.F.8(3)-FIN(G)/2017
dated 11th July, 2017.
20. That, in regard to the statement made in paragraph
35 of the writ petition, it is stated that the petitioner was
paid at the right time and in accordance with the correct
rules, there was not mistake in it as per Tripura State
Civil Service (Revised Pension) Rules, 2017 vide
Notification No.F.8(3)-FIN(G)/2017 dated 11th July,
2017.
21. That, in regard to the statement made in paragraph
36 of the writ petition, it is stated that as per provision 8
of Tripura State Civil Services (Revised Pension) Rules,
2009 the petitioner is entitled DCRG Amounting to
Rs.4,00,000/-.
22. That, in regard to the statement made in paragraph
37 of the writ petition, it is stated that as per TSCS
(Revised pension) rules, 2017 the ceiling limit of DCRG
has been enhanced from Rs. 4,00,000/- to Rs.
10,00,000/-w.e.f. 01-04-2017.
23. That, in regard to the statement made in paragraph
38 of the writ petition, it is stated that the petitioner was
paid at the right time and in accordance with the correct
rules, there was not mistake in it, as per Tripura State
Civil Service (Revised Pension) Rules, 2017 vide
Notification No.F.8(3)-FIN(G)/2017 dated 11th July,
2017 hence there is no question of interest.
24. That, in regard to the statement made in paragraph
39 to 42 of the writ petition, it is stated that the writ
petitioner retired from service on superannuation on 30-
06-2011 after rendering her service of 21 years 02
months and 29 days. At the time of retirement the
petitioners last Basic pay was Rs. 16,840/- which was
later on re-fixed by A.G Tripura after inclusion of training
incentive w.e.f. 15-04-2009 to 30-06-2011 vide letter
No.F.3(C-3)-SE-E(GL)/2010 dated 30-09-2011 at Rs.
17,260/- and DCRG was calculated as below:- last Basic
pay Rs. 17,260 X twice of the service length + 4 = DCRG
(Rs. 1,81,230/-) AG Tripura sanctioned Rs. 48,615/- for
final payment as per Finance Department Notification
No.8(3)-FIN(G)/04 dated 05th May 2009. Accordingly the
petitioner was informed vide letter No.3(C-63)SE-
E(GL)/2016 dated 15.07.2024."
13. The respondents No.4 and 5 also have submitted
separate counter-affidavit. In para No.8-12 the said
respondents No.4 an 5 in their counter-affidavit have made
the following assertions:
"8. That, with respect to Paragraphs No.9 to 16, I say
that the authority of Gratuity subject to ceiling limit of
Rs.4,00,000 as per ROP'2009 of Notification vide
No.F.8(3)-FIN(G)/09, dated 05.05.2009 was issued by
the Finance Department, Govt. of Tripura, and the
Answering Respondents have calculated taking into
account the Basic pay only for the purpose of calculation
of the Gratuity as per rules as per ROP's Notification,
Amendment etc. issued by the Finance Department, Govt.
of Tripura from time to time.
9. That, with respect to Paragraphs No.19, I say that the
Gratuity has to calculated i.e. Rs.29,970x66/4=
Rs.4,94,505/- subject to maximum Rs.4,00,000/- as per
rules of Notification, Amendment etc. issued by the
Finance Department, Govt. of Tripura.
10. That, with respect to Paragraph No.18, I say that the
Hon'ble High Court of Tripura, Agartala vide common
Judgment and Order dated 06.09.2022 in WP(C) 106 of
2022, WP(C)109 of 2022, WP(C)111 of 2022, WP(C)112
of 2022, WP(C)113 of 2022, WP(C) 114 of 2022,
WP(C)115 of 2022 and WP(C)116 of 2022, opined that
the writ petitions merit no consideration and accordingly
dismissed the demand of final payment of Gratuity of the
petitioner.
11. That, with respect to Paragraphs No.20 to 21, I say
that the ceiling limit of Gratuity Rs.10,00,000/- is
admissible for those who have retired/died on or after
01.04.2017 as per ROP'2017, but the petitioner was
retired from his service on 30.04.2015 under ROP'2009
and for which the ceiling limit of Gratuity was
Rs.4,00,000/-.
