Union Of India & Another vs Satya Narain & Another
2012 Latest Caselaw 3107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 
Case :- WRIT - C No. - 16065 of 1999
 
Petitioner :- Union Of India & Another
 
Respondent :- Satya Narain & Another
 
Petitioner Counsel :- A.K.Tripathi,A.K.Gaur
 

 
Hon'ble B. Amit Sthalekar,J.

By this writ petition, the petitioner is challenging the order dated 16.1.1996 of the Controlling Authority passed under the Payment of Gratuity Act.

The facts of the case, in brief, are that the respondent no. 1 was employed in the Railways (petitioner)as a Fitter Grade III and he retired from service on attaining the age of superannuation on 30.9.1994. The case of the petitioner is that even after his retirement he continued to occupy the railway quarter, which was allotted to him and did not vacate the same and, therefore, his occupation of the said railway quarter became unauthorized on account of which house rent of the said quarter to the tune of Rs. 21,376.80 and electricity dues to the extent of Rs. 5,520.26/- became due against the respondent no. 1. The respondent no. 1 filed an application before the Controlling Authority under the Payment of Gratuity Act for a direction to the Railway administration to make payment of the gratuity due to him.

The case was contested by the Railway administration and in the reply which was filed as Annexure-2 to the writ petition, it was mentioned that gratuity was not payable to the respondent no. 1 as a sum of Rs. 21,376.80 and electricity dues to the extent of Rs. 5,520.26/- total Rs. 26,697.06 was itself due against the respondent no. 1 and, therefore, his claim for Payment of Gratuity Act of Rs. 25,327/- was wholly misconceived.

The respondent no. 2 Controlling Authority under the Payment of Gratuity Act has, however, rejected the objections of the petitioner-Railway administration and has allowed the claim of respondent no. 1 computing gratuity payable to him at Rs.33,750 plus 10% interest from 15.12.1994 to 15.1.1996 amounting to Rs.3,656/- total Rs.37,406/-. The claim of respondent no. 1 has been allowed essentially on the legal question that the provisions of Section 13 of the Payment of Gratuity Act had an over riding effect and it provides that no gratuity payment to an employee under the Act would be liable to attachment in execution of any decree or order of any civil, revenue or criminal court.

I have heard Shri A.K. Gaur, learned counsel appearing for the petitioners. Notices were directed to be issued to the respondent no. 1 on 20.4.1999 and steps for service was also taken by the petitioners on 6.6.2000, as per office report. As per the office report dated 5.8.2011 neither the undelivered cover nor acknowledgement has been received back after service. In the circumstances service upon the respondent no. 1 shall be deemed to be sufficient.

Learned counsel for the petitioner has submitted that the respondent no. 1 even after his superannuation continued to be in illegal and unauthorized occupation of the railway quarter and, therefore, he was liable for payment of house rent and electricity dues for the electricity consumed by him. According to Shri Gaur the house rent came to Rs.21,376.80 and the electricity dues came to Rs.5,520.26 total Rs.26,697/-. As per the own claim petition of the respondent no. 1 his claim for the gratuity was Rs.25,327.50/- and, therefore, if the government dues are taken into consideration then nothing would be payable to the respondent no. 1 and the said amount of government dues could only be recovered from his gratuity.

Shri Gaur further submitted that there is no decree or order of civil, revenue or criminal court and, therefore, the question of execution of any decree did not arise and therefore, the provisions of section 13 of the Payment of Gratuity Act would not be a bar to the recovery of dues against the respondent no. 1-employee from his gratuity otherwise payable to him. Reliance has been placed on a decision of the Supreme Court in the case reported in (2005) 5 SCC 245, Secretary, O.N.G.C. Ltd. and another Vs. V.U. Warrier. In the said judgment the Supreme Court has considered another judgment reported in (1993) 1 SCC 47 Jarnail Singh Vs. Secretary, Ministry of Home Affairs, wherein the Supreme Court while interpreting the provisions of Central Civil Services (Pension) Rules, 1972 interpreted the word pension as contained in Rule 3 of the Rules to include "gratuity" and held that the provisions of Rule 9 conferred power upon the President to withhold or withdraw the pension in certain circumstances. The Supreme Court in the case of Jarnail Singh (supra) further held that there could be attachment of government dues against the amount of death-cum-retirement gratuity payable to government servant. This judgment was followed by the Supreme Court in the case of Secretary, O.N.G.C.(supra). However, in the case of Secretary O.N.G.C. (supra) the Supreme Court also considered the question that the residential quarter had been allotted to the employee and that he continued to retain the same even after his retirement on 28.2.1990, therefore a notice to vacate the quarter had been given to him by the Commission and it is in view of these facts that the Supreme Court held that since inspite of notice from the Commission, the employee continued to be in illegal and unauthorized possession of the official quarter penal rent would be charged from him.

