Janak Prasad Singh v. Bihar State Electricity Board

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 October 1993 he was placed under suspension on charges. In the proceeding, 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 C.W.J.C No. 11751 of 1995 on 8 November 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 August 1997. The appellate order was passed on 31 July 1999. In the meantime another order was passed on 19 August 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 C.W.J.C No. 859 of 2000 and C.W.J.C No. 1664 of 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 retiral dues which have not been paid to him though he was discharged from service two years ago. The petitioner claims Rs. 1,21,306 as unutilised leave salary/leave encashment, Rs. 1,72,706 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 compassionate 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 January 2002, by a learned Single Judge before whom the case came 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 November 1987 in exercise of power under S. 5(1), read with S. 5(3) of the Act vide notification, dated 15 September, 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 November 2003.

5. In view of notification, dated 15 September 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. Section 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 months;

There is an enactment titled the Bihar Shops and Establishments Act, 1956, in the State of Bihar and the case of the Board has been that it is not a shop or establishment within the meaning of the Act and therefore it does not fall within the purview of the Gratuity Act. In State of Punjab v. Labour Court [1980 (1) L.L.N 39], the Apex Court giving an expanded interpretation to the applicability clause held that S. 1(3)(b) applies to every establishment within the meaning of any law for the time-being in force applicable to establishment in a State. In other words, in order to attract the mischief of the Gratuity Act, the test is not that it should be a shop or establishment within the meaning of the law relating to shops and establishments but any law in force in the State. The following observations may usefully be quoted, in Para. 4, at page 41:

“… Section 1(3)(b) applies to every establishment within the meaning of any law for the time-being in force in relation to establishments in a State. Such an establishment would include an industrial establishment within the meaning of S.(2)(ii)(g) of the Payment of Wages Act. . .”

Accordingly, in the cited case, as the Hydel Upper Bari Doab Construction Project was an industrial establishment within the meaning of Payment of Wages Act, 1936, the Gratuity Act was held to be applicable to it.

7. Section 2(g) of the Payment of Wages. Act defines “industrial or other establishment” to mean, among other things, “establishment in which any work relating to construction, development, or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation, or supply or water or relating to the generation, transmission or distribution of electricity or any other form of water is being carried on”. From a bare reading of the definition it is clear that being engaged in activities relating to generation, transmission and distribution of electricity, the Board is an “industrial or other establishment” within the meaning of Payment of Wages Act and the said Act is therefore applicable to it. Understood in the context of the above decision of the Apex Court, there is thus no doubt that the Gratuity Act would be applicable to the Bihar State Electricity Board. It is an “industrial or other establishment” within the meaning of Payment of Wages Act and hence an “establishment” by virtue of the extended definition under the Gratuity Act.

8. But, as mentioned above, it has been exempted by the State Government from operation of the Act with retrospective effect under notification, dated 15 September 2003. The notification reads as under:

“In exercise of the power conferred by the Payment of Gratuity Act, 1972, Ss. 5(1) and 5(3) the Governor of Bihar is pleased to exempt the operation of the said Act to the Bihar State Electricity Board since 6 November 1987 retrospectively. This notification will not affect the interest of any person prejudicially.”

The power of exemption is contained in S. 5 of the Act and the same may also be quoted, so far as relevant, as under:

“Power to exempt.—(1) The appropriate Government may, by notification, and subject to such conditions as may be specified in the notification, exempt any establishment, factory, mine, oilfield, plantation, port, Railway company or shop to which this Act applies from the operation of the provisions of this Act, if, in the opinion of the appropriate Government, the employees in such establishment, factory, mine, oilfield, plantation, port, Railway company or shop are in receipt of gratuity or pensionary benefits not less favourable than the benefits conferred under this Act.

(2) ***

(3) A notification issued under Sub-sec. (1) or Sub-sec.(2) may be issued retrospectively a date not earlier than the date of commencement of this Act, but no such notification shall be issued so as to prejudicially affect the interest of any person.”

9. It is manifest that entitlement of the petitioner to gratuity under the Gratuity Act turns on the validity or otherwise of the exemption notification, dated 15 September 2003. If it is a valid piece of subordinate legislation the establishment of the Board having been exempted from operation of the Gratuity Act the petitioner would not be entitled to any gratuity under the Act; else, the Act being otherwise applicable to the Board the petitioner would be entitled to the same. On the resumed hearing of the case, accordingly, submissions of the counsel for the parties centre around the legality of the exemption notification, dated 15 September 2003.

10. It was submitted on behalf of the petitioner that the right to receive gratuity under the Gratuity Act accrued to him in 1998 itself and it cannot be taken away by a subsequent exemption as even in terms of S. 5(3) of the Gratuity Act, the exemption cannot prejudicially affect interest of any individual. It was submitted that the rights of the parties are to be decided with reference to the pleadings as on the date of institution of the proceeding unaffected by subsequent happenings. Reliance was placed on Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256 : A.I.R 2002 S.C 665]. It was submitted that denial to gratuity under the Gratuity Act amounts to forfeiture which cannot be done without giving opportunity of hearing to the person. In the instant case no proceeding was ever initiated against the petitioner or opportunity given for withholding the gratuity. Reference in this regard was made to Gorakhpur University v. Dr. Shitla Prasad Nagendra [2001 (4) L.L.N 9].

11. It is true that rights of the parties are ordinarily governed by the state of affairs as existing on the date of institution of the suit or proceeding but it is not correct to say that subsequent events cannot be taken into account while considering the claim of the parties. Even in the case relied upon on behalf of the petitioner it was held in no uncertain terms that the Court has power to take note of and mould relief, as appropriate, on fulfilment of three conditions:

(a) relief as originally claimed has become inappropriate or impossible to grant;

(b) taking note of such events or changed circumstances would lead to early end of the litigation and result in complete justice being done; and

(iii) subsequent events are brought to notice of Court promptly and in accordance with rules of procedure to ensure that opposite party is not taken by surprise.

12. The aforesaid case arose from an eviction suit. The facts of the case were that decree of eviction against the tenant stood confirmed by the High Court in second appeal. At this stage the Urban Development Authority of Haryana passed an order recalling the allotment of the suit premises in favour of the plaintiff-landlord who had filed appeal before the appellate authority and succeeded. The Court observed that the relief granted by the entire hierarchy of Courts including High Court, could not be upset on basis of doctrine of eviction by paramount title. It would thus appear that an altogether different issue was involved in that case and the ratio thereof has little application in the present case. The present case is one of statutory exemption. As seen above, S. 5(3) the Gratuity Act itself contemplates making exemption retrospective. Only two safeguards are provided to the employees:

(a) that the gratuity or pensionary benefit already available to the employees are not less favourable than the benefit conferred by the Gratuity Act and

(b) that the retrospective exemption should not prejudicially affect interest of any person.

13. Thus, in our opinion, the main question to be decided in the present case is whether the pension/gratuity benefits available to the employees of the Board under the Bihar Pension Rules, read with Service Regulation, 1976, are less favourable than die benefits available under the Gratuity Act. Before considering the question we may reject the submission advanced on behalf of the petitioner that the exemption amounts to forfeiture which cannot be done without initiating any proceeding and/or opportunity of hearing to the person concerned. It is to be kept in mind that the denial of gratuity under the Gratuity Act is not by way of punishment—it is rather the consequence of exemption under a statutory provision. So far as the Bihar Pension Rules/Service Regulations are concerned, eternal of gratuity thereunder is the result of punishments including discharge from service on charges in separate departmental proceedings which the petitioner has separately challenged and his writ petitions are pending.

14. It is true that gratuity is not a bounty paid to the employee on the sweetwill or whim of the employer. Nevertheless being creature of statute the entitlement would depend on the fulfilment of conditions laid down in the statute. It is also true that but for the exemption notification under S. 5(1), read with S. 5(3) of the Gratuity Act, the entitlement of the petitioner to, gratuity would be governed by the Gratuity Act and if that were so, the same would not be liable to be curtailed or done away with, except in the manner laid down in the Act. The provisions of the Bihar Pension Rules, otherwise applicable, read with the Service Regulations are materially different and it is thus clear that the question as to applicability of the Act is of vital concern to the petitioner, but then it would boil down to the same question as to whether exemption notification is in accordance with law or not. If the notification is a valid piece of subordinate legislation it would follow that the petitioner would not be entitled to gratuity under the Gratuity Act; in stead, his entitlement would be worked out under the relevant provisions of the Bihar Pension Rules read with the Service Regulation whereunder being a discharged employee he is not entitled to gratuity.

