Petitioners are retired officers of the State Bank of India. In the Writ Petition, they are aggrieved by the fixation of 24-5-2010 as the date from which the amendments to the Payment of Gratuity Act, 1972, effected by the (Amendment) Act, 2010 were made applicable. The contention of the petitioners in the Writ Petition is that, pursuant to the 6th Pay Commission Recommendations, the maximum limit of gratuity was enhanced to Rs. 10 lakhs, with retrospective effect from 1-1-2006, for the Central Government Employees through Ext. P1 Office Memorandum dated 2-09-2008. It is the specific case of the petitioners that, taking cue from the said Office Memodrandum issued in respect of the Central Government Employees, the respondent Bank had represented before the Central Government, and also the Minister concerned, for extension of similar benefits to the bank employees as well. They rely on Ext. P4 communication from the Minister of State for Labour and Employment, Government of India, which assured the General Secretary of the All India Bank Officers Confederation that their suggestions for implementation of the revision from 1-1-2006, at par with Government employees who got this benefit from that date, would be kept in mind while effecting amendments to the Payment of Gratuity Act, 1972 to revise the ceiling from 3.5 lakhs to Rs. 10 Lakhs. It is the case of the petitioners that, notwithstanding the representations by them, as also by the Bank, when the Amendment Act was subsequently passed, the amendment that revised the ceiling limit from Rs. 3.5 lakhs to Rs. 10 lakhs was made applicable only prospectively, with effect from 24-5-2010. They are, therefore, aggrieved to the extent that the Amendment Act did not make the revision of the ceiling limit retrospective from 1-1-2006, so as to create a parity with the employees of the Central Government, who had been extended the benefit from that date. In the Writ Petition, the prayers are for a declaration, that the appointment of 24-5-2010 as the date from which the Payment of Gratuity (Amendment) Act is to come into force, is arbitrary and illegal. There is a further prayer for a direction to the respondents to grant the benefit of enhanced gratuity of Rs. 10 lakhs with effect from 1-1-2006.
2. A counter affidavit has been filed on behalf of the respondents wherein they place reliance on the provisions of the State Bank of India Employees' Gratuity Fund Rules and Regulations, 1991, in terms of Rule 7 of which, the gratuity payable to the employees of the respondent bank are in terms of the Payment of Gratuity Act. It is stated that the petitioners, being employees of a Public Sector Bank, enjoy separate service conditions and Rules and they cannot compare their service with that of the Central Government employees for the purpose of claiming parity in the ceiling provisions. It is also pointed out that the payment of gratuity being an employer's liability, any enhancement in the ceiling for payment of gratuity would have to be done keeping in view the over all economic conditions and the particular hardship that would be caused to an employer. Responding to the contention of the petitioners, with regard to the representations filed before the Central Government and the Minister, the respondent Bank would submit that they had only forwarded the representations received from their employees and it continued to be their stand that the employees would be entitled only to such amount of gratuity as was payable in terms of the Payment of Gratuity Act. The stand taken by the 3rd respondent in its counter affidavit is more or less on the same lines as the stand taken by the first and second respondents.
3. I have heard the learned Sr.Counsel Sri. K.Ramakumar appearing on behalf of the petitioners and the learned Sr. Counsel Sri. George Thomas appearing on behalf of respondents 1 and 2 . I have also heard the Assistant Solicitor General Sri. N. Nagaresh appearing for the 3rd respondent.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that this is a case where the petitioners are essentially aggrieved by the Amendment Act of 2010 that effects a revision of the ceiling limit provided under the Payment of Gratuity Act, from the maximum limit of Rs.3.5 lakhs to an amount of Rs.10 lakhs, to the extent that the said amendment is not made retrospective with effect from 1-1-2006. As already noted, the amendment introduced by the Amendment Act, 2010 was to apply prospectively with effect from 24-5-2010. The contention of the petitioners is that the Central Government had, through Ext.P1 Office Memorandum, while implementing the recommendations of the 6th Pay Commission, extended the benefit of enhanced gratuity to its employees with effect from 1-1-2006. It is the case, therefore, that to the extent that the Amendment Act of 2010 makes the revision of the ceiling limit of payment of gratuity prospective with effect from 24-5-2010 and not retrospective with effect from 1-1-2006, a discrimination has been meted out to the petitioners, as against the employees under the Central Government who are similarly placed. In dealing with the said contention, I must take note of the fact that the amendments brought about by the Amendment Act of 2010, by themselves, do not in any way discriminate between the two sets of employees for the purpose of the Payment of Gratuity Act, 1972. As a matter of fact, the amendment, which had the effect of revising the ceiling limit from Rs. 3.5 lakhs to Rs.10 lakhs, was made applicable to all those who were covered under the