Tripura High Court
Sri Sekhar Bhowmik vs The State Of Tripura on 27 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.800 of 2024
Sri Sekhar Bhowmik,
Son of late Haridhan Bhowmik,
Resident of Joynagar,
H.G.B. Road, near JPC Club,
P.O. Agartala- 799 001,
District: West Tripura
----Petitioner (s)
Versus
1. The State of Tripura ,
To be represented by the Secretary/Principal Secretary,
GA (P&T) Department, Government of Tripura,
New Secretariat Building, New Capital Complex,
Agartala, West Tripura, PIN: 799 010
2. The Principal Secretary,
Animal Resource Development Department,
Government of Tripura, Gurkhabasti,
P.O. Kunjaban, West Tripura,
PIN: 799 006
3. The Secretary,
Department of Finance, Government of Tripura,
New Secretariat Building, New Capital Complex,
Agartala, West Tripura, PIN:799 010
4. The Director,
Directorate for Welfare of Schedule Caste,
Government of Tripura, Gurkhabasti,
Agartala, West Tripura, PIN: 799 010
5. The Accountant General,
Office of the Accountant General (A & E),
Agartala, Tripura, PIN: 799 006
6. 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. Shaktimoy Chakraborty,
Advocate General
Ms. Pinki Chakraborty, Adv.
Mr. Pradyumna Gautam, Adv.
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 40 years of service as
rendered by the Petitioner and the last Basic pay
of Rs.29,970/- and his Dearness Allowance of
Rs.22,180/- 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) Make the rules absolute.
(v) Call for records.
(vi) 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 Advocate General Mr. S. M.
Chakraborty assisted by Ms. P. Chakraborty along with Mr.
P. Gautam, Learned Sr. G.A. appearing for the State-
respondents and also heard Learned Senior counsel Mr. D.
Bhattacharya assisted by Mr. S. Saha, Learned counsel
appearing for the respondents No.5 and 6.
03. The gist of the petition filed by the petitioner is
that the petitioner had joined service on 18.03.1975 in the
post of A.H. Assistant, Department of Animal Resource
Department. By memo dated 24.06.1988 issued by the
Secretary, Government of Tripura, Appointment & Services
Department on recommendation of the TPSC, the petitioner
was offered a purely temporary post of Junior Grade
Stenographer of Tripura Government Stenographers'
Service (Class-III, Non-Gazetted) under the Govt. of Tripura
on a pay of Rs.560-1300 on terms and conditions stated in
the memo. During service the petitioner was selected for
the post of Junior Grade Stenographer as per
recommendation of the TPSC and in view of such selection,
the petitioner accepted the offer of appointment vide the
memo dated 24.06.1988 and joined on 09.09.1988 in the
post of Junior Grade Stenographer of Tripura Government
Stenographers' Service (Class-III, Non-Gazetted) under the
Govt. of Tripura. After that the petitioner got promotion in
the post of P.A.-I. On attaining the age of superannuation,
the petitioner retired from service w.e.f. 30.04.2015. At the
time of retirement, the last basic pay of the petitioner was
Rs.29,970/- and D.A. was Rs.22,180/- and the petitioner
was holding the post of P.A.-I, having in his credit about 40
years of service. After his retirement regular monthly
pension under CCS(Pension) Rules 1972 has been
sanctioned in favour of the petitioner and he is getting
regular monthly pension accordingly. On retirement from
service, the petitioner became entitled to full and final
payment of gratuity within 30 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
30.04.2015, so the petitioner became liable to discharge
their obligation of causing full and final payment of gratuity
to the petitioner within the next 30 days i.e. positively by
01.06.2015 as per Payment of Gratuity Act, 1972. The
Senior Accounts Officer/AAG, office of the Accountant
General (A & E), Govt. of Tripura, Agartala vide memo
dated 11.12.2015 accorded sanction for payment of
Rs.3,00,000/- towards partial payment of gratuity. On
retirement the petitioner was paid an amount of
Rs.4,00,000/- towards purported full and final payment of
gratuity. The said amount of Rs.3,00,000/- was paid to the
petitioner much beyond the statutory period of 30 days
from the date of retirement of the petitioner and later on,
the remaining amount of Rs.1,00,000/- was paid to the
petitioner vide memo dated 11.12.2015.
04. 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/-. 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/-.
05. According to the petitioner at the time of
retirement the last basic pay of the petitioner was
Rs.29,970/- and his DA was Rs.22,180/-. As such, he was
entitled to 12,03,460/- as gratuity. The petitioner submitted
one representation dated 11.08.2021 to the Director, S.C.
Welfare, Govt. of 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 his gratuity was calculated
and paid to him and as a result, full and final payment of
gratuity was not caused 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. He
was entitled to interest @ 9% per annum. So finding no way
the petitioner approached the Hon'ble High Court by filing a
case bearing No.WP(C)116/2022. 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.182 of 2022 against the judgment dated
06.09.2022 passed in WP(C)116 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. 182 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 Principal Secretary, Welfare of Schedule
Caste and the Director, Directorate of Welfare of Schedule
Caste. 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.
