AMRITA SINHA, J. - (1.) The petitioner claims to have served as a mechanical engineer in the Electro Medical and Allied Industries Ltd. a government of West Bengal enterprise. In response to an advertisement published by the office of the respondents the petitioner applied for the post and was selected by the selection committee. An appointment letter was issued in his favour on 10th May, 2008 for a period of one year. His service was on contract basis upon certain terms and conditions mentioned in the letter of appointment. The contractual service of the petitioner was extended from time to time. The same was lastly extended on 1st April, 2014 till 30th September, 2014. The petitioner resigned from service on 4th August, 2014. Resignation of the petitioner was accepted by the respondent company. The petitioner claims that he had been in continuous service for a period of 6 years 2 months and 2 days without any break. The petitioner submits that he is entitled to receive his gratuity in terms of the Payment of Gratuity Act, 1972. The petitioner filed a representation praying for release of his gratuity on 6th September, 2014 and thereafter on 14 May, 2016. A copy of the representation dated 6th September, 2014 has been annexed with the writ petition, and a copy of the representation dated 14th May, 2016 has been annexed in the supplementary affidavit which the petitioner filed in court today. The petitioner submits that clause 73 of the service rules of the company states that after rendering five years of service if an employee retired voluntarily, resigned, died while in service or whose services have been terminated for the reasons other than as a disciplinary measure shall be entitled to gratuity according to the law in force. It has been further submitted that as per the preamble of the service rules whenever any inconsistency arises between the provisions of the rules and any provision of law or rules and regulations thereunder, the provisions of law, rules or regulations shall prevail.
(2.) The petitioner has prayed for issuance of a writ of mandamus commanding the respondents to forthwith release the retirement benefits, gratuity, leave salary and arrear salary together with compound interest with effect from 2nd August, 2014 till the date of making of such application.
(3.) The learned advocate appearing for the respondents submits that the writ petition is liable to be dismissed as the petitioner did not file any demand of justice ventilating his grievance before the respondent authorities and giving them a chance of rectification of the mistakes, if any. He relies upon a decision in the case of Kamini Kumar Das Choudhury v. State of West Bengal and others reported in (1972) 2 SCC 420 on the proposition that the writ of mandamus will not be granted unless there was a demand and refusal of the claim of the petitioner. He also refers to a decision in the case of Saraswati Industrial Syndicate v. Union of India reported in AIR 1975 SC 460 on the same proposition. He stress as on the fact that the petitioner had never raised any demand upon the respondents requesting payment of gratuity and he approached the writ court at the very first instance which is not permissible.;