Court No. - 6
Case :- WRIT - A No. - 8359 of 2021 Petitioner :- Sheela Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Santosh Kumar Singh Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh
Hon'ble Pankaj Bhatia,J.
1. Heard counsel for the petitioner, Sri Bhanu Pratap Singh, Advocate appearing on behalf of the Respondents No. 3 and 4, learned Standing Counsel and perused the record.
2. Present petition has been filed against the order passed by respondent No. 3- Additional Director, Treasury and Pension, Bareilly in terms of which the claim of petitioner for gratuity has been rejected on the ground that husband of petitioner has not given option for retirement at the age of 60 years, therefore, not entitled for gratuity.
3. Learned counsel for the petitioner submitted that husband of petitioner was initially appointed as Assistant Teacher on 30.1.2006 and joined his services. Unfortunately, husband of petitioner died during the course of service on 27.12.2018. After the death of her husband, petitioner applied for terminal dues. She was given all other benefits except gratuity which was refused on the ground that her husband has not filled up option for retirement at the age of 60 years. It is further submitted that as per Government Order dated 16.09.2019, petitioner's husband is fully entitled for gratuity even in case if he has not given option for retirement at the age of 60 years, therefore, the order impugned is wholly arbitrary, inasmuch as under the relevant scheme of payment of gratuity, the claim of petitioner's husband is covered and the Government Order dated 16.09.2019 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.
4. In support of his contention, he has placed reliance upon several judgments of this Court as well as Lucknow Bench of this Court passed in Writ-A No. 40568 of 2016 (Noor Jahan vs. State of U.P. and 4 others) decided on 4.1.2018, Writ-A No. 8679 of 2018 (Smt. Omwati Vs. State of U.P. and 3 others) decided on 9.3.2018, Writ-A No. 6049 of 2019 (Smt. Brijesh vs. State of U.P. and 5 others) decided on 26.04.2019 and Service Single No. 6173 of 2014 (Smt. Mala Tripathi vs. State of U.P. Through Prin. Secy. Secondary Edu. Lko. & Ors.) decided on 5.8.2019.
5. On the other hand, learned standing counsel as well as Sri Bhanu Pratap Singh, learned counsel for respondent Nos. 3 and 4 submitted that denial of gratuity of petitioner's husband is in accordance with Government order, therefore, there is no illegality in the impugned order.
6. I have considered the rival submissions raised by counsel for the parties and perused the record as well as judgments relied upon.
7. Similar issue was considered by this Court in the matter of Noor Jahan (Supra) in which this Court vide order dated 04.01.2018 has clearly held that Government Order dated 16.09.2019 does not provide any bar for payment of gratuity in case petitioner's husband had not given option for retirement at the age of 60 years. Relevant paragraphs of the said judgment is quoted below:-
"Learned counsel for the petitioner submits that the order impugned is wholly arbitrary, inasmuch as under the relevant scheme for payment of gratuity, the claim of petitioner's husband is otherwise covered, and the Government Order dated 16.9.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.
Sri R.B. Yadav, learned counsel for the respondent nos. 3 and 4, submits that the denial of gratuity to petitioner is in accordance with the Government Order.
I have heard learned counsel for the parties, and have perused the materials brought on record.
Government Order dated 16th September, 2009 provides for revision of pension and other retiral benefits to the retired employees of the department of basic education. This Government Order grants higher benefits w.e.f. 1.1.2006. Clause 4(1) of the Government Order provides that pension would not be payable to those employees, who have not completed 10 years of qualifying service, but the employees who retire upon attaining the age of superannuation of 60 years would be entitled to gratuity and other service benefits. The Government Order does not restrict payment of gratuity to an employee, who is otherwise covered under the scheme just because he has not attained the age of 60 years. Reference to age of 60 years is due to fact that age of superannuation under the rule is otherwise 60 years. Position has otherwise been clarified by Clause 5 of the Government Order, which provides that gratuity would be payable at the age of 60 years or upon death. The respondents, therefore, were not justified in rejecting petitioner's claim for payment of gratuity, in terms of Government Order dated 16.9.2009. The impugned action, therefore, cannot be sustained. Order dated 8.7.2016 is, accordingly, quashed.
A direction is issued to the respondents to compute the amount payable to petitioner's husband towards gratuity in terms of the scheme and release the same, within a period of three months from the date of production of certified copy of this order. The petitioner shall also be entitled to interest at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.
