Gauhati High Court
Babita Gupta vs Assam Gramin Vikash Bank And 4 Ors on 9 March, 2021
Author: Songkhupchung Serto
Bench: Songkhupchung Serto
Page No.# 1/10
GAHC010055082018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1697/2018
BABITA GUPTA
W/O. SRI DIWAKAR ROY, D/O. SRI DILIP GUPTA, RESIDENT OF ARYA PATH
2, SARABH BHATI, GIRLS HOSTEL ROAD, H/O-6, GUWAHATI-16.
VERSUS
ASSAM GRAMIN VIKASH BANK AND 4 ORS.
( A JOINT UNDERTAKING OF GOVT.OF INDIA, GOVT. OF ASSAM AND
UNITED BANK OF INDIA), REPRESENTED BY ITS CHAIRMAN, HEAD
OFFICE, G.S. ROAD, BHANGAGARH, GUWAHATI-781005 (ASSAM).
2:THE CHAIRMAN
ASSAM GRAMIN VIKASH BANK
HEAD OFFICE
G.S. ROAD
BHANGAGARH.
3:THE GENERAL MANAGER
ASSAM GRAMIN VIKASH BANK
H.O.G.S. ROAD
BHANGAGARH
4:THE REGIONAL MANAGER
ASSAM GRAMIN VIKASH BANK
REGIONAL OFFICE
NALBARI
5:THE CHIEF MANAGER (PERSONNEL)
ASSAM GRAMIN VIKASH BANK
HEAD OFFICE
GUWAHATI-78100
Page No.# 2/10
Advocate for the Petitioner : MS D BORGOHAIN
Advocate for the Respondent : MR S DUTTA (R1-R5)
BEFORE
HONOURABLE MR JUSTICE SONGKHUPCHUNG SERTO
ORDER
Date : 09-03-2021 Heard Ms. D. Borgohain, learned counsel for the petitioner and also heard Mr. S. Dutta, learned Sr. counsel appearing for the respondents.
2. After serving for 5 years and 10 months, the petitioner who was an Officer in the Junior Management Scale-I (Assistant Manager) of the Assam Gramin Vikash Bank, submitted her resignation letter to the Chief Manager (Personnel), Assam Gramin Vikash Bank on 27.11.2017. Her resignation letter was accepted and she was released from service vide Office Order No. AGVB/RONAL/ADMN/12/68/2017-18, dated 03.03.2018, issued by the Regional Manager. But before she was released from service, on 16.01.2018 she had submitted a representation to the Chief Manager (Personnel), Assam Gramin Vikash Bank requesting for payment of gratuity. Following her request, the Chief Manager (Personnel) wrote to the Regional Manager, Assam Gramin Vikash Bank stating that the petitioner is not entitled to gratuity as per the provision of the Regulation-72(2)(d) of Assam Gramin Vikash Bank Service Regulation, 2010 (which shall hereinafter be referred to as Regulation of 2010). On 08.02.2018 through a letter the petitioner was informed by the Regional Manager that she is not entitled to gratuity. Being aggrieved by the denial of gratuity the petitioner has come before this Court by filing this writ petition.
3. The case of the petitioner as submitted by her learned counsel in brief is that, in view of the provision of Regulation-72(1) of the Regulation of 2010 the employees of the Bank are eligible for payment of gratuity either under the Regulation of 2010 or under section-4 of the Payment of Gratuity Act, 1972. Therefore, though the petitioner did not complete 10 years of service which is the required length of service for entitlement to gratuity under the Regulation-72(2)(d) before she resigned she is entitled to the same under section-4(1) of the Page No.# 3/10 Payment of Gratuity Act, 1972 since she had done more than 5 years of continuous service when she tendered her resignation.
The learned counsel for the petitioner submitted that though it is true that Regulation- 72(1)(d) of the Regulation of 2010 provides minimum period of 10 years of continuous service as qualifying period of service for entitlement of gratuity under section-4(1) of the Payment of Gratuity Act, 1972, the period prescribed is only 5 years continuous service. And, since the Regulation-72(1) of the Regulation of 2010 permits an employee to claim gratuity under either of the provisions of the two laws, the petitioner could not have been denied the benefits of gratuity.
