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6. The letter of resignation dated 27-7-59 is not an exhibit in the case but it is annexure A to the plaint, and there is no doubt that by the same letter the plaintiff asked for leave from the 28th July till 31st August, 1959. The letter dated 28-7-59, Ext. 4(ka), was sent to the plaintiff as is the evidence of D. W. 1 T. V. S. Ratnam on the advice of some superior officer and probably in the afternoon. Ext 4(kha) dated 29-7-59 is the explanation submitted by the plaintiff. Since the facts are not in dispute, or in any event some of the disputed ones are not necessary to be decided, it is needless to refer to other exhibits. I would, however, like to refer to the evidence of Sudhir Chandra Sarkar, the plaintiff, who examined himself as P. W. 2. His statement in examination-in-chief is that as a condition of his service he was to take among other facilities and emoluments, the retiring gratuity money as one of the benefits of the service condition and that he was entitled to the gratuity money according to the rules and conditions of service he was in. In cross-examination he stated that there is a set of rules regarding granting of gratuity money to the employees and his claim is based on those rules. He further said that the gratuity rules will show that the payment of gratuity is a condition of the service. There does not seem to be any denial of this fact. Reading the pleadings and the evidence of the parties in this case, I have no difficulty in arriving at the conclusion that the service conditions of the plaintiff were governed by the Works Standing orders and that it was an implied condition of service that he could get gratuity in accordance with the Retiring Gratuity Rules, 1937 framed by the Company. The Works Standing orders are Ext. C in the case and the Retiring Gratuity Rules, as they stood at the relevant time are Ext. D. F. A. 554 of 1964.

8. In the written statement, the defendant Company has not denied that the service of the plaintiff was governed by the Standing orders but asserts that the plaintiff is not entitled to any gratuity under those orders; the rules for gratuity are altogether different. The Retiring Gratuity Rules of the Company "constitute a part of the terms and conditions of service between the company and the employee and the employee cannot legally claim anything against such terms and conditions." In this case, there is no dispute or complication of any fact at all. The only witness examined in the case is the plaintiff himself (P. W. 1). His definite evidence is that he is entitled to get retiring gratuity under the rules. From the pleadings and the evidence in this case also, there is no difficulty in arriving at the conclusion that the service conditions of the plaintiff were governed by the Works Standing orders and he could get gratuity on his retirement under the Retiring Gratuity Rules, 1937. The Works Standing orders do not seem to have been exhibited in this suit. But at the time of the hearing of the appeals they were referred to in both the cases, and as already stated, they are Ext. C in the other case. The Retiring Gratuity Rules, 1937 as they stood before the amendment brought about in 1955, were marked Ext. A in this case but the Rules as they stood on the relevant date, were marked Ext. A/1.

14. Then comes the question whether the Retiring Gratuity Rules of 1937 were a condition of service of the plaintiffs. Rule 2 says that the Rules shall be deemed to have been established on and from the 1st of April. 1937 pursuant to a resolution of the Directors of the Company passed on the 6th day of January. 1937 but the present Rules shall be deemed to have come into force as from 1st January. 1948 pursuant to the resolution of the Directors of the Company passed on the 4-4-1948. Neither of the plaintiffs has claimed or could claim that when he joined service of the Tisco Ltd. in one case in the year 1929 and in the other in the year 1940, he did so expressly agreeing to the Gratuity Rules being one of the conditions of his service. Ext. 5 a notice of advertisement dated 26-4-63 in the suit giving rise to First Appeal 444/63, inviting applications to a certain post in a stated salary with other allowances as permissible under the rules, provident fund, leave, privileges, retiring gratuity, etc. is of no consequence. I. however, hold that the Gratuity Rules when they came into force from 1st January. 1948, impliedty became the service conditions of all the employees under service of Tisco Ltd. unless expressly excluded. Again I say on the basis of the pleadings of the parties and the unchallenged evidence of the plaintiff that this position is not disputed -- rather is admitted.

