The main legal point established in the judgment is the validity of the exemption notification under the Payment of Gratuity Act and the entitlement to gratuity under the Bihar Pension Rules for discharged employees.

Sachcchidanand Jha and B.N.P.Singh JJ.

1. This writ petition has been filed by the sole petitioner for a direction to pay him the amount of unutilised leave salary, gratuity under the Payment of Gratuity Act, 1972 and compassionate allowance under Rule 46 of the Bihar Pension Rules without prejudice to his claim for further pension.

2. The case of the petitioner, shortly stated, is as follows. The petitioner joined the Bihar State Electricity Board (in short, the Board) as Engineer Assistant in 1963 and was posted at Patratu Thermal Power Station. In course of time, he was promoted as Electrical Assistant Engineer and thereafter Electrical Executive Engineer in 1966 and 1982 respectively and posted at different places. During his tenure as Electrical Executive Engineer at Begusarai on 7.10.1993 he was placed under suspension on charges, in the proceedings, initially, he was sought to be punished without giving him copy of the enquiry report and opportunity to file show cause. Finally, pursuant to the order of this Court in CWJC No. 11751/95 on 8.11.1996 he was given show cause notice along with copy of the enquiry report. The show cause submitted by the petitioner was not accepted and he was awarded punishment. He preferred appeal before the chairman which was also rejected. The order of punishment was passed on 28.8.1997. The appellate order was passed on 31.7.1999. In the meantime another order was passed on 19.8.1998 by which he was awarded punishment of discharge from service for other charges. It is relevant to mention here that the petitioner has challenged the said orders in CWCJ No. 859/2000 and CWJC No. 1664/2000 which are pending in this Court. The case of the petitioner is that having served the Board for about 35 years he is entitled to unutilised leave salary and other retrial dues which have not been paid to him though he was discharged from service two years ago. The petitioner claims Rs. 1,21,306.00 as unutilised leave salary/leave encashment, Rs. 1,72,706.00 as gratuity under the payment of Gratuity Act and compassionate allowance, described in the writ petition as financial relief, as per Rule 46 of the Bihar Pension Rules.

3. The case of the Board in a nutshell is that the Payment of Gratuity Act is not applicable to the employees of the Board, and being a discharged employee the petitioner is also not entitled to gratuity in terms of the Bihar Pension Rules read with Regulations 75 and 77 of the Service Regulations or unutilised leave salary. There is no dispute regarding passionate allowance under Rule 46 of the Pension Rules.

4. The dispute regarding gratuity under the Payment of Gratuity Act (hereinafter referred to as the Gratuity Act) was referred to Division Bench by order dated 29.1.2002 by a learned Single Judge before whom the case come up for hearing. During pendency of the case, in fact after the hearing was adjourned, the State Government exempted the Board from operation of the Gratuity Act with retrospective effect from 6.11.1987 in exercise of power u/s. 5(1) read with sec. 5(3) of the Act vide notification dated 15.9.2003, The petitioner thereafter challenged the notification by amendment, counter affidavits etc. were filed by the parties and the case was taken up for further hearing on 28.11.2003.

5. In view of notification dated 15.9.2003 the dispute as to applicability of the Gratuity Act has come to an end, for if the Act were not applicable, there was no question of exemption. The question of exemption arises only where the law is otherwise applicable.

6. At this stage the relevant provision of the Gratuity Act may be noticed to appreciate the point. sec. 1 (3) of the Act makes the Act applicable to,--

(a) .......... ........... .............

(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishment in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve mon