Smt. Raj Kumari vs State Of U.P. Thru Secy.Secondary ...
2022 Latest Caselaw 18247 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 7178 of 2015
 

 
Petitioner :- Smt. Raj Kumari
 
Respondent :- State Of U.P. Thru Secy.Secondary Edu.Civil Sectt.Lko.And Ors.
 
Counsel for Petitioner :- Dhirendra Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajnish Kumar,J.

Heard, learned counsel for the petitioner and learned Standing Counsel.

By means of present writ petition the petitioner has challenged the order dated 24.07.2013 by means of which the Gratuity admissible to the deceased husband of the petitioner who died in harness on 30.05.2011 at the age of 54 years was refused on the ground that he had not exercised the option for retirement at the age of 60 years on which the gratuity is admissible.

There is no dispute among the learned counsel for the parties that this case is covered by the judgment and order dated 05.08.2019 passed in Writ Petition Service Single No.6173 of 2014; Smt.Mala Tripathi Versus State of U.P. and others. The order of which on reproduction reads as under:-

"Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents.

By means of the present petition, the petitioner, a widow, is before this Court claiming payment of gratuity on account of death of her husband, who died in harness. A further prayer is for quashing of the order dated 19.03.2014, a copy of which is Annexure-3 to the petition, by which the management of the Institution has informed the petitioner that as the petitioner's husband failed to opt for retiring at the age of 60 years as such in absence of such option no gratuity is payable.

The case set forth by the petitioner is that her husband namely Anand Prakash Tripathi was working as Assistant Teacher in Birla Vidya Mandir Inter College, Hargaon, District Sitapur, an aided and recognized institution under the provisions of the U.P. Intermediate Education Act, 1921. He died on 26.08.2012. His date of retirement, had he continued in service, would have been 15.11.2029. When the petitioner was not paid gratuity, she submitted a representation to the respondents as well as the Institution in question which has resulted in the Institution turning down the request of the petitioner on the ground that as her husband failed to opt for retiring at the age of 60 years as such in absence of any such option no gratuity is payable to her.

Learned counsel for the petitioner contends that the provisions of the Payment of Gratuity Act, 1972 (for short, '1972 Act') would be applicable which would govern the payment of gratuity to her husband. Placing reliance on Sub-Section (2) of Section 4 of the 1972 Act, it is contended that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned. It is also contended that Section 14 of 1972 Act categorically provides that the provisions of 1972 Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

Learned counsel for the petitioner contends that once the husband of the petitioner had rendered sufficient years of service under the respondents then consequently even if he did not opt for retirement at the age of 60 years he would be entitled for payment of gratuity under 1972 Act. It is also contended that the Institution in question has rejected the claim of the petitioner on such ground which reflects patent non-application of mind inasmuch as it is admitted by the respondents that the petitioner's husband died in harness and consequently there was no occasion for him to opt for being retired at the age of 60 years and as such even in absence of an option the petitioner is to be paid gratuity on account of death of her husband.

On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that the petitioner has already been paid family pension. So far as the gratuity is concerned, it is contended that in terms of the Government Order dated 06.10.1990, a teacher has to specifically opt for retiring at the age of 60 years so as to be able to get gratuity. As the petitioner's husband never gave an option consequently in absence of such option no gratuity is payable to the petitioner.

Learned Standing Counsel also contends that the provisions of 1972 Act would not govern the payment of gratuity to the petitioner inasmuch as there are specific rules namely the Uttar Pradesh School and College Teachers Gratuity Fund, which govern the payment of gratuity to the teachers. Placing reliance on Section 2 (e) of 1972 Act, it is contended that the provisions of 1972 Act do not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. Placing reliance on the exclusion clause as provided in Section 2(e) of 1972 Act, it is contended that when the gratuity was payable to the petitioner's husband under the Uttar Pradesh School and College Teachers Gratuity Fund Rules then 1972 Act gets automatically excluded. It is thus contended that on both grounds as indicated above the petitioner is not entitled for payment of gratuity.

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.

So far as the applicability of 1972 Act or the Rules over which reliance has been placed by learned Standing Counsel, the said issue would also be examined by the respondents while passing the order. "

In view of above and consensus among learned counsel for the parties the impugned order dated 24.07.2013, contained in annexure no.1 to the writ petitioner is hereby quashed and the respondent no.2 is directed to take a decision in accordance with law and in terms of the aforesaid order dated 05.08.2019 within a period of two months from the date of production of a certified copy of this order.

With the aforesaid the writ petition is partly allowed.

.

.........................................(Rajnish Kumar,J.)

Order Date :- 22.11.2022

Banswar