The Assam Financial Corporation Ltd. and 2 Ors v. Bhabendra Nath Sarma and 6 Ors. B

JUDGMENT & ORDER (ORAL) Date : 25-07-2023 (Arun Dev Choudhury, J)

¶1The present intra court appeal is presented against the judgment and order dated 08.04.2022 passed by the learned Single Judge in WP(C) No.3697/2020, whereby the learned Single Judge held that the respondents/writ petitioners shall be entitled for gratuity under the provisions of Payment of Gratuity Act, 1972 (hereinafter referred to as 'Act of 1972').

¶2The writ petitioners were employees under the Appellant Corporation and superannuated from service on attaining their age of superannuation in the year 2018 and 2019. They were paid gratuity in terms of the Assam Financial Corporation (Payment of Gratuity to Employees) Regulation, 1964 (hereinafter referred to as Regulation, 1964). However, the grievances of the petitioners were that they are entitled for gratuity in terms of section 4(5) of the Act of 1972 and same has been denied to them.

¶3The respondent Corporation took a stand that the petitioners have been paid the gratuity in terms of the Regulation 1964 read with Assam Financial Corporation Staff Regulation 2007 (hereinafter referred to as Regulation 2007). It was the further case of the Corporation that as the Appellate Corporation is a statutory authority being created under State Financial Corporation Act, 1951 (herein after referred to as 'Act of 1951') and the Regulation 1964 and Regulation 2007 were enacted in exercise of Page No.# 4/5 the power conferred thereon. The same are having statutory force and accordingly, the petitioners being employees of the Corporation, they are entitled for gratuity in terms of the Regulation framed by the Corporation and not under the Act of 1972.

¶4The learned Single Judge relying on section 14 of the Act of 1972 came to a conclusion that in view of the non-obstante provisions that the payment of gratuity to the petitioners could be governed by the Act of 1972 and not by the two Regulations i.e. Regulation 1964 and Regulation 2007 of the Act of 1951.

¶5Mr. R.K. D. Choudhury, learned counsel for the appellants relying on the decision of a Coordinate Bench passed in WA No.275/2021 (Assam Gramin Vikash Bank vs. Smt. Bobita Gupta) argues that the Act of 1951, being a special Act, shall have overriding effect upon the Payment of Gratuity Act. The Regulation, 1964 being framed under Rule making power provided in the Act of 1951, such regulation shall have also similar overriding effect.

¶6The decision rendered in Bobita Gupta (supra), the regulation providing payment of gratuity to the employees of the Bank clearly stipulates that an officer or employee shall be eligible for payment of gratuity as per provision of the Act of 1972 or as per sub regulation 2 of Regulation 1972 framed by the Bank, whichever is higher. Therefore, such a provision in the regulation of the Bank is in conformity with the section 4 (5) of the Act of 1972 and therefore, such decision is of no help in determining the issue Page No.# 5/5 involved in the present lis.

¶7The Hon'ble Apex Court in the case of Y.K. Singla vs. Punjab National Bank and Others reported in (2013) 3 SCC 472 , laid down the following proposition: I. The mandate of section 14 of the Act of 1972 would have overriding effect with reference to any inconsistency in any other provision or instruction relating to payment of gratuity. II. Sub-section 5 of section 4 of the Act of 1972 permits an employee to be regulated, for the purpose of gratuity, under an alternative provision/arrangement but said sub section assures that the employee should receive better terms of gratuity.

¶8In view of the aforesaid settled proposition of law, this Court is of unhesitant view that the learned Single Judge has rightly allowed the writ petition.

¶9Accordingly, the present appeal stands dismissed being devoid of any merit.

¶10Parties to bear their own cost.

JUDGE CHIEF JUSTICE Comparing Assistant

PageoNo.#o1/5 GAHC010112762022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/260/2022ooooooooo THEoASSAMoFINANCIALoCORPORATIONoLTD.oANDo2oORS.o VITTIYAoBHAVAN,oMD.oSHAHoROAD,oPALTANBAZAR,oGUWAHATI-781008,o ASSAM,oREPRESENTEDoBYoITSoMANAGINGoDIRECTOR. 2:oTHEoMANAGINGoDIRECTOR oASSAMoFINANCIALoCORPORATIONoLIMITED oVITTIYAoBHAVAN oMD.oSHAHoROAD oPALTANBAZAR oGUWAHATI-781008 oASSAM 3:oTHEoTRUSTEE oASSAMoFINANCIALoCORPORATION oGROUPoGRATUITYoACCUMULATIONoFUND oVITTIYAoBHAVAN oMD.oSHAHoROAD oPALTANBAZAR oGUWAHATI-781008 oASSAo VERSUSo BHABENDRAoNATHoSARMAoANDo6oORS.oBo S/OoLT.oMAHENDRAoNATHoSARMA,oH.NO.o10,oBYEoLANEoNO.o2,o(BHASKARo KALITAoPATH),oSHANTINAGAR,oKAHILIPARA,oGUWAHATI-781019,oP.S.o DISPUR,oDIST.oKAMRUPo(M),oASSAM,oPIN-781019. 2:NRIPENDRAoNATHoBARMAN oS/OoLT.oMOTILALoBARMAN oKALYANINAGARoJENAKIoPATH oH.oNO.o62 oKAHILIPARA Page No.# 2/5 GUWAHATI DIST. KAMRUP (M) ASSAM PIN-781019. 3:SUBHAS SARMAH S/O LT. KHAGESWAR SARMAH VILL BHATTAPARA P.S. AZARA DIST. KAMRUP (M) ASSAM PIN-781017. 4:DEEPAK KR. DAS S/O LT. PURNA CH. DAS H. NO. 62 SOUTH SARANIA P.O ULUBARI P.S. PALTANBAZAR DIST. KAMRUP (M) GUWAHATI-781007 ASSAM 5:THE STATE OF ASSAM DEPTT. OF PUBLIC ENTERPRISES THROUGH THE COMMISSIONER AND SECRETARY OF PUBLIC ENTERPRISES DISPUR GUWAHATI-6 6:THE COMMISSIONER AND SECRETARY O THE GOVT. OF ASSAM DEPTT. OF FINANCE DISPUR GUWAHATI-6. 7:LIFE INSURANCE CORPORATION OF INDIA GUWAHATI GUWAHATI DIVISIONAL OFFICE JEEVANPRAKASH FANCY BAZAR GUWAHATI-78100 Advocate for the Petitioner : MR. R K D CHOUDHURY Advocate for the Respondent : SC, FINANCE Page No.# 3/5 BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY