Subir Kumar Lodh And Ors. vs State Of Tripura And Ors.

Heard Mr. P. Roy Barman, learned counsel appearing for the petitioners as well as Mr. T.D. Majumder, learned G.A. appearing for the respondent No.1 and Mr. T.K. Deb, learned counsel appearing for the respondents No. 2 and 3.

All the writ petitions being W.P.(C) No.833 of 2016 [Subir Kumar Lodh vs. State of Tripura and Others], W.P.(C) No.834 of 2016 [Badal Kumar Ghosh vs. State of Tripura and Others] and W.P.(C) No.835 of 2016 [Raj Kumar Das vs. State of Tripura and Others] are clustered for disposal by a common judgment inasmuch as a common question of fact and law has been raised in all these writ petitions relating to the extent of the amount of gratuity that the respondents are obligated to pay under Section 4 of the Payment of Gratuity Act, 1972.

The petitioner in W.P.(C) No.833 of 2016 namely Subir Kumar Lodh has retired from the post of A.D.D.O. from the Tripura Khadi and Village Industries Board on 31.12.2015 and the admitted position is that he is entitled to get the gratuity. The respondents No.2 and 3 has paid a sum of Rs.4,00,000/- as the gratuity. But the petitioner is entitled to get much larger amount as the gratuity in view of the Payment of Gratuity (Amendment) Act, 2010 which has come into effect from 24.05.2010. By means of this said amendment in Section 4 of the Payment of Gratuity Act, 1972, in sub-section (3), for the words 'three lakhs and fifty thousand rupees', the words 'ten lakhs rupees' has been substituted. The petitioner has categorically stated that his gratuity has been assessed based on the pre-amended provision of Section 4(3) of the Payment of Gratuity Act, 1972. Despite his representation, the due gratuity has not been paid in contravention of the statutory obligation as created by Section 4 of the Payment of Gratuity Act, 1972 as amended from time to time.

Similarly, the writ petitioner in W.P.(C) No.834 of 2016 namely Badal Kumar Ghosh has retired from the post of A.D.D.O. from Tripura Khadi and Village Industries Board on 30.04.2016 and he has been paid a sum of Rs.3,96,990/- in terms of the said pre-amended provision of Section 4(3) of the Payment of Gratuity Act, 1972, even though he is entitled to much larger amount in terms of the amended provision.

In W.P.(C) No.835 of 2016, the petitioner namely Raj Kumar Das has retired as the Junior Supervisor from Tripura Khadi & Village Industries Board on 30.11.2015. He has been paid the gratuity of Rs.2,41,360/- in terms pre-amended provision, even though he is entitled to much larger amount in terms of the amended provision of Section 4(3) of the Payment of Gratuity Act, 1972.

There is no dispute that the respondent No.2 is the establishment which has not been exempted from payment of the gratuity by the appropriate government in exercise of power under Section 5 of the Payment of Gratuity Act, 1972 and they have been paying gratuity to his employees having fallen due. It is also not disputed by the respondents that in view of the amendment that has been carried out in Section 4(3) of the Payment of Gratuity Act, 1972, they are under obligation to pay and gratuity to calculate the same having the maximum limit of Rs.10,000,00/-. It has been further admitted by them that the gratuity that has been paid to the petitioners has been so paid in view of the pre-amended provision of Section 4(3) of the Payment of Gratuity Act with interest.

Section 7(3) of the Payment of Gratuity Act categorically mandates the employer to pay the amount of gratuity within 30(thirty) days from the date when it would become payable to the person to whom the gratuity is paid. If the said amount is not paid in terms of Section 7(3A) within the specified period, the employer shall pay from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment on long term deposits, as that Government may, by notification specify. However, no interest may be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground. But here, the delayed payment cannot be attributed to the petitioners. Initially the respondent No.1 by filing the reply has taken the stand that it is the sole obligation of the respondents No.2 and 3 to pay the gratuity to its employees from its own resource and for that no permission is required from the respondent No.1. But subsequently the said statement has been withdrawn in view of the provisions available in the Tripura Khadi and Village Industries Act which has categorically provided that without taking prior approval from the Government, the Khadi and Village Industries Board shall not take any financial decision beyond a certain limit.

Mr. T.K. Deb, learned counsel appearing for the respondents No.2 and 3 has submitted that they have approached the government for approval for payment of gratuity in terms of the amended provision but the government has not accorded such approval and neither has the government made any communication in this regard to the respondents No.2 and 3. That is the reason why the impasse has been created.

Having regard to the submissions made by the learned counsel and the amended provisions of the Payment of Gratuity Act the respondents are directed to recalculate the gratuity of the petitioners having the maximum of Rs.10,000,00/- in view of the amended provision of Section 4(3) of the Payment of Gratuity Act and after adjusting the amount that has been already paid, the remainder of the gratuity shall be paid to the petitioners from the date on which it fell due to the date when the due would be paid with interest @8% per annum. The payment shall be made within a period of 60(sixty) days from today without fail from the date on which a copy of the order shall be made available to the respondent No.3 by the petitioners.

In the result, the writ petitions are allowed to the extent as indicated above.

There shall be no order as to costs.