15. As seen above the State Government is empowered to exempt by notification any establishment, etc., from the purview of the Gratuity Act if in the opinion of the appropriate Government the gratuity and pensionary benefits available to the employees of such establishment, etc., are not less favourable than the benefits conferred under the Act. Such exemption may be made retrospective but not so as to prejudicially affect the interest of person or persons. Where there is no infringement of these two safeguards the employee cannot successfully assail the decision to exempt the establishment. The expression “in the opinion” occurring in S. 5(1) leaves little room for doubt that grant of exemption is dependent on the satisfaction of the appropriate Government with which this Court cannot interfere, as if sitting in appeal, in writ jurisdiction.

16. Before coming to the moot question as to whether the pension and gratuity benefits otherwise available to the employees of the Board are less favourable than those available under the Gratuity Act it would be appropriate to state that in the past and at present the Board has been paying gratuity to its employees under the Bihar Pension Rules adopted in the case of officers right from inception of the Board in 1958 and in the case of workmen from November, 1987, as a result of tripartite agreement between the parties.

17. Though not so relevant in the present case, as the petitioner is “an officer of the Board” within the meaning of the Service Regulations and not a workman, it may be mentioned that the workmen were earlier being paid gratuity in terms of the Payment of Gratuity Act and there was no facility of payment of monthly pension to them. It was on account of their persistent demand raised through the representative Employees Union that the Board ultimately agreed to pay monthly pension by adopting Bihar Pension Rules which also has a package for payment of gratuity to the employees (under rule 27 of the Pension Rules, Pension includes Gratuity). Thus from 1987 onwards the Board is paying gratuity to all its officers and workmen in accordance with the provisions of the Pension Rules.

18. In the letter addressed by the secretary to the Board, dated 9 September 2003, which finally clinched the issue with the State Government leading to issuance of the exemption notification, the relevant facts were stated with reference to four charts illustrating how pension and gratuity benefits available to the officers and the employees of the Board under the Bihar Pension Rules are not less favourable than those conferred by the Gratuity Act. Though a number of affidavits have been filed on behalf of the petitioner, no attempt has been made to find error in the relevant statements and/or the charts. For example, it has been stated that S. 4 of the Gratuity Act provides for a minimum qualifying period of five years of continuous service (except in the case of death or disablement) whereas under the Bihar Pension Rules there is no minimum qualifying period for death-cum-retirement gratuity. The maximum ceiling of amount of gratuity both under the provisions of Gratuity Act and the Bihar Pension Rules is the same, i.e, 3.5 lakhs. Payment of Gratuity under the Gratuity Act is one time payment to the employees of their heirs whereas under the Bihar Pension Rules, apart from one time payment of gratuity, the retired employee gets regular monthly pension till their life time and, further, in case of his death, family pension to the dependent family members. The pension package available under the Bihar Pension Rules provides a better support system to the retired officer/employees and their dependents unlike the benefits conferred by the Gratuity Act.

19. Even in terms of the actual monetary benefits gratuity under the Bihar Pension Rules to the employees and officers of the Board are more favourable compared to the gratuity payable under the Gratuity Act. The stand of the Board has been explained with the help of four charts—two of them for workmen and officers each on the basis of lowest and highest payable pay-scale. The Chart with respect to officers worked out on the basis of minimum pay-scale is enclosed as Annexure II(c) to the aforesaid letter of the Secretary while the chart with respect to officers drawing maximum pay has been enclosed as Annexure II(d) to the letter. It would be useful to refer to the relevant charts so as to make them part of the judgment, as under:

“Comparative Statement of Benefits Admissible under Payment of Gratuity Act, 1972, vis-a-vis under G.P.F-cum-Pension Scheme adopted by the Board of Sri “C” section officer