Payment of Gratuity Act, 1972 with effect from 24-5-2010. The discrimination that is alleged by the petitioners is basically on account of the fact that the Central Government had chosen, de hors the amendment in the Payment of Gratuity Act, and independent thereof, to enhance the limit of gratuity payable to its employees from Rs.3.5 lakhs to Rs.10 lakhs with effect from 1-1-2006. This was purportedly done in implementation of the recommendations of the 6th Pay commission. Thus, it is on account of the actions of a particular employer, who chose to grant better benefits to its employees than what they could have availed of under the Payment of Gratuity Act, 1972, that the alleged discriminatory situation arose in this case. In my view, when the Payment of Gratuity Act itself provides for the granting of better benefits by any particular employer to the employees under him, the mere fact that a particular employer has chosen to grant superior benefits by way of gratuity, cannot be a reason to allege that there was a discrimination between those employees and employees of another employer who chose to adopt the provisions of the Payment of Gratuity Act while discharging his gratuity liability to his employees. In taking this view, I am fortified by the decision of the Supreme Court in Shitla Sharan Srivastava and Others v. Government of India and Others - AIR 2001 SC 2540 wherein in a similar situation arising consequent to the Amendment effected in 1998 of the Payment of Gratuity Act, it was held as follows:
“6. It is not disputed that the claim made in these petitions is in respect of the employees who retired prior to 24-09-1997. The respondent-Bank has its own service rules/schemes governing its employees. The 5th Pay Commission recommendations are in relation to the Central Government employees. A mere speech made by the Finance Minister without taking further steps to give the benefit of enhanced ceiling limit of gratuity amount specifically in the case of the respondent-Bank is of no help to the petitioners. The service rules governing employees of RBI/IDBI and Central Government employees are different. The Act was amended in 1998 fixing the ceiling of payment of gratuity at Rs. 3.5 lakhs effective from 24-09-1997. Assuming that the respondent-Bank had made profit, the claims of the petitioners cannot be allowed unless there is a sustainable foundation for such a claim. The respondent- Bank has pointed out that the officers of the Bank are governed by the pension rules and are paid gratuity, only in terms of the Act while the compassionate gratuity is a separate scheme to provide succour to the bereaved families of the officers who die in harness and the effective date of revision is fixed by the Executive Committee of the Central Board at Rs. 1 lakh with effect from 1-1-1986, Rs. 2.5 lakhs with effect from 1-4-1995 and Rs. 3.5 lakhs with effect from 1-1-1996. The compassionate gratuity, as stated above, is different from the gratuity amount payable under the Act. Office memorandum dated 27-10-1997 relied upon by the petitioners categorically provides that those orders apply to Central Government employees governed by CCS (Pension) Rules, 1972. Further, the 5th Pay Commission recommendations are applicable to Central Government employees only and are not made applicable to the employees of the respondent-Bank. Thus, looking to the various aspects, we conclude that these petitions are devoid of merits, hence they are dismissed. No order as to costs”
7. It may also be relevant to note in this case that the stand of the respondent-Bank is that it intends to adhere to the provisions of the Payment of Gratuity Act for discharging its gratuity liability in respect of its employees and this fact is borne out by the continued operation, without amendment, of the SBI Employees Gratuity Fund Rules and Regulations, 1991 which obliges the Bank to pay gratuity to its employees only in terms of the Payment of Gratuity Act. While the petitioners would submit, based on the judgment dated 25.03.2010 of the Madras High Court in the case of Neyveli Lignite Corporation v Appellate Authority and Ors, that the respondent- Bank should be held to its assurance that it would take up the matter with the Central Government for the purposes of extending the enhanced benefits under the Payment of Gratuity Act with retrospective effective from 1-1-2006, I am unable to find any document or other material that would enable the petitioners to insist on such a course of action from the respondent-Bank. In other words, the petitioners cannot trace their right to any statute or irretractable representation on the part of the Bank for the purposes of insisting on the Bank's adherance to the said assurance. No doubt, it is open to the petitioners to take up the matter with the respondent-Bank for the purposes of considering their claim for extension of the enhanced benefits under the Payment of Gratuity Act with effect from a retrospective date. These efforts of the petitioners would, however, have to be in the realm of negotiations between the employees and the bank and cannot be through a direction from this Court to the respondent-Bank in proceedings under Article 226 of the Constitution of India. Thus, leaving open the rights of the petitioners to make a representation before the respondent-Bank for redressal of their grievances with regard to the extension of enhanced benefits under the Payment of Gratuity Act, I dismiss this Writ Petition as devoid of merit.
ani/ Sd/-
A.K. JAYASANKARAN NAMBIAR JUDGE xxx