The learned counsel further submitted that the Payment of Gratuity Act, 1972 is a special Act, therefore, it has the overriding effect over any Act or Rule or Regulation when it comes to payment of gratuity. As such, the petitioner's claim for gratuity should have been considered under section-4(1) of the same Act. The learned counsel also submitted further that the Assam Gramin Vikash Bank Service Regulations is not an act passed by the parliament whereas, the Payment of Gratuity Act, 1972 was therefore, the provisions of the later or any rule made there under shall have the preeminence over the provisions of the former.
Furthermore, the learned counsel, submitted that section-14 of the Payment of Gratuity Act, 1972 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent there with contained in any enactment other than this Act or in any instrument or contract having effect by virtue or any enactment other than this Act. Therefore, by virtue of this provision also the provision of section-4(1) of the Act will have overriding effect over the provision of Regulation-72 of the Regulation of 2010. Hence, the petitioner would be entitled to gratuity.
The learned counsel in support of the above submissions referred to the judgment of this Court passed in the case of Assam Gramin Vikash Bank & Another -versus- The Union of India and 4 Others in W.P.(C) No. 3086/2018, reported in 2019 (5) GLT 253.
4. Mr. S. Dutta, learned Sr. counsel appearing for the respondents submitted as follows;
That the permeable of the Assam Gramin Vikash Bank (Officers and Employees) Service Regulations, 2010 shows that the Regulation was made by the Board of Directors of Assam Gramin Vikash Bank, after consultation with the Untied Bank of India, being the Page No.# 4/10 sponsored Bank and the National Bank for Agriculture and Rural Development and with the previous sanction of the Central Government, in exercise of the powers conferred by section- 30 of the Regional Rural Banks Act, 1976, to regulate the service conditions of the Officers and Employees of the Bank. Therefore, the regulation is a child of Regional Rural Bank Act, 1976 which is a Statutory and special Act hence, it has the force of a statue and special Act. Further, the learned Sr. counsel submitted that the Payment of Gratuity Act, 1972 is a general Act which has general application to employees of all factories, mines, oilfield, plantations, ports and railway companies, every shop or establishment etc. all over the Country, therefore, when it comes to entitlement conditions of gratuity for Officers and Employees of Assam Gramin Vikash Bank, the provisions of the regulation cannot be superseded by the provisions of this Act. On this submission, Mr. S. Dutta referred to the judgment of the Hon'ble Supreme Court passed in the case of P. Ranjan Sandhi -versus- Union of India & Another, reported in (2010) 10 SCC 338. The relevant portion of the judgment relied upon by the learned counsel is paragraph-11. The contents of the paragraph are given herein below;
"11. It may be seen that there is a difference between the provisions for denial of gratuity in the Payment of Gratuity Act and in the Working Journalists Act. Under the Working Journalist Act gratuity can be denied if the service is terminated as a punishment inflicted by way of disciplinary act, as has been done in the instant case. We are of the opinion that Section 5 of the working Journalists Act being a special law will prevail over Section 4(6) of the Payment of Gratuity Act which is a general law. Section 5 of the Working Journalists Act is only for working journalists, whereas the Payment of Gratuity Act is available to all employees who are covered by that Act and is not limited to working journalists. Hence, the Working Journalists Act is a special law, whereas the Payment of Gratuity Act is a general law. It is well settled that special law will prevail over the general law, vide G.P Singh's Principles of Statutory Interpretation, 9th Edn., 2004, pp.133 and 134."
The learned Sr. counsel also referred to the judgment dated 26.05.2016, passed in W.A No. 59/2015 by a Division Bench of this High Court. The relevant portions of the judgment are given herein below;
Page No.# 5/10 "A perusal of the Regulations of 1979 goes to show that the same had been framed in exercise of powers conferred under section 19 read with sub- section 2 of Section 12 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 by the Board of Directors of the United Bank of India. Regulations of 1979 would, therefore, have the force of a statute and would bind the bank and its employees.
Having heard the learned counsels for the parties and on an examination of the provisions of the Service Regulations of 1979, we are of the opinion that the said regulations, being specially framed to govern the conditions of service of the employees of the Bank, would over-ride the provisions contained in the Act of 1972. Therefore, the decisions cited by Mr. Medhi would be of no assistance to him in the facts of the present case. Since the respondent has been dismissed from service by way of punishment, hence, he would not be entitled to receive gratuity in view of the bar constituted by Regulation 46. As such, the direction issued by the learned Single Judge for payment of gratuity in favour of the respondent was illegal and the same is hereby set aside."