Benefit under Gratuity Act, 1972 Benefit under Pension Rules adopted by the Board (A) Short term benefit: (A) Short term benefit: Gratuity Gratuity Pay Rs. 14,000 Pay Rs. 14,000 D.A at 43 per cent Rs. 6,020 D.A at 43 per cent Rs. 6,020 Emolument Rs. 20,020 Emolument Rs. 20,020 Rs. 4,27,350 Amount of Gratuity 20,020 × 16.5 = Rs. 3,30,330 (b) Pension Rs. 10,010 per month (including D.A Rs. 3,010) But limited to Rs. 3,50,000 (c) Commuted value of pension (if 40 per cent of pension is commuted) i.e Rs. 2,800 × 125.52 = Rs. 3,51,456 (d) and after commutation of pension balance payable amount of pension Rs. 4,200 per month Rs. 3,010 per month Rs. 7,210 per month Thus the employee gets only one time benefit of Rs. 3,50,000 and nothing else in future from the Board. Thus the employee gets a sum of Rs. 6,88,996 by way of one time payment with facilities of Monthly Pension and D.A thereon payable by the Board. (B) Long term, benefit (Recurring income) (B) Long term benefit (Recurring income) If whole amount is invested in bank for 15 years. Interest on Rs. 3,50,000 If the whole amount, i.e Amount of gratuity : Rs. 3,30,330 Amount of commutation: Total is invested in bank for 15 years. Thus recurring income on account of Int. on above amount Rs. 4,545 Add. Monthly Pension Rs. 4,200 Thus the employee has at best a monthly income of Rs. 2,335 per month even if he invest the entire amount of Gratuity in bank (excluding commuted portion) Rs. 2,800 and D.A upto 15 yrs. Total Note— After 15 Yrs. Full Pension & DA Rs. 10,010 per month Monthly Int. on Investment: Total Thus the employee gets an assured income of Rs. 11,755 for 15 Yrs. and also gets his full pension restored after 15 Yrs. making his income again Rs. 14,555 per month.

Assumption:—

(i) Sri C joined the Board on the post of Section Officer on 15 May 1964.

(ii) He did not get promotion but granted S.G and SSG scale during the service and retired on 30 June 2001.

(iii) His basic pay on 1 July 2000 was Rs. 14,000 (including three stagnation increment) in the pay-scale of Rs. 6825 - 225 - 7095 - 275-13175.

(iv) D.A has been taken at 43 per cent only.

(v) Rate of Interest on Investment has been taken as 8 per cent per annum.

Comparative Statement of Benefits admissible under Payment of Gratuity Act, 1972, vis-a-vis under G.P.F-cum-Pension Scheme adopted by the Board of Sri “D” Engineer in-chief

Benefit under Gratuity Act, 1972 Benefit under Pension Rules adopted by the Board (A) Short term benefit: (A) Short term benefit: Gratuity Gratuity Pay Rs. 21,400 D.A at 43 per cent Rs. 9,202 Pay Rs. 21,400 D.A at 43 per cent Rs. 9,202 Emolument Rs. 30,602 Amount of Gratuity 30602 × 16.5 = Rs. 5,04,933 but limited to Rs. 3,50,000 (b) Pension Rs. 15,301 per month (including D.A Rs. 4,601) But limited to Rs. 3,50,000 (c) Commuted value of if 40 per cent of pension is commuted i.e, Rs. 4280 × 125.52 = Rs. 5,37,226 (d) and after commutation of pension also balance payable amount

Rs. 6,420 per monthD.A @ 43%Rs. 4,601 per month Total Rs. 11,021 per month Thus the employee gets only one time benefit of Rs. 3,50,000 and nothing else in future from the Board. Thus the employee gets a sum of Rs. 8,98,247 by way of one time payment with facilities of Monthly Pension and D.A thereon payable by the Board. (B) Long Term Benefit (Recurring Income) (B) Long Term Benefit (Recurring Income) If whole amount is invested in bank for 15 years interest on Rs. 3,50,000 3,50,000 × 8 = Rs. 2,333 per month 1200 If the whole amount, i.e, Amount of Gratuity : Rs. 3,50,000 Amount of Commutation: Rs. 8,87,226 Total Rs. 8,87,226 is invested in bank for fifteen years Int. on above amount of Rs. 8,87,226 = 8,87,226 × 8/1200 =Rs. 5,915 per month The recurring income on account of Int. on above amount Rs. 5,915 Add. Monthly Pension Rs. 6,420 (excluding commuted portion Rs. 4,601 Rs. 2,800 and D.A upto 15 yrs Total Rs. 16,936 Note:— After 15 Yrs. Full Pension and DA Rs. 15,301 per month Add Monthly Int. on Investment: Rs. 5,915 per month Total Rs. 21,216 Thus the employee has at best a monthly income of Rs. 2,333 per month even if he invest the entire amount of Gratuity in bank Thus the employee gets an assured income of Rs. 16,936 for 15 Yrs. and also gets his full pension restored after 15 Yrs. making his income again Rs. 21,216 per month

Assumption:

(i) Sri D joined the Board on the post of AEE on 15 May 1964.

(ii) He was promoted to the post of EEE, ESE, CE and lastly to the post of Eng.-in-Chief and superannuated on 30 June 2001.

