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[6.2] The learned Single Judge failed to appreciate that under Section 5 of the Payment of Gratuity Act, 1972 the State Govt. has the power to exempt an organization from the purview of Payment of Gratuity Act, 1972. Even in the Counter Affidavit filed by the State, the State took a stand that the Payment of Gratuity Act, 1972 will not apply to the Agartala Municipal Corporation as CCS (Pension) Rules, 1972 has been adopted for Agartala Municipal Corporation. State has taken the stand that adoption of CCS (Pension) Rules, for the employees of the Agartala Municipal Corporation is a conscious decision in view of under Section 5 of the said Act. The adopted CCS (Pension) Rules, 1972 was further modified by the Urban Development Department, Govt. of Tripura by enacting Rule under Section 274 of Tripura Municipal Act, 1994 which was called as the Tripura State Govt. Pensioners and Family Pensioners (Revision of Pension) Rules, 1999 as notified vide Notification dated 14.08.2003. The appellants highlight that Rule 50 of CCS (Pension) Rules, 1972 deals with Payment of Gratuity and the ceiling limit of payment is revised time to time as per Tripura State Civil Services (Revised Pension) Rules. The notification dated 14.08.2003 was not challenged in WP(C) No.1091/2017 in the case of Sri Samir Kumar Ghosh Vs. the State of Tripura and others and the Hon‟ble Court also did not consider this aspect of exemption of AMC from the purview of Payment of Gratuity Act, 1972 by a process for adoption and subsequent framing of Rules.

[6.8] All the writ petitioners, barring few, filed their respective writ petitions after 3(three) years from the date of retirement. In some cases there is a delay of 8/9 years in approaching the Hon‟ble Court. Further, for the delay caused in filing of the writ petition, explanation should be given to the satisfaction of the Hon‟ble Court.

[6.9] That, Payment of Gratuity is a one-time financial benefit given to the employees on superannuation or death or resignation as the case may be and there is no continuous cause of action in case of Payment of Gratuity. No recurring loss is suffered by the employees and therefore the writ petitioners ought to have approached the Hon‟ble Court immediately after their retirement. [6.10] That, the petitioners are also estopped from claiming gratuity under the Payment of Gratuity Act, 1972 having accepted the gratuity extended to the writ petitioners under the CCS (Pension) Rules, 1972. The appellants submit that before the date of retirement of the writ petitioners, gratuity was sanctioned in favour of the writ petitioners under the CCS (Pension) Rules, 1972 and 75% of the gratuity was also paid to the writ petitioners. The remaining amount of gratuity was also paid to the writ petitioners after settlement of other retiral benefits. The writ petitioners thus accepted gratuity under the CCS (Pension) Rules, 1972 and were in deep slumber for considerable years. The Hon‟ble Apex Court in a judgment reported in (1974) 1 SCR 304 titled Parameshwai Prasad Gupta versus Union of India held that the rules of the company expressly purport to bind all the employees of the company. In Punjab and Sind Bank and another versus S. Ranveer Singh Bawa and another, (2004) 4 SCC 484 the Hon‟ble Apex Court applied the law of estoppel on an employee of the bank who opted for VRS and thereafter utilized the payments made to the employee by holding that the employee cannot resile from the VRS opted by the employee. [6.11] That, under Rule 7 of the Payment of Gratuity Act, 1972 an employee is who is eligible for Payment of Gratuity under the Act is to apply within 30 days from the date from which the gratuity became payable in „I‟ to the employer. The first proviso to Rule 7(1) provides that in case of superannuation or retirement the employee may apply to the employer before 30 days of the date of superannuation or retirement. In the present cases none of the writ petitioners made any application to the employer for payment of gratuity before 30 days of the date of superannuation or retirement. Also, there is a provision for appeal under Rule 18 of the Rules to the appellate authority against the decision taken by the controlling authority under Rule 17 of the Rules. The writ petitioners herein did not exhaust the said alternative remedy provided by the Payment of Gratuity Rules, 1972 and has approached the Writ Court.

[7] Learned counsel for the appellant-Corporation, has therefore contended that the State of Tripura has adopted CCS (Pension) Rules, 1972 to AMC vide notification dated 21.12.1991 which is in the nature of an exemption under Section 5 of the Act of 1972. The Urban Development Department, Government of Tripura has framed the Tripura State Government Pensioners and Family Pensioners (Revision of Pension) Rules, 1999 which have been be adopted for the employees of the AMC. By the said notification the provisions of CCS (Pension) Rules, 1972 stood modified to the extent provided thereunder. AMC has, thereafter, been paying gratuity to its employees under the said Rules as per the rate of gratuity, the ceiling limit and the qualifying service. Learned counsel for the appellant-Corporation has also contended that the petitioners did not challenge the notification dated 21.12.1991 whereby the State Government adopted CCS(Pension) Rules 1972 for AMC neither did they challenge the notification dated 14.08.2003 by which specific Rules for AMC for payment of gratuity to its employees of the AMC were framed. These aspects were not considered by the learned Writ Court in WP(C) No. 1091/2017 in case of Sri Samir Kumar Ghosh (supra). The learned Division Bench also did not consider these issues in Writ Appeal No.185/2020 in case of Agartala Municipal Corporation (supra). In substance, it is the stand of the AMC that by adoption of CCS(Pension) Rules, 1972 a conscious decision was taken to exempt the Corporation from applicability of the Act of 1972 in exercise of the powers under Section 5 by the appropriate government i.e. the State Government in the instant case. The decision in case of N. Mani Vs. Sangeetha Theatre and others rendered in (2004) 12 SCC 278 (paragraph- 8 and 9) is also relied upon by the appellant-Corporation to buttress the submission.

[9.17] That, so far Agartala Municipal Corporation is concerned, there is no exemption obtained under Section 5 of the Act, 1972. Adoption of the CCS (Pension) Rules, 1972, by the Agartala Municipal Corporation under no stretch of imagination, can be held as obtaining of exemption under Section5 of the Act, 1972. Moreover, exemption under Section 5 of the Act is available only when the employees of the concerned establishment, factory, mine, oilfield, plantation, port, railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under the Act. As evident from the Counter Affidavit of Agartala Municipal Corporation, the benefits available to the employees of the municipality under the CCS (Pension) Rules, 1972 is less favourable than the benefits conferred under the Payment of Gratuity Act, 1972. For this simple and obvious reason, Section 5 cannot be invoked. Even assuming by giving imagination a wild run, that, Notification adopting CCS (Pension) Rules, falls under Section 5; then also Section 5 cannot be invoked, as admittedly, the benefits given under the CCS (Pension) Rules, 1972, are not more favourable than the benefit conferred under the Act, 1972.