5. Mr. Dutta also referred to paragraph- 9 & 10 of the judgment dated 10.10.1988 of the Hon'ble Supreme Court passed in the case of Vidya Dhar Pande -versus- Vidyut Grih Siksha Samiti & Others in Civil Appeal No. 1697/1973, reported in Manu/SC/0565/1988. The two paragraphs of the judgment are reproduced here below;
"9. The question whether a regulation framed under power conferred by the provisions of a Statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., [ 1975] 3 SCR 619. In this case it was held that:
"There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the statute. regulation framed under a statute applies uniform treatment to every one or to all members of some group or Page No.# 6/10 class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Natural Gas Commissionaire all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations h the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the condition.''
10. There is therefore, no escape from the conclusion that regulation have force of law. The order of the High Court must therefore, be reversed on this point unhesitatingly."
6. Lastly, Mr. S. Dutta, learned Sr. counsel referred to paragraph-11 of the writ petition and submitted that, because the gratuity amount would be higher under Regulation-72(3) of the Regulation of 2010 than the one given under the Act of 1972, the petitioner had claimed payment of gratuity under the provision of the Regulation of 2010 Therefore, she should be eligible under the provision of the same regulation. But since she did not complete 10 years of service as required under Regulation-72(2)(d), she cannot be entitled to gratuity.
7. In reply, the learned counsel for the petitioner submitted that the concept of gratuity has gone through a lot of changes and it is a socially beneficial legislation adopted as a welfare measure to improve the living conditions of the retired employees, therefore, the benefits given therein must be made available to the employees by and large. In support of her submission, the learned counsel referred to the judgment of the Hon'ble Supreme Court passed in the case of Baksish Singh -versus- Darshan Engineering Works & Others, reported in AIR 1994 SC 251.
Lastly, the learned counsel submitted that, the competent authority, by invoking the provision of section -4 can certainly grant gratuity to the petitioner since she had completed continuous service of more than 5 years as required under the same provision, it is within the power of the competent authority to do the same. In support of her submission, the learned Page No.# 7/10 counsel referred to the judgment of this High Court passed in the case of Assam Gramin Vikash Bank & Another -versus- Union of India & Others, reported in 2019 SCC Online Gau 5684: (2020) 1 Gau LR 1.
8. Mr. S. Dutta in reply to the submission of the learned counsel of the petitioner submitted that the said judgment referred to by the learned counsel of the petitioner was based on different facts and circumstances, therefore, the same cannot be applied in this case. The learned counsel further submitted also that in that case the issue was whether the competent authority can invoke either the provision of Gratuity Act or the provisions of the regulation whichever is more beneficial to the employee but it was not about the terms and conditions of entitlement to gratuity.
In support of his submission, the learned Sr. counsel referred to paragraph-37 of the same judgment. The contents of the paragraph-37 is reproduced here below;
"37. Controlling Authority is defined under section 3 of the Gratuity Act which has also been noted above. There is no corresponding definition of Controlling Authority under the 2010 Regulations. Therefore, when an employee makes a claim to gratuity, it can be either under the Gratuity Act or under the 2010 Regulations which cannot, however, be detrimental to the interest of the employee. Under whichever provision gratuity is higher that may be availed by the employee. Though methodology has been provided for quantifying gratuity under the 2010 Regulations, the machinery has not been provided. Since it is a question of payment of gratuity, even in case of a claim under regulation 72, the machinery provided under the Gratuity Act would come into play along with section 3 thereof. Therefore, it is the Controlling Authority as defined under section 3 of the Gratuity Act who would be the competent authority to quantify the amount of gratuity to be paid to the employer to an employee. It is open to an employee as well as to the Controlling Authority to find out which of the two provisions provide better terms and conditions of gratuity and whichever is found to be more beneficial to the employee, the same is to be accepted."
