Heard Sri Kamal Kumar Kesherwani, learned counsel for the petitioner, Sri Anant Tiwari, learned counsel for the respondent LIC and learned State counsel for the State authorities.
This petition has been filed with the grievance that petitioner's husband was entitled to payment of gratuity and that its denial in the facts and circumstances is wholly arbitrary.
Petitioner's husband late Muzzamil Ali Khan was appointed as Assistant Teacher in Mahatma Gandhi Palika Inter College, Ujhani, Badaun, on 28.08.1972. His recorded date of birth is 02.07.1951. He was due to superannuate on 30.06.2012 upon attaining the age of superannuation of 60 years and notice in that regard was issued by the institution on 30.01.2012. In terms of the applicable regulations/rules petitioner's husband was to superannuate on 30.06.2012 as he was entitled to sessions benefit for the period 02.07.2011 to 30.06.2012. According to the petitioner, her husband has clearly exercised option to retire at the age of 60 years and specific document in that regard has been annexed as Annexure-2 to the writ petition. It appears that the Committee of Management also endorsed petitioner's claim for payment of gratuity. However, on 14.03.2012 petitioner's husband died. The present petitioner is the widow of late Muzzamil Ali Khan and states that she has been paid all other benefits except amount of gratuity. It is in terms of the relevant circulars/regulations/rules that as the petitioner's husband has exercised option to retire at the age of 60 years, therefore, the amount of gratuity is due and payable to him and its denial is bad in law.
This petition was entertained on 21.5.2015 and time was granted to learned Standing Counsel to file counter affidavit. The matter has remained pending with repeated opportunities given requiring the respondents to file counter affidavit. On 28.1.2020 following orders were passed:-
"Twice time has been granted to learned Standing Counsel for filing counter affidavit, but no counter affidavit has been filed till date.
As a last opportunity, three weeks' and no more time is granted to learned Standing Counsel to file counter affidavit.
List this matter in the week commencing 24.02.2020."
The matter has been taken up on number of occasions but till date State has chosen not to file counter affidavit. This petition is therefore not liable to be kept pending any further and the same is taken up for final disposal by applying the doctrine of non traverse.
It is not in issue that gratuity is payable to a teacher employed in a recognized aided institution if he opts for retirement at the age of 60 years. In the facts and circumstances of the present case such option was exercised by the petitioner's husband. Option form annexed as Annexure-2 to the writ petition clearly shows that petitioner had opted to retire at the age of 60 years and it has not been disputed. Once that be so, the petitioner is clearly justified in claiming gratuity from the respondents in terms of the applicable act/regulations/rules. The authorities in such circumstance have acted in arbitrary and illegal manner in denying benefit of gratuity to petitioner's late husband.
In view of the above, this writ petition succeeds and is allowed. A writ of mandamus is issued to the respondent no.2 to ensure that withheld amount of gratuity alongwith interest in terms of the relevant scheme/rules etc. is paid to the petitioner within a period of three months from the date of presentation of a copy of this order. In the facts of the present case, petitioner is also entitled to the cost assessed at Rs.5000 from the State.
Order Date :- 11.1.2021 Ashok Kr.