06. 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.
07. 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.
08. 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/-.
09. 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.
10. The state-respondents have contested the case
by filing the counter-affidavit. In para No.6-11 the state-
respondents have mentioned the following facts:
"6. That, with respect to paragraphs-12 to 15 of the writ
petition, it is humble submitted that the petitioner was a
member of Tripura Government Stenographers' Service.
The petitioner's pension and gratuity are covered under
the Tripura State Civil Service Rules, 2009 and also CCS
(Pension Rules), 1972 as adopted by the State of Tripura.
The petitioner retired from the Govt. Service in the year
2015. Therefore, his pension and gratuity matter are
bound to be covered under the Notification No.F.8(3)-
FIN(G)/09 dated 05.05.2009. Hence the petitioner's
claim cannot be entertained as it is beyond the purview of
the relevant financial rules which was in for during that
time of his superannuation.
7. That, with respect to paragraphs-16 to 18 of the writ
petition, it is humble submitted that the petitioner's
pension and gratuity are covered under the Tripura State
Civil Service Rules, 2009 and also CCS (Pension Rules),
1972 as adopted by the State of Tripura. The petitioner
retired from the Govt. Service in the year 2015.
Therefore, his pension and gratuity matter are covered
under the Notification No.F.8(3)-FIN(G)/09 dated
05.05.2009.
8. That, with respect to paragraphs-19 to 22 of the writ
petition, it is humbly submitted that the contention of the
petitioner is strongly denied. The petitioner's pension and
gratuity are covered under the Tripura State Civil Service
Rules, 2009 and also CCS (Pension Rules), 1972 as
adopted by the State of Tripura. The Finance Department
vide their Notification No.F.8(3)-FIN(G)/09 dated
05.05.2009 revised the pension and other pensioner
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/-. In the instant case the
petitioner was retired from Government service on
superannuation on 30.04.2015. At that material period
the said ceiling limit of death-cum-retirement gratuity
was in force. Therefore, petitioner was given an amount
of Rs.4,00,000/- as gratuity following the Notification of
the Finance Department dated 5th May, 2009.
9. That, with respect to paragraphs-23 to 27 of the writ
petition, it is humbly submitted that it is a matter of
records. Hence, the Answering Respondent has no
comments.
10. That, with respect to paragraphs-29 to 30 of the writ
petition, it is humbly submitted that these paras are fully
related to the Finance Department since, it is related to
implementation of payment of Gratuity Act, 1972. In the
said Para, the main contention of the petitioner is that
the revision of provision regulating pension and other
pensionary benefits is in derogation of the letter and
spirit of the Payment of Gratuity Act, 1972.
11. That, with respect to paragraphs-30 to 39 of the writ
petition, it is humbly submitted that no Government
employees had been given Rs.20,00,000/- after
retirement onusperannuation as death-cum-retirement
gratuity. Therefore, the petitioner, being a State
Government Employee is not entitled to get retirement
gratuity above the other retired employees of the State
Government. It is also to mention that as per section 2(e)
of the definition of payment of gratuity act, 1972
provides the following "employee" means any person
(other than an apprentice) who is employed for wages
whether the terms of such employment are expressed or
implied, in any kind of work manual or otherwise, in or in
connection with the work of a factory, mine, oilfield,
plantation but does not include any such post under the
Central Government or a State Government and is
governed by any other act by any rules providing for
payment of gratuity.
In the instant case, the petitioner belonged to
Tripura Government Stenographers' service i.e., under
the State Government, therefore, payment gratuity act,
1972 is not applicable to him. The petitioner's pension
and gratuity are covered under the Tripura State Civil
Service Rules, 2009 and also CCS (Pension Rules), 1972
as adopted by the State of Tripura."
11. The respondents No.5 and 6 also have submitted
separate counter-affidavit. In para No.8-12 to the counter-
affidavit the said respondents No.5 an 6 in have made the
following assertions:
"8. That, with respect to Paragraphs No.8 to 15, 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.16 and 17, 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 under ROP'2009
and for which the ceiling limit of Gratuity was
Rs.4,00,000/-.
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.19 to 20, 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.21, 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.
12. 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 30.04.2015 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)116 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.
13. 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 member of Tripura Government
Stenographer's Service 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.
14. On the other hand, Learned Advocate General
Mr. S. M. Chakraborty assisted by Ms. P. Chakraborty,
Learned Counsel along with Mr. P. Gautam, Learned Sr.
G.A. 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;]"
15. 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 provision 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.
16. 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 30.04.2015. 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.
17. 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 rules
was in force.
17. The state-respondents already in their counter-
affidavit stated that the petitioner was given an amount of
Rs.4,00,000/- 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 30.04.2015 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."
18. 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.
19. 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.
20. 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.
21. 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 02:30:46 +05'30'
Moumita