9. I have considered the submissions of the learned counsels in the light of the facts and Page No.# 8/10 circumstances of the case and the relevant law. On perusal of the permeable of the Assam Gramin Vikash Bank (Officers and Employees) Service Regulations, 2010, I find that the regulation is a child of Regional Rural Banks Act, 1976 which is a Statutory Act, therefore, as per the settled principle of law the provisions of the regulation shall have the force of statutory law. Secondly, the Regional Rural Banks Act, 1976 and the Regulation of 2010 are Acts and regulations specially enacted and made respectively for smooth running of the Regional Banks and for controlling and regulating the service conditions of their employees. Therefore, they are special enactments and regulations and their applications are confined only to the Regional Banks and their employees. On the other hand, on careful perusal of the permeable of the Payment of Gratuity Act, 1972 it is quite clear that the same was enacted to provide for a scheme for payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and matter connected therewith or incidental thereto. Therefore, the object and ambit of the Act is to provide and to ensure that gratuity is paid to employees of all the establishments mentioned above. As such, it is a general Act. It is settled principle of law that when there is a conflict between the provision of a special Act and provision of general Act in regard to their applicability towards a certain group of people specially covered by the special Act, it is the provisions of the special Act which shall have the overriding effect over the provisions of the general Act. On this the learned counsel for the respondents had cited the relevant judgment passed by a Division Bench of this High Court and the same have been reproduced herein above.
10. Before I go further it would be relevant to reproduce the relevant provisions of Regulation-72 of the Regulation of 2010.
"72. Gratuity.-(1) An officer or employee shall be eligible for payment of gratuity either as per the provisions of the Payment of Gratuity Act, 1972 (39 of 1972) or as per sub-regulation (2), whichever is higher.
(2) Every officer or employee shall be eligible for gratuity on;-
(a) retirement,
(b) death,
(c) disablement rendering him unfit for further service as certified by a medical officer approved by the Bank, or Page No.# 9/10
(d) resignation after completing 10 years of continuous service, or
(e) termination of service in any other way except by way of punishment after completion of 10 years of service."
On careful reading of (1) of the above provision, I am of the view that an employee of a Bank covered by the regulation can ask for gratuity either under the provision of the Payment of Gratuity Act, 1972 or under the provision of sub-regulation-(2) of Regulation-72 whichever is higher. In other words, an officer or an employee of a Regional Bank shall have the liberty to choose under which of the two laws he or she should apply for gratuity. On further reading of the provisions, it also appears that if an officer or an employee chooses to apply under sub-regulation-(2) of Regulation-72 he or she must fulfilled the conditions given therein for eligibility to apply for the same. In the case of the petitioner since she retired by submitting resignation the conditions given at (d) of the sub-regulation-(2) has to be fulfilled i.e. she should have completed at least 10 years of continuous service before her resignation was submitted. Therefore, it is clear that the petitioner was not eligible to receive gratuity under sub-regulation-(2) of Regulation-72 of the Regulation of 2010. As such, her claim for gratuity under this provision cannot be accepted.
11. Now coming to section-4 of Payment of Gratuity Act, 1972, the relevant provisions of the section are first reproduced here below;
"4. Payment of gratuity. (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:"
On careful reading of the above provision, specially (b) it is quite clear that an employee is eligible to gratuity if his or her service ended by resignation after having rendered continuous service of not less than 5 years.
A joint reading of sub-regulation-(1) of Regulation-72 and section-4(1)(b) of the Act of 1972 amply makes it clear that the petitioner herein can claim gratuity under section-4 of the Page No.# 10/10 Payment of Gratuity Act, 1972 since she had completed 5 years of service at the time of her resignation but her entitlement has to be as per the provision of the same section and not as per the sub-regulation-(2) and (3) of Regulation-72 of the Regulation of 2010. The provisions of sub-regulation-(2) of the Regulation-72 being a provision under a special Act no other laws can override it. Therefore, an officer or an employee claiming gratuity under it must fulfilled the conditions of eligibility given therein. The petitioner, having not fulfilled the conditions of eligibility is not entitled to her claim of compensation as per the provision of Regulation-72(3) of the Regulation of 2010. However, as stated above, since she is eligible for claiming the gratuity under the Act of 1972, the respondents should process payment of gratuity to her under the provision of section-4 of the Payment of Gratuity Act, 1972.
Writ petition is disposed of accordingly.
JUDGE Comparing Assistant