Court No. - 33
Case :- WRIT - A No. - 18184 of 2002 Petitioner :- Union Of India Thru' G.M. Northern Rly. & Ors. Respondent :- Bhagwan Swaroop Kulshrestha & Others Counsel for Petitioner :- Prashant Mathur Counsel for Respondent :- S.C.,Sudhir Kumar,Vinod Sinha Hon'ble Manoj Misra,J. Hon'ble Ved Prakash Vaish,J.
The restoration application no.279348 of 2017 seeking recall of the order dated 27.04.2012, dismissing the petition for non prosecution, has been placed before us.
The restoration application is supported by an affidavit wherein it is claimed that the listing of the petition could not be noticed and therefore the petition could not be pressed on that day; and that, subsequently, when status of the petition was obtained, it was found that it had been dismissed for non prosecution. Immediately thereafter application was filed for restoration.
No counter affidavit has been filed to the restoration application.
In view of the cause shown, we consider it appropriate to allow the restoration application.
Accordingly, the order dated 27.04.2012 dismissing the petition in default is recalled and the petition is restored to its original number.
Upon restoration of the petition, we have heard Sri Prashant Mathur, learned counsel for the petitioner; and Sri S.K. Kulshreshtha for the first respondent on the merits of the petition.
The petitioners have assailed orders dated dated 16th July, 1999 and 27th February, 2001 passed by the Central Administrative Tribunal, Allahabad in Original Application No.1667 of 1994 filed by the first respondent and on Review Application No.17 of 2000 filed by the petitioners, respectively.
A perusal of the record would reveal that the first respondent had filed Original Application No.1667 of 1994 for: (a) payment of gratuity ; (b) settlement/ package allowance; (c) tuition fee for his son for September and October 1989; (d) difference of pay as higher pay was given to Sri D.P. Nagia; and (e) compensation for denial of passes for the journeys that he undertook.
In respect of the claim for gratuity, the petitioner had resisted the claim of the first respondent by claiming that the first respondent had not vacated the official quarter allotted to him even after the retirement and, therefore, he was not entitled to release of gratuity. The first respondent had claimed that he had vacated the official residence on 31.03.1991 and had intimated the department about its vacation and that since 01.04.1991 one Diwakar Singh was in occupation. Before the Tribunal, a dispute as regards the calculation of gratuity was also raised. The Tribunal, accordingly, came to the conclusion that although the first respondent would be liable to pay penal rent for the period for which he remained in unlawful occupation but the amount payable to the first respondent towards gratuity needed computation as per the existing rules applicable to the applicant and if any amount remains payable, then 12% interest should be added to it payable upon expiry of two months from the date of first respondent's retirement till the date of actual payment.
In respect of the claim for settlement/ package allowance, the petitioners had resisted the claim of the first respondent by claiming that the same would be payable only if he vacates accommodation and gets a settlement pass/ kit pass for his family. The Tribunal found that from rejoinder affidavit of the first respondent it was proved that he has shifted his luggage from Allahabad to Aonla on 28.03.1991 and therefore there was no justification to apply for kit pass and that could not be a condition for denying settlement/ package allowance. Hence, it held that the first respondent was entitled to get settlement/ package allowance.
In respect of claim for tuition fees, in absence of production of rules, no specific direction was issued except that the department was to examine the claim as per rules.
In respect of claim for higher salary, the same was rejected and the issue was decided in favour of the petitioner.
In respect of denial of passes the petitioners' claim was that on account of non vacation of official quarter, compensation for denial of passes was not payable. The Tribunal rejected the stand of the department by observing that there cannot be double penalty, particularly, when gratuity is not a bounty and deduction of penal rent was already allowed. Accordingly, it required the department to examine the accounts furnished in that regard and settle the same.
Against the order of the Tribunal dated 16th July, 1999, review application was filed which was rejected by order dated 27th February, 2001. From a perusal of the order passed on the review application it appears that the stand taken was that the amount of gratuity payable to the applicant was sent by post but the same returned back with postal remark that the applicant was not found at that address.
Sri Mathur, learned counsel for the petitioners, have stated at the Bar that claim as regards passes have been settled.
It is well settled that gratuity is not a bounty. It becomes payable to an employee for his service rendered for the employer. The petitioners have not come with a case that the gratuity was not otherwise payable though their case was that the gratuity was not payable because the applicant was retaining official quarter. It is not in dispute that the official quarter was subsequently vacated and thereafter the Tribunal had provided a direction to pay gratuity after deducting the penal rent for the period the first respondent remained in unlawful occupation. We therefore fail to understand as to how the petitioners are aggrieved by the order impugned.
Even in the review application plea on the merits of the case was not taken. It was rather urged that effort was made to make payment but the same returned unserved for incorrect address. If that was so, it was not a case for which review application ought to have been filed. Furthermore, as to what amount was to be paid is a matter which requires calculation and since liberty was given to the petitioners to compute, we fail to understand how the petitioners were aggrieved by the order of the Tribunal.
Under the circumstances, we find no merit in the petition, the same is dismissed.
Order Date :- 27.7.2018 AKShukla/-
(V.P. Vaish, J.) (Manoj Misra, J.)
Court No. - 33
Case :- WRIT - A No. - 18184 of 2002 Petitioner :- Union Of India Thru' G.M. Northern Rly. & Ors. Respondent :- Bhagwan Swaroop Kulshrestha & Others Counsel for Petitioner :- Prashant Mathur Counsel for Respondent :- S.C.,Sudhir Kumar,Vinod Sinha Hon'ble Manoj Misra,J. Hon'ble Ved Prakash Vaish,J.
In Re:- Restoration Application No.279348 of 2017.
Allowed.
For orders, see order of date passed on the writ petition.
Order Date :- 27.7.2018 AKShukla/-
(V.P. Vaish, J.) (Manoj Misra, J.)