(iii) His basic pay on 1 July 2000 was Rs. 21,400 in the pay-scale of Rs. 20900-500-21400-600-23800.

(iv) D.A has been taken at 43 per cent only.

(v) Rate of interest on investment has been taken as 8 per cent per annum.”

20. As stated above, no attempt was made on behalf of the petitioner to find error in the calculation shown in the aforesaid charts. Conclusion therefore is irresistible that the pension/gratuity benefits available to the officers (also workmen) if not more favourable, are not less favourable than those available to them under the Gratuity Act and therefore we have no hesitation in holding that there is no violation of the condition laid down in S. 5(1) of the Gratuity Act.

21. The second condition that the exemption should not prejudicially affect the interest of the person is relevant only in the context of retrospective exemption. It is relevant to mention here that prior to 24 May 1994 gratuity under the Gratuity Act was not payable to all categories of employees, and it was limited to employees in the particular salary group. The ceiling was done away with by amendment vide Act 34 of 1994 and therefore the claim of the petitioner, if any, cannot relate back prior to 24 May 1994. On that date, undisputedly, two departmental proceedings were pending against him, in both of them punishment were awarded in the second one punishment being discharge from service. The petitioner has separately challenged the validity of the punishments in C.W.J.C No. 859 of 2000 and C.W.J.C No. 1664 of 2000 which are pending. Question of any so called interest of the petitioner being prejudiciaify affected by the exemption has to be considered in the light of these facts.

22. Section 4 of the Gratuity Act lays down the entitlement of gratuity to an employee. Under sub-section (1) gratuity is payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-on his:

(a) superannuation; or

(b) retirement or resignation; or

(c) death or disablement due to accident or disease.

The section is hedged in by provisos which we do not propose to notice in this case. Suffice it to say that in none of the clauses/provisos a person who has been removed from service by way of disciplinary action has been held entitled to gratuity.

23. Clause (xxxiii) of regulation 2 of the Service Regulations, 1976, framed under S. 79(c) of the Electricity (Supply) Act, 1948 defines “Officer of the Board” to include members of the various Engineering Cadres of the Board including junior engineers, foremen, head foremen, controllers and junior chemists, members of the Accounts, Administrative and Personnel Services of the Board, Assistant Law Officers and above and all employees in the (then) pay-scale of Rs. 580-975 and above and doing either wholly or partially supervisory work. The petitioner being member of the Engineering Cadre and in the rank of Executive Engineer at the material time he was undoubtedly an officer of the board covered by the Service Regulations, regulation 75 of the Regulations provides for terminal benefits to permanent or temporary employees of the Board. It lays down that when a permanent employee or a temporary employee resigns or leaves the service of the Board voluntarily after due notice, where required, or his services are terminated by the Board or any competent authority except in the circumstances mentioned in sub-regulations 73 (1)(a)(vii) and (viii), he shall be eligible for payment of—

(a) proportionate pension-if he has at least 10 years of qualifying service for the purpose of pension under the Pension Rules or any orders of the Board, if the employee had opted for the Pension Scheme;

(b) full amount of C.P Fund Standing to his credit, if he is under the Contributory Provident Fund Scheme;

(c) proportionate amount of gratuity;

(d) proportionate amount of any other terminal benefits admissible.

Regulation 77 which specifically deals with gratuity lays down that gratuity is payable to an employee in accordance with any statute or separate Rules/Regulations governing payment of pension and gratuity framed by the Board. In terms of the proviso appended to the said Regulation gratuity is payable after an employee has rendered five years of satisfactory service whether in permanent, temporary or work-charged establishments, except when an employee has been dismissed from service after departmental proceeding or removed from service on grounds of moral turpitude. As indicated above, though gratuity is not bounty to be paid on the whim of the employer, being creature of the statute, the entitlement depends on fulfilment of conditions as prescribed in the relevant statute. The Gratuity Act not being applicable it would follow that the petitioner would be governed by the Bihar Pension Rules read with the Service Regulations. Having been discharged from service as a measure of punishment in a dennrtn proceeding on charges the petitioner cannot be held entitled to gratuity under the Pension Rules.

24. It was submitted that the exemption notification, dated 15 September 2003, is a colourable exercise of power to deprive the petitioner of his right to receive gratuity under the Gratuity Act. The submission is not borne out by the records. From the documents enclosed with the counter-affidavit of the Board it appears that proposal for exemption was pending with the State Government since 8 June 2001. After the Board sent the proposal on 29 August 2001 comments of the Employees' union was sought by the Department. The union sent its comments opposing the proposal on 8 September 2001. On 26 February 2002 the department informed the Board about the objection of the Employees' union. The matter appears to have remained dormant for quite some time until 9 September 2003 when reminder was sent by the Board setting out the rationale for exemption upon consideration of which on 15 September 2003 the impugned notification was issued.

