Gujarat High Court
Mahendra Assanand Kalra vs State Of Gujarat on 1 August, 2025
NEUTRAL CITATION
C/SCA/15884/2020 ORDER DATED: 01/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15884 of 2020
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MAHENDRA ASSANAND KALRA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
MR HENIL SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,4,5
SHIVANG P JANI(8285) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2025
ORAL ORDER
1. This petition is filed for the following prayers:
"6(A) Your Lordship may be pleased to issue a writ of mandamus and/or any other writ, order or direction in the nature of mandamus directing the respondents to grant gratuity amount and the amount under the head of leave encashment as claimed in the representation dated 05.04.2019 and 08.09.2020 (ANNEXURE-C);
(B) Pending admission, hearing and final disposal of the present petition, the Hon'ble Court may be pleased to direct the respondents to submit the report as regards the process undertaken pursuant to the representation and request made by the petitioner seeking gratuity and leave encashment amount by the representation dated 05.04.2019 and Page 1 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025 NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined 08.09.2020 (Annexure-C);
(C) xxxxx"
2. The brief facts leading to filing of this petition are such that the petitioner is the husband of deceased Dr.Kumkum Mahendra Kalra, who was appointed as Medical Officer in the respondent no.2 Institute and had served in the said institute for 32 long years and had an unblemished career; she retired on 31.7.2017 but on account of semester closure, she was given extension till 31.10.2017, however, she retired on 31.8.2017 after closure of office hours; that the gratuity amount and the amount under the head of leave encashment were not paid to her and therefore, she approached the institute on number of occasions; thereafter, she died on 27.2.2019 and with a view to pursue her legitimate right of gratuity and leave encashments benefits, the present petitioner-husband of the deceased had filed this petition, after making written representations to the respondent nos.2 and 3 on 5.4.2019 and 8.9.2020 and waiting for response, which he never received.
3. Heard learned advocates for the parties. 3.1 Learned advocate for the petitioner has submitted Page 2 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025 NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined that there is no dispute with regard to the period of service put in by the wife of the petitioner; that she had put in 32 years of service and therefore entitled to gratuity as provided under the law and the leave encashment amount; that she had an unblemished career; that in a case almost like the case of the petitioner being Special Civil Application No.3982 of 2020 which was preferred by one Dr.Kandarp Bhaskarai Chhaya, wherein on a civil application being moved by the respondent nos.2 and 3 requesting to permit them to deposit a sum of Rs.9,43,343/- before this Court which was the gratuity due and payable to the said petitioner and this Court granted permission to the said petitioner to accept the said cheque and the said cheque was handed over by the learned advocate for the respondent nos.2 and 3 to the learned advocate for the petitioner and the right to claim interest was kept open. He, therefore, submitted that the wife of the petitioner is also entitled for the said reliefs looking to the tenure of service put in by her. He, therefore, prayed to allow this petition.
3.2 Per contra, learned AGP for the respondents-state authorities has submitted that the wife of the petitioner- Dr.Kumkum Mahendrabhai Kalra was an employee of the Homeopathic Medical College, which is run by non-granted public trusts receiving grant-in-aid from the state government; Page 3 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025
NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined that the petitioner is not entitled to the benefits which are admissible and available to the government employees; only because the government is bearing 100% expenditure towards the pay and allowances of the staff of such college, it does not mean that the petitioner is to be treated as a government employee; that there is an alternative remedy available to the petitioner to approach the Controlling Authority under the Payment of Gratuity Act, 1972, which he has not been availed and has directly approached this Court; therefore, she is not entitled for the claims as prayed for and therefore prayed to dismiss this petition. Learned AGP has relied on the citation of the Hon'ble Apex Court in the case of Prabhakar V/s Joint Director Sericulture Department reported in 2015(0) AIJEL-SC 57194 and submitted that this petition is filed in the year 2020 though she had retired in the year 2017 and thereafter she expired in the year 2019 and the husband of the petitioner filed this petition in the year 2020 and therefore this petition is required to be dismissed on the point of delay, laches and acquiescence also. 3.3 Learned advocate Mr.Archit Jani for the respondent no.3 submitted that the similarly situated persons on whom the petitioner is relying have approached the controlling authority constituted under the Payment of Gratuity Act, 1972 and then they have filed the petitions; Page 4 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025
NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined further the respondent no.3 is a fully funded and granted by the state and therefore, it is the liability of the state government to grant gratuity in favour of the petitioner. He relied on the judgment of Jagdish Prasad Saini V/s State of Rajasthan reported in 2022(0) AIJEL 69905 and submitted that the state is responsible for the payment and if the state gives the grant for the same, the respondent will in turn, pay the same to the petitioner. He, therefore, prayed to pass appropriate orders.
