Allahabad High Court
Nooruddin vs State Of U.P. And 4 Others on 26 May, 2022
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 8139 of 2022
Petitioner :- Nooruddin
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Kamal Kumar Kesherwani
Counsel for Respondent :- C.S.C.,Amit Shukla
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Kamal Kumar Kesherwani, learned counsel for the petitioner, Mr. Amit Shukla, learned counsel for respondent nos.4 & 5 and learned Standing Counsel for the State-respondents.
The writ petition has been filed by the petitioner with the following prayer:-
"(a). Issue, a writ order or direction in the nature of mandamus commanding and directing the respondent to pay the amount of death-cum retirement gratuity of the petitioner's mother to the petitioner along with admissible interest forthwith.
(b). Issue, any other writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case to which the petitioner may found entitle in law.
................."
Learned counsel for the petitioner submits that mother of the petitioner, namely, Najma Bee, was initially appointed as an Assistant Teacher on 28.01.1995 pursuant to the appointment letter issued by the then District Basic Education Officer, District Pilibhit. Subsequently, the mother of the petitioner died in harness on 25.07.2017. After death of the petitioner's mother, petitioner's father after completing all requisite formalities, submitted an application in a prescribed proforma before the authorities concerned for payment of family pension and other retiral benefits and the same was also forwarded to the competent authority within time. After some time, father of the petitioner has also died on 28.05.2021, thereafter, the petitioner pursue the claim of the gratuity of his mother. Though, all dues as well as family pension have been sanctioned and released in favour of the petitioner but amount of gratuity of petitioner's mother has not been paid to him. It is no doubt true that for payment of gratuity of his mother, the petitioner approached the authority concerned within time. On enquiry being made, the petitioner has been informed by respondent nos.4 & 5 verbally that as per Government Orders, as the mother of the petitioner i.e. deceased employee did not submit any application to opt for retirement at the age of 60 years, therefore, the amount of gratuity could not be paid to her or the petitioner after the death of his mother.
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 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 further 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 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 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 his deceased mother. 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 his mother 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 his deceased mother.
On the other-hand, learned counsel for the respondents submits that 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.4, District Basic Education Officer, Pilibhit, within two weeks from today, along with a certified copy of this order. On such representation being made, respondent no.4 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.
The petitioner's claim for gratuity shall not be rejected only on the ground that "Option Form" has not been filled by the petitioner's mother.
Order Date :- 26.5.2022
Rahul.