12. That, with respect to Paragraph No.22, I say that as
per Notification issued by the Finance Department vide
No.F.8(13)/Fin(G)/86, dated 08.04.1997 hereby
mentioned that interest on gratuity shall be payable @
7% per annum for period from beyond 3 months upto
one year."
Finally the respondents by their counter-affidavit
prayed for dismissal of this writ petition with the plea that
this present writ petition is not maintainable and urged for
dismissal of this writ petition.
14. The crux question to be decided in this writ
petition as to whether the state government employees are
entitled to get the benefit of the ceiling limit as prescribed
under the Payment of Gratuity Act in respect of payment of
gratuity on their retirement. Admittedly the present
petitioner is a retired government employee. He retired
from service on superannuation on 30.06.2011 and this
present writ petition is the 3rd round litigation because
earlier this present petitioner filed another writ petition
before this High Court bearing No.WP(C)114 of 2022 which
was dismissed by judgment dated 06.09.2022 and after that
the present petitioner preferred appeal which was also
disposed of with a direction when the respondents to
consider the representation of the petitioner within a period
of four months and after that the petitioner submitted
representation on 29.04.2024 to the respective authority
but as the same was not considered so again the present
petitioner has been compelled to file the present writ
petition.
15. When the present petitioner was retired from
service that time Tripura Civil Services Revised Pension
Rules, 2009 (in short Pension Rules, 2009) was in existence.
The petitioner was a Post Graduate Teacher and definitely it
was under the control of State Government. In course of
hearing Learned Senior Counsel Mr. P. Roy Barman for the
petitioner submitted that the petitioner should be entitled to
get the amount of gratuity to Rs.10,00,000/- which was
made in pursuance of the Payment of Gratuity
(Amendment) Act, 2010 under sub-Section 3 of Section-4.
Learned Senior Counsel further submitted that previously
Learned Single Judge of this court in connection with WP(C)
No.204 of 2020 directed the State Government to revisit the
Rule-9 of ROP Rules, 2017 with further direction to the state
government to bring parity in determining the gratuity at
par with the ceiling limit, prescribed under the Payment of
Gratuity Act.
16. On the other hand, Learned Addl. G.A. Mr. D.
Sharma appearing on behalf of the state-respondents
submitted that the case of the petitioner is not covered by
Payment of Gratuity Act, 1972 as the petitioner is not
covered as an 'employee' as per the definition of 'employee'
as mentioned in the Payment of Gratuity Act. As such the
present petitioner is not entitled to get the ceiling limit of
Rs.10,00,000/- as made by the Payment of Gratuity
(Amendment) Act, 2010 in sub-section 3 of Section-4. Now
for the sake of convenience, I would like to refer herein
below the definition of employees as mentioned in Section
2(e) of the Payment of Gratuity Act which reads as under:
"2[(e) "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 applied, 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;]"
17. On perusal of the said definition it is clear that
the law makers excluded the employees of state
government as well as the central government from the
applicability of the Payment of Gratuity Act, 1972 in case
their payment of gratuity is regulated or governed by the
separate Act or Rules. Here in the State of Tripura and since
the petitioner was a state government employee and there
is no such evidence on record that the state government
has adopted the relevant provisions of the Payment of
Gratuity Act. As such, it appears that the status of the
present petitioner as an 'employee' of the State
Government is separated from the definition of 'employees'
like factory, mine, oilfield, plantation, port, railway company
or shop or other establishment in respect of payment of
gratuity.
18. In course of hearing of argument it was fairly
submitted that the petitioner was paid gratuity as per the
Pension Rules of 2009 by which he was governed and during
the service tenure the petitioner was governed by the
Tripura State Civil Services (Revised) Pension Rules, 2009
(in short Pension Rules, 2009) which makes specific
provision to regulate payment of gratuity to the employees
of the state government and Rule-8 of the Pension Rules
prescribes ceiling limit of 4,00,000/- for the employees
proceeded for superannuation/retirement w.e.f. 01.01.2009.
