Allahabad High Court
Sandhya Dubey And 4 Others vs State Of U.P. And 2 Others on 16 May, 2022
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 7325 of 2022
Petitioner :- Sandhya Dubey And 4 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Narendra Kumar Chaturvedi
Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Narendra Kumar Chaturvedi, learned counsel for the petitioner, Mr. Arun Kumar, learned counsel for respondent nos. 2&3 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 respondents to release the amount of gratuity of the petitioner's husband to the petitioners along with admissible interest at earliest.
Learned counsel for the petitioner submits that the petitioners are wife of deceased employees, who were deployed as Assistant Teacher in various institutions as detailed in the writ petition. The grievance of the petitioners is that though, all dues as well as family pension have been sanctioned and released in favour of the petitioners but amount of gratuity of their husbands has not been paid to the petitioners. It is no doubt true that for payment of gratuity of deceased employees, the petitioners 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 petitioners have been informed by respondent nos. 2 and 3 verbally that as per Government Orders, as the deceased employees did not submit any application to opt retirement at the age of 60 or 62 years, the amount of gratuity could not be paid to the deceased employee or the petitioners after their death.
Learned counsel for the petitioners 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 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 petitioners 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 petitioners further submits that the controversy in hand is squarely covered by the judgment of this Court in the case of Usha Rani vs. State of U.P. and others, decided on 07.11.2019 passed in Writ-A No. 17399 of 2019 and as such similar indulgence may also be accorded in this writ petition also.
Learned counsel for the petitioners, therefore, submits that in view of the aforesaid law laid down by the Apex Court and the Division Bench, the petitioners are entitled to gratuity of the deceased employees. The petitioners have made an application for redressal of their 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 petitioners for payment of gratuity of the deceased employees is concerned, learned counsel for the petitioners have 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 petitioners submits that the petitioners are entitled to gratuity of deceased employees.
On the other-hand, learned counsel for the respondents submits that in case, the petitioners make 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 petitioners, the present writ petition is disposed of by providing that petitioners may, individually, make a fresh representation, ventilating all their grievances, supported by such documents, as he may be advised, before respondent no.2, i.e. District Basic Education Officer, Gorakhpur, within two weeks from today, along with a certified copy of this order. On such representation being made, respondent no.2 shall consider and decide the same, strictly in accordance with law as well as in the light of Usha Rani (supra) case, by means of a reasoned speaking order, preferably within two months thereafter, if there is no legal impediment.
Order Date :- 16.5.2022
Jitendra/-