4. I have heard the learned advocates for the parties and also perused the material placed on record. 4.1 At the outset, it transpires from the record that the wife of the petitioner worked for 32 long years with the respondent no.2-institute, she retired in the year 2017 and later on unfortunately died in the year 2019; that she had been pursuing for getting her legal dues by following up with the respondents authorities until she was alive; later on, on her death, her husband took over the fight and filed this petition; that similarly situated persons viz. Kandarp Bhaskarrai Chhaya and Dineshkumar Mohanlal Bhavsar who had filed Special Civil Application Nos.3982 of 2020 and 6675 of 2021 respectively have been awarded the gratuity and leave encashment as per entitlement by the Controlling Page 5 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025 NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined Authority and on the petitions being filed, this Court had awarded interest for the late payment as well as cost on the respondent authorities. Thus, without entering into any further discussion, it can be held that the wife of the petitioner who was similarly situated to the petitioners of those petitions is also entitled for the gratuity and leave encashment.
4.2 As regards the contention of the respondents authorities that the petitioner has an alternative remedy under the Payment of Gratuity Act, which is not availed by the petitioner cannot be accepted for the fact that there is no dispute with regard to the entitlement of the gratuity amount, which also can be made out from the submissions made by learned advocates for the state and institute to the effect that they are throwing the burden on each other to pay the amount to the petitioner, and the issue is that they are not paying the same to the petitioner, and therefore this petition is filed seeking a direction to the respondents to pay the same. It transpires that the state and the institute are just raising technical objections to avoid the payment to the petitioner, to which, she was entitled to. 4.3 From the entire material on record and the submissions made by learned advocates for the respondents, Page 6 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025 NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined it transpires that the state and the respondent-institute have tried to shift the burden on each other and ultimately not paid the legal dues of the wife of the petitioner who was the employee of the respondent-institute for 32 long years and has died without getting the fruits of the service career, which cannot be permitted. The gratuity and leave encashment are to be paid within a period of thirty days, even as per the provisions of the Act itself, which is not given even after so many years, only because of the inter se dispute between the state and the institute-Trust. 4.4 The state and the institute should have come out of the differences and decide as to who will pay the retiral benefits to the retired employee before the retirement, so that the retired employee, after working for such a long period, may not be pushed into legal battle for getting their legal dues that too after attaining the title of `senior citizen'. In the present case, even the employee has expired without getting the fruits of her long working career. The directions given by this Court in the orders passed in the case of similarly situated employees are reiterated that the state government is directed to issue appropriate instructions to all such institutions clarifying its stand so that a retired employee is not made to undergo the ordeal for claiming his gratuity or other benefits after his/her retirement. Page 7 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025
NEUTRAL CITATION C/SCA/15884/2020 ORDER DATED: 01/08/2025 undefined 4.5 In view of the above facts and the orders passed in similarly situated employees as referred to hereinabove, this petition is allowed. The respondent-State is directed to pay the amount of gratuity and leave encashment as per the entitlement of the deceased wife of the petitioner, within a period of six weeks from the date of receipt of this order and it will be open for the respondent-state authority to recover the same from the respondent-institute, if it is permissible under the law.
(SANDEEP N. BHATT,J) SRILATHA Page 8 of 8 Uploaded by U. SRILATHA(HC00185) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:04:23 IST 2025