As already stated the petitioner was retired from service on
superannuation on 30.06.2011. Now for the sake of
convenience, I would like to mention here the relevant
provision of Rule-8 of the Tripura State Civil Service Revised
(Pension) Rules, 2009 which reads as follows:
"8.DEATH-CUM-RETIREMENT GRATUITY:
The existing ceiling limit of Death-cum-Retirement
Gratuity is enhanced from Rs.2.00 lakhs to 4.00
lakhs for employees proceeded on
superannuation/retirement with effect from
01.01.2009. The other conditions of the existing
formula of computation of DCRG amount will
remain unchanged.
In case of death in harness the following table
shall continue to be followed-
Length of Service Rate of Gratuity
Less than 1 year 2 times of emoluments
1 year or more but less 6 times of emoluments
than 5 year
5 year or more but less 12 times of emoluments
than 20 years
20 years or more ½ (half) of every
Completed 6 monthly period of qualifying
service subject to a maximum 30 times of
emoluments.
19. Since there is no evidence on record that the
State of Tripura has adopted the Payment of Gratuity
(Amendment) Act, 2010 specifically the provision of sub-
section-3 of Section 4 as such the petitioner being an
employee of the state government would be entitled to get
the benefit of gratuity as per Pension Rules, 2009 as the
petitioner retired from service while the said pension rule
was in force.
20. The state-respondents already in their counter-
affidavit stated that the petitioner was given an amount of
Rs.1,81,230/- as gratuity following the notification of the
Finance Department dated 05.05.2009 and by the said
notification bearing No.F.8(3)-FIN(G)/09 the Finance
Department revised the pension and other pensionary
benefits of the state government employees enhancing the
ceiling limit of death cum retirement gratuity from
Rs.2,00,000/- to Rs.4,00,000/- and at that material period
when the petitioner was retired from government service on
superannuation on 30.06.2011 the said ceiling limit of
Death-Cum-Retirement-Gratuity was in force. So it appears
to this court that the state-respondents have not committed
any error in making payment of gratuity to the present
petitioner to the extent of ceiling limit of Rs.4,00,000/-.
Now we are to see the observation of the judgment made
by Learned Single Judge in connection with WP(C)204 of
2020 as advanced by Learned Senior Counsel Mr. P. Roy
Barman in course of argument that by the said judgment
the state-respondents were directed to consider the matter
of payment of gratuity bringing parity with the Central Act
in respect of determination of ceiling limit of gratuity. I have
also gone through the said judgment. For the sake of
convenience I would like to refer herein below the relevant
paragraphs of the judgment which runs as follows:
"9. Having appreciated the submissions of the
learned counsel appearing for the parties, an
apparent conflict between Rule-9 of the Tripura
State Civil Services (Revised Pension) Rules, 2017
and Section-4(3) of the Payment of Gratuity Act
has emerged. Since, the Central Government has
enhanced the maximum limit of gratuity to
Rs.20,00,000/- by the notification as stated above
and it is noticed that in the past the state has
followed the maximum limit for payment of
gratuity coterminus to what had been determined
by the Central Government, there is a pressing
necessity to revisit the said provision. In view of
the definition of "employee" as provided in
Payment of Gratuity Act and for separation of
power [6] between the Central Government and
the State Government in respect of the
employment and other related areas regarding the
state government employees, no doubt that the
state government has the authority to determine
the pay and allowances and other benefits of the
state government employees. But Payment of
Gratuity Act, 1972 being a piece of central
legislation has its own sway. Therefore, the state
government is not expected to take a contrary
stand, even though, the notification determining
the maximum limit of the payment of gratuity Act
has been issued by the Central Government
pursuant to the power conferred by Sub-Section-3
of Section-4 of the Payment of Gratuity Act, 1972.
