Allahabad High Court
Barkha Jha vs State Of U.P. And 2 Others on 23 January, 2023
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- CIVIL MISC REVIEW APPLICATION No. - 12 of 2023
Applicant :- Barkha Jha
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Shailesh Kumar Shukla
Counsel for Opposite Party :- C.S.C.,Chandan Agarwal
Hon'ble Ashutosh Srivastava,J.
Order on delay condonation application:
This is an application to condone the delay in filing the application. The reasons for delay in filing the application has been explained in the affidavit filed in support of the delay condonation application.
Learned counsel for the opposite party does not want to file any counter affidavit to the delay condonation application.
I find that the delay has been satisfactorily explained. The delay is condoned. The delay condonation application is allowed. The review application is treated to be filed within time.
Office is directed to allot regular number to this review application.
Order on Review Application:
Heard Shri Shailesh Kumar Shukla, learned counsel for the applicant, learned Standing Counsel for the State-respondent and Shri Chandan Agarwal, learned counsel for the respondent Nos. 2 & 3.
This review application has been filed seeking review of the order dated 7.9.2022 passed by this Court in Writ-A No. 13863 of 2022 (Barkha Jha versus State of U.P. and 2 others).
Learned counsel for the petitioner submits that husband of the petitioner died on 15.2.2018 during service period and about 12 years of service remained at the time of his death. Learned counsel for the petitioner submits that the case of the petitioner was covered by the decision rendered in the case of (Usha Rani versus State of U.P.), Writ Petition No. 17399 of 2019 decided on 7.11.2019, however, due to typographical mistake in the order dated 7.9.2022, the simple direction to decide representation of the petitioner has been got transcribed.
After hearing learned counsel for the parties and perusal of the record, the Court finds that the case of the petitioner is covered by the case of Usha Rani (Supra). There is substance in the submission of learned counsel for the applicant. The order dated 7.9.2022 is liable to be reviewed. Consequently, the following orders is being passed:-
Petitioner's husband while working as Head Master at Primary School Khunak, District Budaun died on 15.2.2018. Grievance is that though other benefits have been released but the amount of gratuity has not been released. This petition has been filed for a direction upon the respondents to pay the amount of death cum retirement gratuity consequent upon death of petitioner's husband along with interest.
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 writ petitions. Reference can be had to the judgement 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 judgement 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 petitioner that the petitioner has represented the matter in this regard before the respondent no. 2 on 2.8.2022 but nothing has been done till now.
Learned Standing counsel on the other hand submits that no useful purpose would be served in calling for the counter affidavit and keeping the writ petition pending and an appropriate direction may be issued to the respondent no. 2 to examine the claim of the petitioner in the light of judgement in the case of Usha Rani (supra) within stipulated period.
In view of the aforesaid, respondent no. 2 is directed to decide the representation of the petitioner dated 2.8.2022 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 deceased employee.
The review application is accordingly allowed.
Order Date :- 23.1.2023
Ravi / Deepak
