Tripura High Court
Lal Zakim Rokhum vs Tripura Road Transport Corporation on 20 February, 2020
Equivalent citations: AIRONLINE 2020 TRI 365
Author: Akil Kureshi
Bench: Akil Kureshi
Page 1 of 5
HIGH COURT OF TRIPURA
AGARTALA
W.P(c) No. 1209/2019
Lal Zakim Rokhum, S/o. Lt. Shilnung Rokhum, R/o. Howaibari,
Teliamura, P.O & P.S-Teliamura, District-Khowai Tripura.
----Petitioner(s)
Versus
1. Tripura Road Transport Corporation, (A Govt. of Tripura
undertaking) to be represented by the Chairman, Tripura Road
Transport Corporation, Krishnanagar, Agartala, West Tripura.
2. The Managing Director, Tripura Road Transport Corporation,
Krishnanagar, Agartala, West Tripura.
----Respondent(s)
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Advocate.
Mr. Kawsik Nath, Advocate.
For Respondent(s) : Mr. K. Bhattacharjee, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI Date of hearing and Judgment : 20th February, 2020.
Whether fit for reporting : NO.
JUDGMENT AND ORDER(ORAL) Heard learned counsel for the parties for final disposal of the petition.
[2] Petitioner has prayed for a direction to the respondents to release gratuity amount by applying revised ceiling of Rs. 20,00,000/-
(rupees twenty lakhs) instead of Rs.10,00,000/-(rupees ten lakhs) as has been done by the employer.
[3] Brief facts are as under:
The petitioner was working with Tripura Road Transport Corporation (TRTC, for short). He retired on superannuation w.e.f.
30.06.2018 as Traffic Supervisor. As per the length of service and last pay draw the gratuity payable came to Rs.13,53,150/-(rupees thirteen lakhs fifty three thousands one hundred and fifty). However, the Page 2 of 5 employer paid gratuity of Rs.10,00,000/- (rupees ten lakhs) and a further sum of Rs.60,000/-(rupees sixty thousands) by way of interest on such gratuity under Office Order dated 29.03.2019. This was done by applying a ceiling for payment of gratuity at Rs.10,00,000/-(rupees ten lakhs). The petitioner argues that by virtue of a notification dated 29.03.2018 issued by the Government of India, the gratuity limit was revised to Rs.20,00,000/-(rupees twenty lakhs) from Rs.10,00,000/-
(rupees ten lakhs) and the petitioner, therefore, should have been paid full gratuity as calculated by the employer.
[4] The corporation contends that such revised ceiling for payment of gratuity would not be applicable to State Government Corporations unless the Government notifies such revised ceiling and permits the Corporation to pay the same. In this context respondents have placed on record a memorandum dated 15.09.2016 issued by the Labour Commissioner, Government of Tripura in which it has been stated as under:
"The Ministry of Law and Justice (Legislative Department), Government of India enhanced the rate of ceiling of gratuity as per the Payment of Gratuity (Amendment) Act, 2010 (N0.15 of 2010) published in the Gazette of India, Extraordinary Issue dated 18th May, 2010 (Copy enclosed). The Notification shall be deemed to have come into force on the 18th May, 2010.
Hence, all the PSUs/Autonomous Bodies/ Societies/Boards/Corporations under different Department of the State Government are hereby directed to take necessary arrangement to pay the amount of gratuity to the eligible employees/Workers as per provisions of the Payment of Gratuity(Amendment) Act, 2010 (No.15 of 2010) The Payment of Gratuity Act, 1972 should not be extended without prior concurrence of the Finance under Any circumstances. This direction h as been given by the Finance Department, Government of Tripura vide No. F.20(() Fin(G)/2004 dated 16th August, 2011"
[5] Both these issues came up for consideration in two recent judgments passed by this Court. In case of Sri Bhupati Debnath Page 3 of 5 Vrs. The State of Tripura and Others: W.P(c) No. 1054/2019 (decided on 13th February, 2020) under somewhat similar circumstances it was held and observed as under:
"10. It can thus be seen that insofar as the payment of gratuity, its computation and the ceiling up to which such amount can be paid as referred to in Section 4 of the said Act, the term "appropriate Government" has no bearing. This distinction is also apparent from the statement of objects and reasons which provides that for the purpose of uniformity, the Central Act was envisaged. At the same time, appropriate Government is for the purpose of administering the Act. The ceiling limit for payment of gratuity is provided in sub-section (3) of Section
4. Previously, such ceilings were contained in the sub-section itself. Pursuant to amendment by virtue of Act 12 of 2018 the power to prescribe such ceiling has been vested in the Central Government to be exercised by issuing notification in this regard. It is in exercise of such delegated powers of legislation that the Central Government has issued a notification dated 29.03.2018 which reads as under:
"S.O. 1420 (E).--In exercise of the powers conferred by sub-section (3) of section 4 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies that the amount of gratuity payable to an employee under the said Act shall not exceed twenty lakh rupees."