25. It was submitted that the notification was issued at the level of the Labour Commissioner who is an ex officio Inspector notified in terms of S. 7A of the Gratuity Act and therefore has no binding effect. On behalf of the respondents it was stated that the matter was dealt with at the Government level in the Labour Department for the simple reason that the subject falls within its domain in terms of allocation of business under the Rules of Executive Business, 1979. Reference was made to relevant entries of the list of subjects allocated to the Labour, Employment and Training Department, namely, Entry No. 5 (wages of labour), Entry No. 11 (welfare of Labour) etc. The Labour Department, in the circumstances, it was submitted, was certainly competent to deal with the aforesaid exemption proposal.

26. As a matter of fact, it appears from the relevant file made available by the Standing Counsel that the decision to exempt the Board from the operation of the Gratuity Act was not taken at the level of the Labour Commissioner. No doubt the Labour Commissioner submitted his notes but decision was taken finally by the Minister Incharge. In this regard it was submitted that the Minister merely approved the notings of the Labour Commissioner without application of mind. It is not possible to accept this submission in view of the decisions in R. Chitralekha v. State of Mysore A.I.R 1964 S.C 1823 and Shamsher Singh v. State of Punjab [(1974) 2 SCC 831 : A.I.R 1974 S.C 2192]. It was not necessary for the Minister to record self-contained order of his own. His mere endorsement tantamounts to acceptance of the notings the whole of which in the eye of law would be deemed to be part of his order.

27. It was submitted that the impugned notification does not contain reasons for allowing exemption and therefore on this ground too it is liable to be struck down. The submission is fit to be summarily rejected. It is well-settled that administrative order need not contain reasons. The orders of administrative authorities who have no statutory or implied obligations to state reasons or grounds of decision are not rendered illegal merely on account of absence of reasons, and where such reasons are not indicated in the order, it is open to the respondents to produce the records and show that the decision was taken for good reasons. Reference may be made to Union of India v. E.G Nambudiri [1991 (2) L.L.N 48]. The relevant file, as indicated above, was produced and perusal thereof leaves no room for doubt that the exemption was granted after due application of mind and on consideration of the materials made available by the Board.

28. It was submitted that all said and done the notification was not published in the Official Gazette and therefore it has no binding effect. The submission is in ignorance of records. From the relevant extract of the Gazette, dated 29 November 2003, it appears that the notification was duly published in the Official Gazette on that date.

29. It is well-settled that while making judicial review of administrative action the Court cannot go into the correctness or otherwise of the decision itself. The jurisdiction of the Court is limited to finding out if there has been any error in the decision-making process. No error in the decision-making process or violation the relevant provisions of the Gratuity Act or any other law was pointed out to warrant interference with the impugned notification in writ jurisdiction. The notification being a valid piece of subordinate legislation, the petitioner thus cannot claim any right under the Gratuity Act. His claim to gratuity is governed by the Bihar Pension Rules and, as indicated above, being a discharged employee, he cannot claim any right to gratuity under the Pension Rules.

30. As regards the claim for unutilised leave/leave encashment the case of the Board is that unutilised leave salary is payable on superannuation of an employee. The petitioner having been discharged from service before his superannuation, he cannot claim the amount under this head. The definite case of the Board is that no dismissed employee of the Board has ever been paid unutilised leave salary in the past.

31. As regards the compassionate allowance under rule 46 of the Pension Rules described as “financial benefits” in the writ petition, the case of the board is that in terms of the said rule which provides for compassionate allowance to a Government servant dismissed or removed for misconduct etc. not exceeding ⅔rd of the pension which would have been admissible to him if he had retired on medical certificate, two-thirds of the amount of pension has been paid to the petitioner.

32. For the reasons stated above, the points urged on behalf of the petitioner having been rejected, this writ petition must fail and the same is accordingly dismissed but without any order as to costs.

33. Before we part with this case, we may clarify that this order will not cause any prejudice to the petitioner in his other pending writ petitions, C.W.J.C No. 859 of 2000 and C.W.J.C No. 1664 of 2000, arising out of punishment orders referred to above.