Tripura High Court
Sri Bhaskar Bhowmik vs The State Of Tripura on 27 March, 2025
HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.799 of 2024
Sri Bhaskar 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,
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. Mangal Debbarma,
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 40 years of service as
rendered by the Petitioner and the last Basic pay
of Rs.31,340/- and his Dearness Allowance of
Rs.27,580/- 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 Addl. G.A. Mr. M. Debbarma
appearing for the State-respondents and also heard Learned
counsel Mr. S. Saha 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 21.07.1981 in the
post Assistant Teacher on 21.07.1981. Later on, the
petitioner got promotion in the post of Deputy Inspector of
Schools on 31.10.2008. On attaining the age of
superannuation, the petitioner retired from service w.e.f.
31.01.2017. At the time of retirement, the last basic pay of
the petitioner was Rs.31,340/- and D.A. was Rs.27,580/-
and petitioner was holding the post of Deputy Inspector of
Schools, Education Inspectorate, Sadar-A Kunjaban,
Agartala having in his credit about 36 years of service.
Thereafter, the Senior Accounts Officer/AAG, office of the
Accountant General (A & E), Govt. of Tripura on 07.04.2017
sanctioned to the petitioner an amount of Rs.3,00,000/- as
provisional DCRG. After 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. After retirement from his 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 31.01.2017, the
respondents became liable to discharge their obligation of
causing full and final payment of gratuity to the petitioner
within next 30 days i.e positively by 01.03.201 and this is a
mandate of the Payment of Gratuity Act, 1972.
04. At the time of his 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.4,00,000/-
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.
05. 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.31,340/- and his DA was Rs.27,580/-. As such, he was
entitled to 12,23,720/- as gratuity. The petitioner submitted
one representation dated 11.08.2021 and 16.08.2021 to the
Director, Department of Elementary Education, 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. The petitioner further submitted another
representation dated 03.09.2021 to the Director,
Department of Elementary Education, Govt. of Tripura
requesting the concerned authority to intimate the
petitioner about the action taken on the prayer submitted
by the petitioner on 11.08.2021. 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)111/2022. 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.183 of 2022 against the judgment dated
06.09.2022 passed in WP(C)111 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. 183 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
06.05.2024 to the Director, Directorate of Elementary
Education.
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.5-11 the state-
respondents have mentioned the following facts:
"That, in reply to para 1 to 8 of the writ petition,I say
that as per available records, it is found that the
petitioner was appointed as Assistant
Teacher(Middle/High Stage School) which reflected in the
memo dated 15/09/1981 that the petitionerjoined in the
service on 21/07/1981 and retired from Government
Service on 31 January, 2017. Accordingly, the amount of
Gratuity @Rs. 4.00 lakhshad been sanctioned in favour of
the petitioner as per the TSCS (Revised Pension) Rules,
2009 issued by Finance Department vide Memo dated 5th
May, 2009 (Annexure-7 to the writ petition)which the
gratuity ceiling limit was given with effect from on or
after1st January, 2006onwards and this ceiling limit of
gratuity was enhanced to @Rs. 10.00 lakhs to those
employees who were retired from service on or after 1"
April 2017 as per the TSCS (Revised Pension) Rules,
2017. Since the enhancement of gratuity was given effect
from the date who retired from service on or after 1 April,
2017, but unfortunately the petitioner was retired from
service on 31st January, 2017, just three months ahead
from the date enhancement of gratuity from Rs. 4.00
lakhs to 10.00 lakhs a therefore, he has not allowed to
get enhanced ceiling limit gratuity of Rs. 10.00 lakhs.
s
That, in reply to para 9 to 29 of the writ petition, I say
that after retirement of the petitioner, the administrative
department had scrutinized his entire service records and
found that his basic last pay salary is Rs. 31,340/- only
and completed his Service about 35 years 07 months,
accordingly, as entitled as per law, 88% Dearness
Allowance was allowed at the time of his retirement by
the administrative department and also3/4th of death-
cum-retirement gratuity (DCRG) was sanctioned in favour
of the petitioner within the period of six days calculating
the prevailing ceiling limit of the gratuity i.e., @Rs. 4.00
lakhs as per TSCS (Revised Pension) Rules, 2009 based
on his date of retirement on 31-01-2017. Accordingly,
after paying all pensionary benefits such as Gratuity,
Leave Salary etc., service book of the petitioner has been
sent to the office of the A/G, Tripura, proposing granting
of his pension. Thereafter, the remaining 1/4th of
Gratuity has also been sanctioned on 07th April, 2022
through the A/G, Tripura and paid the entire ceiling
amount of gratuity to the petitioner. But the petitioner is
not entitled for enhanced gratuity amount of Rs. 10.00
lakhs due to non-covering under the provision of the
TSCS (Revised Pension) Rules, 2017 and therefore, the
enhanced ceiling limit of gratuity has not been granted in
favour of the petitioner as being not covered under the
purview of the TSCS (Revised Pension) Rules, 2017.
That, in reply to para 30 to 39 of the writ petition, I am
reiterating to say again that until and unless the
petitioner coming under the zone of ceiling limit of the
gratuity of Rs. 10.00 lakhs, he has no right to claim such
enhanced gratuity as the petitioner has been retired from
service from the date when the ceiling limit of gratuity
amount of Rs. 4.00 lakhs was in force and therefore,
there would not be applied any logic or judgments in the
case of the petitioner which the petitioner has described
in his supporting the writ petition. But the logic is, first
the petitioner should proof that he was retired from
service on or after 1st April, 2017 and thereafter, the
question of entitlement of enhanced gratuity would come
in favour of the petitioner or not. The answering
respondents has granted gratuity in favour of the
petitioner considering the prevailing applicable of rules of
the State Government, so there is nothing illegality on
the part of the answering respondents."
11. The respondents No.4 and 5 also have submitted
separate counter-affidavit. In para No.8-12 to the counter-
affidavit the said respondents No.4 and 5 in have made the
following assertions:
"8. That, with respect to Paragraphs No.7 to 14, 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.15 and 16, I say
that the Gratuity has to calculated i.e. Rs.29,950x66/4=
Rs.4,94,175/- 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.17, 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.18 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 31.01.2017 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 31.01.2017 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 posted as Deputy Inspector of Schools
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, M. Debbarma, Addl. 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 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.
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 31.01.2017. Now for the sake of
convenience, I would like to mention herein below 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.
18. The state-respondents already in their counter-
affidavit stated that the petitioner was given an amount of
Rs.4,94,175/- 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 31.01.2017 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 23:44:54 +05'30'
Moumita
