Judgment · High Court

Heard Mr. I.A. Talukdar, learned counsel for the petitioner, Mr. M. Phuk an, learned Standing Counsel of the Agriculture Department, Govt. of Assam, Mr. R.K. Talukdar, learned counsel for the respondent No. 4. Mr. M. Sarma, learned c ounsel for respondent No. 1.

By this application under Article 226 of the Constitution of India, the petitioner prayed for appropriate direction to the respondents particularly resp ondent No. 4 for release of his leave encashment as well as gratuity amount.

The writ petitioner was a Field Investigator in the department of agricu lture and was posted at Karimganj. The petitioner joined service on 21.06.1989 a nd resigned from the service on 14.07.2004. His resignation was accepted by the authority on 13.08.2004. Thereafter, the petitioner submitted a representation o n 29.03.2005 before the Director of Agriculture, Assam at Guwahati praying for g rant of leave encashment gratuity, GP fund and GIS money. Pension papers were al so forwarded. It appears that on 03.09.2005 the jurisdictional Sub-Divisional Ag riculture Officer forwarded pension proposal, proposal for granting of gratuity and unutitlised leave encashment to the Director of Agriculture. So far as gratu ity is concerned Forms No. 2 and 12 was filled-up by the petitioner and the same was forwarded by the Sub- Divisional Agricultural Officer for necessary action. The Director of Agriculture also in turn forwarded the said documents to the Ac countant General for necessary action. However, the office of the Accountant Gen eral issued a letter on 17.02.2006 holding that the petitioner is not entitled t o pension and gratuity in view of the provision of Rule 62 of the Assam Services (Pension) Rules, 1969 inasmuch as the petitioner resigned from the service. Und er Rule 62 of the Rules, resignation from public service entails forfeiture of p ast service and as such no retirement benefit is available to such person.

So far as claim of cash payment in lieu of unutilised earned leave is co ncerned, the same is covered by an Office Memorandum issued by the Finance Commi ttee on 13.03.1981. The condition precedent for granting of such cash payment is retirement either on superannuation or by way of voluntary action. It appears f rom the reading of the Office Memorandum dated 13.08.1981 that unless an employe e of the Govt. of Assam retires from service he is not entitled to the benefit o f cash payment in lieu of unutilised earned leave. Since by Rule 62 of the Assam Services (Pension) Rules, 1969 the benefit of past service are forfeited on res ignation, automatically the claim of cash payment in lieu of unutilised leave al so cannot arise. So there is no error in the order dated 17.02.2006 issue by the office of the Accountant General. The learned counsel for the petitioner then submits that although he is 5. not entitled to pension and or benefit of cash payment but his claim of gratuity ought to have been allowed by the Accountant General but by the impugned letter dated 17.02.2006 the said claim of the petitioner has also been rejected. The l earned counsel relies on the provision of Section 4(b) of the Payment of Gratuit y Act, 1972 and claims that even on resignation, the gratuity remains payable. P er contra, Mr. M. Phukan draws my attention to Section 2(e) of the said Act and submits that ’employee’ within the meaning of the said Section does not include any person holding the post under Central or State Government and as such the pr esent petitioner not being an employee within the meaning of payment of Gratuity Act, 1972 is not entitled to the benefit under the said Act. He has further dra wn my attention to the preamble of the said Act wherefrom it appears that the Ac t was made for the employees engaged in factory, mine, oil field, plantation etc . Applying the principle of a ejasdem generis Government employees cannot otherw ise be classified along with the employees within the meaning of Section 2(e) of the Payment of Gratuity Act who form a separate geners as industrial workers whe reas the State Government employees have altogether different status under the C onstitution as well as the relevant service rules holding the field.

It appears that for extending the benefit of gratuity to the employees o f the State Government there is an Office Memorandum under the Assam Services (P ension) Rules, 1969 issued on 29.04.1976 providing that payment of Death cum Ret irement Gratuity to the State Government employees upon their retirement from se rvices. Paragraph 8 of the said office memorandum deals with provisional pension as well as gratuity and the perusal of the said paragraph also indicates that c laim of gratuity is available to an employee on retirement. This scheme is known as death cum retirement gratuity and Form Nos. 2 and 12 filled-up by the petiti oner and forwarded by the jurisdictional Sub-Divisional Officer as well as the D irector , Agriculture for providing the benefit of gratuity to the petitioner is also under the said office memorandum promulgated under the Assam Services (Pen sion) Rules, 1969. In this view of the matter, the petitioner having resigned fr om service is also not entitled to the benefit of gratuity as well. On totality of circumstances no illegality, arbiteriness or perversity could have found out in the letter dated 17.02.2006 issued by the Office of the Accountant General, A ssam whereby the claim of the writ petitioner for pension, gratuity and leave en cashment was turned down. The writ petition, therefore, is devoid of merit and c onsequently the same is dismissed.

However, no order as to costs.