Smt. Mithlesh Devi And 3 Others vs State Of U.P. And 2 Others
2022 Latest Caselaw 15159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 17314 of 2022
 

 
Petitioner :- Smt. Mithlesh Devi And 3 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ritesh Upadhyay
 
Counsel for Respondent :- C.S.C.,Rajesh Yadav
 

 
Hon'ble Ashutosh Srivastava,J.

Heard Sri Ritesh Upadhyay, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and Sri Rajesh Yadav, learned counsel for the respondent No. 2 and 3.

This petition has been filed for a direction upon the respondents to pay the amount of death-cum-retirement gratuity consequent upon death of Sewaram to the petitioner no. 1, Omkar Singh to the petitioner no. 2, Mahaveer Singh to the petitioner no. 3 and Chandrapal Singh to the petitioner no. 4 along with interest.

Husband of the petitioner no. 1 was working as Headmaster in Prathmik Vidyalaya, Hajoorabad Garhi, Block Binauli, District Baghpat, who died in harness on 28.11.2005, husband of petitioner no. 2 was working as Headmaster in Prathmik Vidyalaya Malmajara Jiwana, Block Binauli, District Baghpat, who died in harness on 04.09.1999, husband of petitioner no. 3 was working as Assistant Teacher in Prathmik Vidyalaya Biharipur No. 2, Block Baghpat, District Baghpat, who died in harness on 06.10.2005 and father of petitioner no. 4 was working as Assistant Teacher in Uccha Prathmik Vidyalaya Baghpat, Block Baghpat, District Baghpat, who died in harness on 08.11.2011. Grievance of the petitioners is that though other retiral benefits have been paid but the amount of gratuity has not been released.

It appears that the amount of Gratuity has not been paid on the ground that option to retire at the age of 60 years was not exercised by the deceased employee.

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, District 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. ............"

It is also submitted by learned counsel for the petitioners that the petitioner nos. 1, 3 and 4 have represented the matter in this regard before the respondent No. 2, District Basic Education Officer, District Baghpat on 03.08.2022. 25.07.2022 and 05.08.2022 respectively but no orders have been passed till date.

Learned Standing counsel on the other hand submits that an appropriate direction may be issued to the respondent No.2 to examine the claim of the petitioner nos. 1, 3 and 4 in the light of judgement in the case of Usha Rani (supra) within stipulated period.

In view of the aforesaid, the writ petition stands disposed of with the direction to the respondent No.2, District Basic Education Officer, District Baghpat to decide the representation of the petitioner nos. 1, 3 and 4 dated 03.08.2022. 25.07.2022 and 05.08.2022 respectively in light of judgement in the case of Usha Rani (Supra) in accordance with law within a period of three months from the date of production of a certified copy of this order. All consequential action shall be taken without any further loss of time.

Petitioner's claim for gratuity shall not be rejected on the ground that "Option Form" has not been filled by the husband of the petitioner no. 1 and 3 and father of the petitioner no. 4.

Counsel for the petitioners further submits that in respect thereof petitioner no. 2 has already preferred a representation dated 05.08.2022 before the respondent No. 2, but the same is still pending consideration. He further submits that purpose of filing this writ petition would be served if directions are issued to the respondent No.2 to pass appropriate orders on the pending representation of the petitioner.

Learned counsels appearing for the respondents submit that they have no objection to the aforesaid proposition.

So far as the petitioner no. 2 is concerned following orders is being passed:-

Considering the submissions advanced, this Court is of the opinion that no useful purpose would be served by keeping the writ petition pending and the same is accordingly, disposed of expecting the respondent No. 2, seized with the representation of the petitioner no. 2 dated 05.08.2022, to pass appropriate orders thereon, after considering all aspects of the matter, strictly in accordance with law, preferably within a period of two months from the date of service of certified copy of this order.

Needless to say that this Court has not expressed any opinion on the merits of the claim of the petitioner and it shall be open for the respondent No. 2 to pass appropriate orders strictly in accordance with law.

Order Date :- 31.10.2022

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