10. A former notification for amendment by the
state government would dispel the confusion that
is reigning for the time being. In defining
„employee‟, it has been provided that the central
government and the state government employees
have been excluded from the definition of
employee for purpose of the Payment of Gratuity
Act, 1972 if their payment of gratuity is regulated
by the separate Act or the Rules. Those employees
who are working under the central government or
the state government would stand excluded from
the definition of employee [see Section-2(1) of the
Payment of Gratuity Act, 1972], in the event if
their payment of gratuity is governed by any other
Act or by any Rules providing for payment of
gratuity. In the present case, the state government
employees are governed by Tripura State Civil
Services (Revised Pension) Rules, 2017. As such,
the petitioner may not be treated as „employee‟
for general purpose of applying the provisions of
the Payment of Gratuity Act, 1972."
21. On perusal of the said judgment of the Learned
Single Judge i.e. another Coordinate Bench of this High
Court it appears that by said judgment Learned Single
Judge did not issue any direction to the state-respondents
to amend the Rule-9 of the Tripura State Civil Services
(Revised Pension) Rules, 2017 rather asked the Govt. to
revisit the Rule-9 to bring parity. Until and unless the said
rule is amended or there is any specific amendment in the
Payment of Gratuity Act specifically the definition of Section
2(e) i.e. 'employees' it appears that it would be difficult on
the part of the state-respondents to consider the claim of
the present petitioner. From the Act of 1972 it is clear that
the said act was enacted to provide payment of gratuity to
the employees engaged in factories, mines, oilfield,
plantation, port, railway companies, shop or other
establishment and for the matters connected therewith and
incidental there to.
22. After going through the Payment of Gratuity Act
it appears that in Section 1(3) of the said Act it was
mentioned the name of the 'organization' where the act
would apply. Further Section 2(a) defines 'appropriate
government', Section 2(d) defines 'controlling authority',
Section 2(f) defined 'employer', Section 2(g) defines
'factory', Section 2(i) defines 'major port', Section 2(j)
defines 'mine', Section 2(k) defines 'notification', Section
2(l) defines 'oilfield', Section 2 (m) defines 'plantation',
Section 2 (n) defines 'port' and Section 2(p) defines 'railway
company'. From the definition of the aforesaid provisions it
is crystal clear the legislature at the time of making of laws
clearly intended to apply and extended the benefit of to the
employees of the aforesaid organization only including the
employees of the establishment belonging to or under the
control of central government or the state government but
excluded the person who holds post under the central
government or the state government and are governed by
other act or by any rules providing for payment of gratuity
have not been brought within the ambit of Payment of
Gratuity Act, 1972.
23. Further, for determining the maximum ceiling
limit of gratuity to an employee it is entirely rests upon the
policy matter of the Government and until and unless the
rule is amended by the state or any amendment is made in
the original Central Act at the instance of the State
Government the maximum limit of gratuity of amounting to
Rs.10,00,000/- as per Payment of Gratuity(Amendment)
Act, 2010 cannot be directed to be given to the petitioner by
the State-respondents. So the matter requires decision of
the State Government. There is no dispute on record that
the present petitioner is governed by Rule-8 of the Pension
Rules of 2009 as an employee of the state government in
respect of payment of gratuity.
24. Situated thus, at this juncture invoking the
jurisdiction under Article 226 of the Constitution of India,
this court does not find any scope to direct the State
Government to make any policy decision in this regard. But
it is open for the state government to consider the matter if
the government so desires. In the light of the discussions
made above, the present writ petition bears no merit and
accordingly the same stands dismissed. No order is passed
as to costs. However, the present petitioner may approach
to the State department to consider his grievance if he is so
advised. Further it is clarified that if any interest or anything
remains pending in that case the petitioner shall be at
liberty to claim for interest in view of the notification of vide
No.F.8(13)Fin(G)/86 dated 08.04.1997 of the Finance
Department to the appropriate authority and in that case
the respective authority shall consider the matter of interest
if it is found that the petitioner is actually entitled to get the
same.
With this observation, this writ petition stands
disposed of.
Pending application, if any, stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA 23:42:46 +05'30'
Moumita