The relevant paragraph 21 of the said judgment reads as under:

"In Jarnail Singh V. Secy., Ministry of Home Affairs this Court had occasion to consider the provisions of the Central Civil Services (Pension) Rules, 1972. The definition of "pension" included gratuity under Rule 3. Rule 9 conferred on the President right to withhold or withdraw pension in certain circumstances. The order was passed against the appellant withholding pension and the entire amount of death-cum-retirement gratuity otherwise admissible to him. The direction was given on serious irregularities found to have been committed by the appellant. The appellant challenged that order unsuccessfully before the Central Administrative Tribunal. He therefore, approached this Court. His contention was that an amount of gratuity could not have been withheld. Negativing the contention, the Court held that the power to withhold gratuity was conferred on the President under the relevant rules and hence, such action could not be said to be illegal. According to the Court, there could be adjustment of government dues against the amount of death-cum-retirement gratuity payable to government servant."

In the present case, the pleadings in the writ petition do not indicate whether the respondent no. 1 was at any point of time given any notice to vacate the quarter and as to what was the date from which his occupation in the railway quarter became unauthorized. All that has been stated is that a sum of Rs. 21,376.80 and electricity dues to the extent of Rs. 5,520.26/- was due against the respondent no. 1. This was also the case of the petitioners in their reply before the Controlling Authority under the Payment of Gratuity Act, which has been filed as Annexure-2 to the writ petition.

A reading of the impugned order dated 16.1.1996 demonstrates that the only ground on which the objections of the petitioners was rejected is that section 13 of the Payment of Gratuity Act had an overriding effect and that gratuity could not be attached for the purpose of execution of any decree of a civil, revenue or criminal court and, therefore, the Authority-respondent no. 2 did not go into the question as to whether the occupation of the respondent no. 1 was unauthorized and whether the amount claimed by the petitioner to be due against the respondent no. 1 was actually due against the respondent no. 1.

However, in view of the decision of the Supreme Court in the case of Jarnail Singh and Secretary O.N.G.C. Ltd. (Supra), the objections under section 13 of the Payment of Gratuity Act will no longer come in the way of the petitioners from recovering the government dues from the gratuity dues of the respondent no. 1. But the question still remains whether the respondent no. 1 was in unauthorized occupation and whether the amount of Rs. 21,376.80 and electricity dues to the extent of Rs. 5,520.26/- was actually a government due against the respondent no. 1. This question having not even been considered and decided by the Controlling Authority-respondent no. 1 in the impugned order dated 16.1.196, therefore, the same is absolutely illegal and without application of mind and is contrary to the law laid down by the Supreme Court.

For the aforesaid reasons, the writ petition is allowed and the impugned order dated 16.1.1996 is quashed.

The matter is remitted back to the respondent no. 2-Controlling Authority to reconsider as to whether any government dues in the nature of house rent and electricity dues are due against the respondent no. 1 and whether if so, any gratuity is payable to the respondent no. 1 within a period of two months from the date a certified copy of this order is received by him. It is made clear that the amount which was directed to be deposited by this court at the time of admission of the writ petition shall continue to remain invested in the nationalized bank subject to the outcome of any order to be passed by respondent no. 2.

There shall be no order as to cost.

Order Date :- 20.7.2012

o.k.