The main legal point established in the judgment is that the entitlement to gratuity under a specific regulation and a general act was determined based on the fulfillment of conditions of eligibility, with the court concluding that the petitioner was entitled to claim gratuity under the Payment of Gratuity Act, 1972.

ORDER :

1. Heard Ms. D. Borgohain, learned counsel for the petitioner and also heard Mr. S. Dutta, learned senior counsel appearing for the respondents.

2. After serving for 5 years and 10 months, the petitioner who was an Officer in the Junior Management Scale-I (Assistant Manager) of the Assam Gramin Vikash Bank, submitted her resignation letter to the Chief Manager (Personnel), Assam Gramin Vikash Bank on 27.11.2017. Her resignation letter was accepted and she was released from service vide Office Order No. AGVB/RONAL/ADNN/12/68/2017-2018, dated 3.3.2018, issued by the Regional Manager. But before she was released from service, on 16.1.2018 she had submitted a representation to the Chief Manager (Personnel), Assam Gramin Vikash Bank requesting for payment of gratuity. Following her request, the Chief Manager (Personnel) wrote to the Regional Manager, Assam Gramin Vikash Bank stating that the petitioner is not entitled to gratuity as per the provision of the regulation 72(2)(d) of Assam Gramin Vikash Bank Service Regulation, 2010 (which shall hereinafter be referred to as ‘Regulation of 2010’). On 8.2.2018 through a letter the petitioner was informed by the Regional Manager that she is not entitled to gratuity. Being aggrieved by the denial of gratuity the petitioner has come before this court by filing this writ petition.

3. The case of the petitioner as submitted by her learned counsel in brief is that, in view of the provision of regulation 72(1) of the Regulation of 2010 the employees of the Bank are eligible for payment of gratuity either under the Regulation of 2010 or under section 4 of the Payment of Gratuity Act, 1972. Therefore, though the petitioner did not complete 10 years of service which is the required length of service for entitlement to gratuity under the regulation 72(2)(d) before she resigned she is entitled to the same under section 4(1) of the Payment of Gratuity Act, 1972 since she had done more than 5 years of continuous service when she tendered her resignation.

The learned counsel for the petitioner submitted that though it is true that regulation 72(1)(d) of the Regulation of 2010 provides minimum period of 10 years of continuous service as qualifying period of service for entitlement of gratuity under section 4(1) of the Payment of Gratuity Act, 1972, the period prescribed is only 5 years continuous service. And, since the regulation 72(1) of the Regulation of 2010 permits an employee to claim gratuity under either of the provisions of the two laws, the petitioner could not have been denied the benefits of gratuity.

The learned counsel further submitted that the Payment of Gratuity Act, 1972 is a special Act, therefore, it has the overriding effect over any Act or Rule or Regulation when it comes to payment of gratuity. As such, the petitioner's claim for gratuity should have been considered under section 4(1) of the same Act. The learned counsel also submitted further that the Assam Gramin Vikash Bank Service Regulations is not an act passed by the Parliament whereas, the Payment of Gratuity Act, 1972 was therefore, the provisions of the later or any rule made thereunder shall have the preeminence over the provisions of the former.

Furthermore, the learned counsel, submitted that section 14 of the Payment of Gratuity Act, 1972 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent there with contained in any enactment other than this Act or in any instrument or contract having effect by virtue or any enactment other than this Act. Therefore, by virtue of this provision also the provision of section 4(1) of the Act will have overriding effect over the provision of regulation 72 of the Regulation of 2010. Hence, the petitioner would be entitled to gratuity.

The learned counsel in support of the above submissions referred to the judgment of this court passed in the case of Assam Gramin Vikash Bank v. The Union of India, WP(C) No. 3086/2018, (2019) 5 GauLT 253.

4. Mr.