Allahabad High Court
Daulatee Devi vs State Of U.P. And 3 Others on 9 May, 2022
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 7020 of 2022
Petitioner :- Daulatee Devi
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Kamal Kumar Kesherwani
Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Kamal Kumar Kesharwani, learned counsel for the petitioner, Mr. Arun Kumar, learned counsel for respondent-District Basic Education Officer, and the learned Standing Counsel for the State-respondents.
By means of the present writ petition, the petitioner has prayed for a direction upon the respondent authorities to sanction and release the amount of gratuity of the petitioner's husband of the petitioner along with admissible interest forthwith.
Learned counsel for the petitioner submits that husband of the petitioner, namely, Indrasen Yadav, was initially appointed as Assistant Teacher on 30th November, 1983 pursuant to the appointment letter issued by the District Basic Education Officer, Gorakhpur. On 17th May, 2002, the husband of the petitioner was promoted on the post of Head Master. When the husband of the petitioner was as Headmaster at Primary School, Teliya Bhar Urf Vishpunpur, Block Urunwa, District Gorakhpur, he expired during harness on 26th September, 2009. The work of the husband of the petitioner during his entire service was to the utmost satisfaction of his superior authorities. After death of her husband, the petitioner, after completing all requisite formalities, submitted an application in a prescribed proforma before the authority concerned for payment of family pension and other retiral benefits and the same was also forwarded to the competent authority within time. Though, all dues as well as family pension have been sanctioned and released in favour of the petitioner but amount of gratuity of her husband has not been paid to her. It is no doubt true that for payment of gratuity of her husband, the petitioner approached the authority concerned after delay of number of years but satisfactory reasons have been disclosed in the writ petition. On enquiry being made, the petitioner has been informed by respondent nos. 3 and 4 verbally that as per Government Orders, as the husband of the petitioner i.e. deceased employee did not submit any application to opt retirement at the age of 58 years, the amount of gratuity could not be paid to him or the petitioner after his death.
Learned counsel for the petitioner submits that the similar case, which has arisen in the present writ petition, had already been examined by a Division Bench of this Court in the case of Smt. Ranjana Kakkar Vs. State of U.P. & Others reported in 2008 (10) ADJ 63, wherein it has been held that even if the death of a person is an unforeseen circumstances, which could not have been predicted by him, it cannot be presumed that the employee would have chosen to retire at the particular age much prior to in time than the contingency of achieving the age of retirement arrived. Learned counsel for the petitioner next submits that the Apex Court in its recent judgment dated 18th November, 2021 passed in Special Leave Petition (C) No. 1803 of 2018 (G.P. Pant University of Agriculture and Technology Vs. Shri Damodar Mathpal), has held that mere exercise of the option of an employee, to avail the benefit of extension of age of retirement to 60 years, could not have operated against his entitlement to gratuity and exercising of such an option will not deprive the dependents to gratuity. Learned counsel for the petitioner, therefore, submits that in view of the aforesaid law laid down by the Apex Court and the Division Bench, the petitioner is entitled to gratuity of her deceased husband. The petitioner has made an application for redressal of his grievances, before the authority concerned but no decision has been taken thereon till date, hence the present writ petition.
So far as the delay in making the application by the petitioner for payment of gratuity of her husband is concerned, learned counsel for the petitioner has referred a judgment and order of the Division Bench of this Court dated 11th January, 2022 passed in Special Appeal Defective No. 768 of 2021 (Jwala Devi Vs. State of U.P. & 5 Others), wherein a Division Bench of this Court has opined as follows:
"It is settled law that payment of gratuity is the right of the employee, provided gratuity is actually payable in accordance with law. Non-payment of gratuity, in the event it is legally payable, is the statutory responsibility of the employer. Therefore, the writ petition of the widow of the deceased employee asking for payment of gratuity cannot be dismissed merely on the ground of laches, unless it is found that the gratuity is not legally payable. "
On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the petitioner is entitled to gratuity of her deceased husband.
On the other-hand, learned counsel for the respondents submits in case the petitioner makes a fresh application before the authority concerned, the same shall be considered and decided in accordance with law.
Considering the facts and circumstances of the case but without expressing any opinion on the merits of the case set up on behalf of the petitioner, the present writ petition is disposed of by providing that petitioner may make a fresh representation, ventilating all his grievances, supported by such documents, as he may be advised, before respondent no.3, within two weeks from today, along with a certified copy of this order. On such representation being made, respondent no.3 shall consider and decide the same, strictly in accordance with law, by means of a reasoned speaking order, preferably within three months thereafter, if there is no legal impediment.
(Manju Rani Chauhan, J.)
Order Date :- 9.5.2022
Sushil/-
