Allahabad High Court
Sita Sharan Dwivedi vs State Of U.P. And 6 Others on 19 July, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 5581 of 2021
Petitioner :- Sita Sharan Dwivedi
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- Kamal Kumar Kesherwani
Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Ashwani Kumar Mishra,J.
Petitioner's claim for payment of death-cum-retirement gratuity pursuant upon death of petitioner's wife appears to be pending consideration before respondent no.6.
It appears that petitioner's wife was posted at Primary School Badi Naini, Block Chaka, District Allahabad when she died on 12.10.2020. It is asserted that although other dues have been paid and pension has been sanctioned but the amount of gratuity has not been paid only on ground that petitioner's wife has not exercised option to retire at the age of 60 years.
Controversy in that regard has already been adjudicated by this Court in number of petitions. Reference can be had to the judgment of this Court in Writ Petition No.17399 of 2019 (Usha Rani vs. State of U.P. and others), decided on 7.11.2019. Relevant portion of the aforesaid order is extracted hereinafter:-
"............
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.
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."
Facts of the case and dispute involved in the present case is squarely covered by the pronouncements made by this Court which are referred herein above, therefore, under such facts and circumstances, impugned order dated 30.7.2019 passed by respondent No. 7- Block Education Officer Block Kadarchauk, Distruict Badaun is hereby quashed.
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 certified copy of this order. ............"
Sri Arun Kumar, learned counsel appearing for the respondents states that claim of petitioner can be examined by the authorities in terms of the above direction forthwith.
In the facts and circumstances, this petition stands disposed of with the direction upon respondent no.6 to accord consideration of petitioner's claim for payment of gratuity, in light of the observations contained in the above order, by passing a reasoned order, within a period of four months from the date of presentation of a copy of this order.
Order Date :- 19.7.2021
Abhishek Singh
