Himachal Pradesh High Court
R.B.S. Negi & Ors vs State Of Hp & Others on 18 September, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 8215 of 2013
Decided on: 18.9.2015
R.B.S. Negi & ors ...Petitioners
Vs
State of HP & others ...Respondents.
Coram
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the Petitioners : Mr. B.M.Chauhan, Advocate.
For the Respondents : Mr. Meenakshi Sharma, Mr.
rt Rupinder Singh, Addl.AGs and
Ms. Parul Negi, Dy.AG for the
respondents No. 1 and 2.
Mr.Lalit K. Sharma, Advocate for
respondent No.3.
Tarlok Singh Chauhan, Judge (Oral):
This writ petition has been filed seeking the following reliefs:
"(i) That the letter dated 31.8.2013 issued by the respondent No.3 to the extent the benefit of enhanced gratuity has been confined only to those employees of the respondent No.3 Bank who have retired after 24.5.2010 instead of to all those who have retired on or after 1.1.2006 may kindly be quashed and set aside and the petitioners may kindly be held entitled for the payment of enhanced gratuity of ceiling of Rs.10.00 as per the provisions of Rules of the Bank as Annexure P-1 and Office memo issued by the Government of HP Department of Finance (Pension) dated 14.10.2009 Annexure P-2 with effect from due date with all consequential benefits and arrears may ::: Downloaded on - 15/04/2017 18:58:20 :::HCHP 2 kindly be ordered to be paid along with .
interest. "
Facts, in brief, may be notice.
2. The petitioners are retired employees of the respondent bank having retired after 1.1.2006, but of before 18.5.2010 and are claiming benefits on the basis of rt Memorandum issued by the State Government on 14th October, 2009, whereby the gratuity of the employees of the Government of Himachal Pradesh was enhanced/ revised from Rs. 3.5 lacs to Rs. 10.00 lacs. This enhancement has been claimed on the basis of Service Rules formulated by the respondent bank known as "The Service Rules for the employees of the Himachal Pradesh Co operative Agricultural and Rural Development Bank Ltd." ( for short 'Rules')
3. The respondent bank has filed reply wherein it has raised preliminary objection regarding maintainability of the petition on the ground that it is not the State within the meaning of Article 12. Insofar as the merits of the case are concerned, it is averred that Ministry of Labour & Employment, Government of India, vide its notification dated 18.5.2010 issued, in exercise of the power conferred by Sub Section (2) of ::: Downloaded on - 15/04/2017 18:58:20 :::HCHP 3 Section 1 of the Payment of Gratuity (Amendment) .
Act, 2010, appointed 24th May, 2010 as the date on which the said Act shall come into force. Therefore, it is only the employees, who retired after this date, who of alone will be entitled to the enhanced amount of gratuity of Rs. 10.00 lacs as against the existing Rs.3 .5 rt lacs. This decision, according to the respondents, was taken by the apex body, i.e. Board of Directors after due deliberations and, therefore, cannot be faulted.
4. I have heard the learned counsel for the parties and have gone through the records.
5. Indisputably, the respondent bank is a creation of the statute i.e. Himachal Pradesh Co operative Agriculture Societies Act, 1968 and by virtue of this fact alone, is the 'State' within the meaning of Article 12 of the Constitution of India and, therefore, amenable to the writ jurisdiction of this court.
6. Adverting to the merits of the case, it would be evident from the perusal of Rule 30, more particularly Sub Rule 3 thereof that the employees of the respondent bank are entitled to the gratuity as is fixed by the government of Himachal Pradesh from time to time. Sub Rule 3 of Rule 30 reads as follows:
::: Downloaded on - 15/04/2017 18:58:20 :::HCHP 4"The amount of gratuity to an employee shall not .
exceed 20 months wages or the maximum amount of gratuity as fixed by the Government of Himachal Pradesh from time to time whichever is less."
7. Now in case the notification issued by the of government of Himachal Pradesh on 14.10.2009, whereby gratuity was enhanced from Rs. 3.5 lacs to rt Rs.10.00 lcs is perused, it would be noticed that this notification was to be apply to all those who had retired or would be retiring after 1.1.2006.
8. The question, therefore, which falls for consideration, is as to whether the respondent bank through its Board of Directors could have superseded the express provisions of rules.
9. According to the "pure theory of law" of the eminent jurist Kelsen, in every legal system there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher layer prevails, and the norm in the lower layer becomes ultra vires.
10. In our country this hierarchy is as follows:
(1) The Constitution of India.
::: Downloaded on - 15/04/2017 18:58:20 :::HCHP 5(2) Statutory law, which may be either law .
made by the Parliament or law made by the State Legislature.
(3) Delegated legislation which may be in the form of rules, regulations etc. made under the Act. (4) Administrative instructions which may be in of the form of GOs, Circulars etc.
11. Therefore, in the event of there being a rt conflict between the Act, Rules and regulations, the Act will prevail and if there is a conflict between the Act, Rules and the regulations on the one hand and the circular or prospectus on the other hand, the Act will prevail and the later becomes ultra vires. (Refer:
Union of India and others vs.Arun Kumar Roy, AIR 1986 SC737, Shish Ram and others vs. State of H.P. and others, (1996) 10 SCC 166 and Union of India vs. Madras Telephones Scheduled Castes and Scheduled Tribes Social Welfare Association (1997) 10 SCC 226).
12. In view of the exposition of law, referred to above, it is abundantly clear that the decision taken by the Board of Directors could not have and cannot supersede the provisions contained in the rules and if there is a conflict between the rules and the decision, it is obvious that it is the provisions of the rule which will prevail and later becomes ultra vires.
::: Downloaded on - 15/04/2017 18:58:20 :::HCHP 613. Having said so, there is no difficulty in .
concluding that the letter dated 31.8.2013, issued by the respondent bank confining the benefit of enhanced gratuity only to those of its employees who of had retired after 24.5.2010 instead of those who had retired on or after 1.1.2006, is contrary to Rule 30(3) of rt the Rules and is accordingly quashed and set aside.
The petitioners are accordingly held entitled to the payment of enhanced gratuity of Rs. 10.00 lacs in terms of the notification issued by the Government of HP on 14.10.2009.
14. It is further made clear that in case the enhanced gratuity is not paid within the period of 60 days, then in addition to the enhanced gratuity, petitioners shall also be entitled to simple interest @ 9% p.a. from the date when the gratuity became due till the date of actual payment.
The petition is disposed of in the aforesaid terms, leaving the parties to bear the costs.
(Tarlok Singh Chauhan), Judge.
September 18, 2015 (sl) ::: Downloaded on - 15/04/2017 18:58:20 :::HCHP