This rule was amended on 25-8-55. Before amendment, it was Rule 9 as contained in Ext. A. The relevant words with which we are concerned in these appeals were identical. The only amendment was that special gratuity to be paid under the provision of Rule 22 was not left at the absolute discretion of the Company and by necessary implication was provided to be claimed as a matter of right. Rule 22 provides for special gratuity in case of an employee who agrees in writing to forgo the amount of annual bonus, in other words, special gratuity is to be paid in lieu of bonus which the employee could have got but for his forgoing to receive it Rule 11(1) says that uncovenanted employees of the Company governed by the Industrial Disputes Act or any legislation providing for any retiring or retrenchment benefit will be granted the retiring or retrenchment benefit as provided in the aforesaid Act, but may be granted the excess under the Rules. Sub-rule (2) of Rule 11 says that uncovenanted employee of the Company, not governed by the said Act or any other legislation may. subject to the provisions of the Rules, be granted a gratuity, on fulfilment of the conditions provided therein, one of which is completion of 15 years continuous service. It would thus be seen that under Rule 6 on fulfilment of service condition an employee becomes eligible for retiring gratuity, he does not become entitled, as a matter of right He merely attains, on fulfilment of the condition, the benefit of eligibility or suitability for the retiring gratuity and not the right. Under Rule 6, the whole of the amount of gratuity becomes payable in one lump sum, and that is the reason that rule 7 was introduced by an amendment in the year 1959 that "notwithstanding anything contained in these Rules" which phrase by necessary implication has got to mean that notwithstanding the contrary provision in Rule 6, a gratuity shall become due and be payable In such instalments as may be fixed by the Board of Directors of the Company. The first part of rule 7 does not repeal or wipe off the effect of rule 10; rather the second part fortifies it in that it savs that until any such instalment shall become or have become due and payable, the employee who qualifies for payment under the Gratuity Rules shall not be eligible to receive it. In my opinion, therefore, until and unless the Company has decided to pay the gratuity money, in accordance with rule 7 or otherwise, the mere fact of the employee becoming eligible to get it under Rule 6 does not create any right for the payment of gratuity under the Rules by enforcement of such a claim in a Civil Court. The matter of payment of gratuity is at the absolute discretion of the Company and the employee, however unfortunate the position may be under the modern stage of the society, is not entitled to claim it as a matter of right even though payment of gratuity under the Rules is an implied condition of service, yet the condition is further conditioned by the provisions made in the rules and is subject to them, It is, no doubt, true that the plaintiffs were in the service of the Tisco Ltd. on the tacit understanding and hope that on retirement they would get the gratuity money in accordance with the Rules. As a court of law however dealing with the enforcement of the alleged right in a Civil Court. I cannot persuade myself to take the view that it is possible to decree the suit of the plaintiffs on the footing of the Rules being an unconditional promise on the part of the employer to pay the gratuity money. It may well be that an industrial dispute can be raised by the workmen of Tisco Ltd. to do away with the provision of Rule 10 contained in the Rules as it is unconscionable and incompatible with the modern notions or conditions which ought to govern the relation between employer and employee, It may further well be that If an industrial dispute raised by workmen claiming gratuity even according to the Rules as they exist goes before the Tribunal under the Central Act 14 of 1947, the Tribunal may be in a position to award the gratuity as a matter of right even under the existing Rules. But a Civil Court cannot do so. An industrial tribunal deciding a dispute under Central Act 14 of 1947, as laid down by the Federal Court in Western India Automobile Association v. Industrial Tribunal, AIR 1949 FC 111 and Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., 1950 SCR 459 = (AIR 1950 SC 188), can create new rights and bring about industrial truce by awarding such sums as ought to be granted. But the Civil Court is unable to do so. Payment of gratuity money can, no longer, be called a gratuitous payment or payment as a matter of reward or boon as was the view expressed earlier in many cases, to wit, Bawan Das v. Mulchand, ILR (1884) 6 All 173, Janki Das v. East Indian Rly. Co., (1884) ILR 6 All 634, Natha Gulab and Co. v. W. C. Shaller, AIR 1924 Bom 88, Usman Abubakar Sani v. Chief Ac-