Writ petition is, accordingly, allowed."
8. In the matter of Smt. Omwati (Supra), Court had dealt for payment of interest upon delayed payment of gratuity and held that petitioner is entitled for interest. Relevant paragraph of the said judgment is quoted below:-
"The only other issue that survives for consideration is whether, the petitioner is entitled to payment of interest on the delayed payment of gratuity.
This aspect has been dealt with by Division Bench of this Court in Special Appeal (Defective) No.430 of 2016, Smt. Nazma Khatoon Vs. State of U.P. and others where a learned Single Judge had rejected the prayer for interest on delayed payment of gratuity. However, the Division Bench opined that interest is a necessary corollary to the retention of money by another person. It is neither compensatory nor penal in nature. It was so held, upon an earlier Division Bench decision in Smt. Ranjana Kakkar W/O Late Prof. Amarnath Kakkar Vs. State of Uttar pradesh and others, 2008(10) ADJ 63 (DB).
The Division Bench in Smt. Nazma Khatoon (supra) went on to award 8% interest on the gratuity payable.
Counsel for the petitioner has also relied upon the Government order No.SA-3-1901/10-2002-971/80 dated 30.10.2002, which provides for payment of interest on delay in payment of gratuity and post retiral benefits beyond a period of 3 months from the date they are payable.
Under the circumstances, this Court considers it appropriate to award the same rate of interest on the delayed payment as has been awarded by the Division Bench in Smt. Nazma Khatoon(supra), the rate being 8%.
For the reasons given above, this writ petition is allowed. The impugned order passed by the District Inspector of Schools, Sambhal dated 01.01.2018 is hereby set aside. The respondents are directed to calculate the gratuity payable to the petitioner along with 8% interest thereon by a speaking order and to ensure payment of the said amount to the petitioner within a period of six weeks from the date, a certified copy of this order is filed before him."
9. Following the decision rendered in the judgment of Noor Jahan (Supra) as well as Smt. Omwati (Supra), matter of Smt. Brijesh (Supra) for payment of gratuity was allowed by this Court by quashing the impugned orders by which gratuity was denied.
10. Similar controversy was also decided by Lucknow Bench of this Court vide order dated 5.8.2019 passed in the matter of Smt. Mala Tripathi (Supra) in which Court has taken a similar view and held that if husband of petitioner died before attaining the age of 60 years and has not given option for retirement at the age of 60 years, gratuity cannot be denied only on this ground. Relevant paragraph of the said judgment is quoted below:-
"Heard learned counsel for the contesting parties and perused the records.
From perusal of the records, it clearly comes out that the petitioner's husband died in harness on 26.08.2012 while working as Assistant Teacher in an aided and recognized institution. It is also admitted that the family pension has been paid to the petitioner. The only dispute revolves around the payment of gratuity to the petitioner. The ground taken by the respondents of the petitioner's husband not having opted for retiring at the age of 60 years which thus entails non-payment of gratuity to her at the very out set does not stand to legal scrutiny inasmuch as it is an admitted case by the respondents also that the petitioner's husband died in harness on 26.08.2012 despite his actual date of superannuation being November 2019. Thus, an employee is only expected to submit an option prior to his retirement and not decades prior to his retirement. However, this aspect of the matter has not been considered by the respondents and even the letter of the Institution dated 19.03.2014, a copy of which has been filed as Annexure-3 to the petition, does not address the aforesaid issue.
Accordingly, keeping in view the aforesaid discussions, the order dated 19.03.2014 (Annexure-3 to the petition) cannot be said to be valid in the eyes of law. As such, the writ petition deserves to be partly allowed and is hereby partly allowed. A writ of certiorari is issued quashing the order dated 19.03.2014. A writ of mandamus is issued directing the respondents to consider the case of the petitioner for payment of gratuity in accordance with law and relevant rules within a period of three months from the date of receipt of a certified copy of this order."
11. Following the judgments, the petitioner is entitled to a direction by this Court. Accordingly, the respondents are directed to compute the amount payable to the petitioner's husband towards gratuity in terms of the scheme and release the same, maximum within a period of three months from the date of production of copy of this order. The petitioner shall also be entitled to interest at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.
12. Writ petition is, accordingly, allowed.
13. No order as to costs.
14. Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.
Order Date :- 30.7.2021 vinay