11. This revised ceiling thus would apply to all establishments irrespective of whether they are controlled or governed by the State or the Central Government as the appropriate Government. The stand of the respondents, therefore, that unless and until such revised ceiling of payment of gratuity is adopted by the State Government, the employees of the said corporation cannot claim benefit of such revised limit cannot be accepted. Revised ceiling limit of ₹20,00,000 (rupees twenty lakhs) would be applicable to the petitioner.
12. The corporation cannot cite the reason of financial constraints indefinitely for paying post retiral benefits of its employees. The petitioner has put in more than 29 years of service. His service is not governed by the pension scheme. After his retirement, therefore, he would have only savings in the form of gratuity, provident fund accumulated in his account and leave encashment, if any, to fall back upon in his old age. Such amount must, therefore, be paid over to him as soon as possible.
13. Under the circumstances, petition is disposed of with following directions:
(i) As provided earlier, the petitioner shall apply to the respondent No.2 stating his calculation of payable gratuity. The respondent No.2 shall examine the petitioner's calculation and convey to him if any gratuity remains still payable;
(ii) While calculating such gratuity, revised limit of ₹20,00,000 (rupees twenty lakhs) shall be applicable;
(iii) If there is any shortfall in payment of gratuity, the same shall be paid within a period Page 4 of 5 of 4(four) months from today with simple interest @ 7.5% per annum from one month after the date of superannuation till actual payments;
(iv) The remaining amount of leave encashment shall be released within a period of 4(four) months from today. The entire leave encashment payment shall carry simple interest @ 7.5% per annum from one month after the date of retirement till actual payments;
(v) The gratuity already paid shall also carry simple interest @ 7.5% per annum from one month after the date of retirement till actual payments."
[6] In case of Smt. Mamata Singha Roy Vrs. The State of Tripura and another: W.P(c) No. 1057/2019 (decided on 13th February, 2020) in the context of the said memorandum dated 15.09.2016 it was further observed as under:
"8. Under the office memorandum dated 15.09.2016 the Government correctly clarified this position and required all PSUs/ Autonomous Bodies/ Societies/Boards/Corporations under different departments to make arrangements to pay the amount of gratuity as per the said revised limit. In the last paragraph, however, it has been stated as under:
"The payment of Gratuity Act 1972 should not be extended without prior concurrence of the Finance under any circumstances. This direction has been given by the Finance Department, Government of Tripura vide No.-F.29(9)- Fin(G)/2004 dated 16th August 2011."
9. This portion cannot nullify the earlier clarification of all PSUs/Autonomous Bodies/Societies etc. under the department of the State Government to pay gratuity as per the revised limit under the Payment of Gratuity (Amendment) Act, 2010 (Act No.15 of 2010). Firstly, no directive not to pay gratuity as per the statutory provision, can be made by executive instructions. Secondly, one possible meaning of this clarification is that when an organisation is extending the benefit of Payment of Gratuity Act, concurrence of the Finance Department will be needed. In either case, this last paragraph of the said office memorandum cannot govern the present case as per the correct legal position emerging from this statute.
10. Thus, when the legislature amended the said Act by Payment of Gratuity (Amendment) Act, 2010 (Act No.15 of 2010) and revised the ceiling of gratuity from ₹3,50,000 (three lakhs fifty thousand) to ₹10,00,000 (rupees ten lakhs), the petitioner was governed by such provision. The ceiling of gratuity payable was thus raised to ₹10,00,000 (rupees ten lakhs). On the date of retirement this provision was applicable. The act of the respondent No.2 to restrict her gratuity to ₹4,00,000 (rupees four lakhs) against the computed gratuity of ₹6,35,754 was incorrect.
11. In the result, the petition is allowed. The respondents are directed to release the remaining Page 5 of 5 amount of gratuity of ₹2,35,754 by applying the revised limit. This payment shall be made along with simple interest @ 7.5% per annum from one month after the date of retirement till actual payments. Directions to be carried out within 4(four) months from today."
[7] In view of the above discussion, respondents are directed to release the remaining amount of gratuity payable to the petitioner which shall carry simple interest @ 7.5 % after completion of one month from the date of retirement till actual payment. Payment shall be made within three months from today.
[8] Petition is disposed of. Pending application(s), if any, also stands disposed of.
(AKIL KURESHI),CJ.
Dipankar