Uma Shankar Mishra vs State Of U.P. And Another
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Allahabad High Court

Uma Shankar Mishra vs State Of U.P. And Another on 16 May, 2024

Author: Piyush Agrawal

Bench: Piyush Agrawal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:88561
 
Court No. - 36
 

 
Case :- WRIT - A No. - 5737 of 2022
 

 
Petitioner :- Uma Shankar Mishra
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Uma Nath Pandey
 
Counsel for Respondent :- Ashok Kumar Singh,Awadhesh Kumar,C.S.C.
 

 
Hon'ble Piyush Agrawal,J.
 

1. Heard Mr. Uma Nath Pandey for the petitioner, learned Standing Counsel as well as Mr. Awadhesh Kumar for the respondents.

2. By means of present petition, the petitioner is, inter alia, praying for the following relief:-

"I. a writ, order or direction in the nature of certiorari quashing the impugned order dated 14.1.2022 passed by the District Basic Education Officer, Basti (Annexure No. 7 to this writ petition).

II. a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to pay the Death Cum Retirement Gratuity to the petitioner along with interest admissible in facts and circumstances of the case."

3. Learned counsel for the petitioner submits that wife of the petitioner namely Smt. Padma Mishra was appointed as Head Mistress in Acharya Ram Chandra Shukla Balika Vidyalaya, Agauna, Kalwari, Distt. Basti which is now upgraded upto Intermediate institution. He submits that during service wife of the petitioner had died in harness on 31.5.2013. Thereafter the petitioner being her husband submitted relevant documents before respondent no. 2 for release of her post retiral / death dues. He further submits that though all the dues have been paid to the petitioner but death cum retirement gratuity benefit of the wife of the petitioner has not been given. The petitioner has made representation on 10.1.2022 but nothing has been done.

4. Learned counsel for the petitioner submits that similar controversy has already been decided by this Court in Writ A No. 17399 of 2019 (Usha Rani Vs. State of U.P. and others) decided on 7.11.2019 and the said order has been affirmed up to the stage of Hon'ble the Supreme Court vide order dated 29.4.2022 passed in Special Leave to Appeal (C) No. 19089 of 2021 filed by the State. He submits that as the controversy involved in the present writ petition has already been settled up to the stage of Supreme Court, therefore, the benefit of the judgement passed in the case of Usha Rani (supra) be accorded to the petitioner also.

5. Per contra, learned Standing Counsel supports the impugned order and submits that since the wife of the petitioner has not opted for pension, therefore, the impugned order is justified.

6. After hearing learned counsel for the parties, the Court has perused the records.

7. It is not in dispute that issue with regard to payment of death cum retirement gratuity benefit has already been settled by this Court in the case of Usha Rani (supra) and the same has been affirmed by Hon'ble the Apex Court in the S.L.P. filed by the State. The relevant para of the judgement passed in Usha Rani case (supra) by this Court, are quoted hereunder :-

"Heard learned counsel for the petitioner, learned standing counsel for respondent Nos. 1, 2 & 3 and Sri Chandan Agarwal, learned counsel for respondent Nos. 4 to 7.

Present petition has been filed against the order passed by respondent No. 7- Block Education Officer Block Kadarchauk, District Badaun in terms of which the claim of petitioner for gratuity has been rejected on the ground that daughter of petitioner has not given option for retirement at the age of 60 years, therefore, not entitled for gratuity.

Learned counsel for the petitioner submitted that daughter of petitioner was initially appointed as Assistant Teacher on 4.12.1999 and joined his services on 7.12.1999 in Primary School, Mallamai, Badaun. Unfortunately, daughter of petitioner died during the course of service on 28.8.2018. After the death of her daughter petitioner applied for terminal dues. The amount of gratuity was refused on the ground that her daughter has not filled up option for retirement at the age of 60 years. It is further submitted that as per Government Order dated 16.09.2009, petitioner's daughter is fully entitled for gratuity even in case if he has not given option for retirement at the age of 60 years, therefore, the order impugned is wholly arbitrary, inasmuch as under the relevant scheme of payment of gratuity, the claim of petitioner's daughter is covered and the Government Order dated 16.09.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.

In support of his contention, he has placed reliance upon several judgments of this Court as well as Lucknow Bench of this Court passed in Writ-A No. 40568 of 2016 ( Noor Jahan vs. State of U.P. and 4 others) decided on 4.1.2018, Writ-A No. 8679 of 2018 (Smt. Omwati Vs. State of U.P. and 3 others) decided on 9.3.2018, Writ-A No. 6049 of 2019 (Smt. Brijesh vs. State of U.P. and 5 others) decided on 26.04.2019 and Service Single No. 6173 of 2014 ( Smt. Mala Tripathi vs. State of U.P. Through Prin. Secy. Secondary Edu. Lko. & Ors.) decided on 5.8.2019. He next submitted that this controversy was again before this Court in Writ-A No. 14397 of 2019 (Renu Gupta Vs. State of U.P. and 5 others) in which the Court relying upon the aforesaid judgments allowed the writ petition vide order dated 24.10.2019.

On the other hand, learned standing counsel as well as Sri Chandan Agarwal, learned counsel for respondent Nos. 4 to 7 submitted that denial of gratuity of petitioner's husband is in accordance with Government order, therefore, there is no illegality in the impugned order, but could not dispute the aforesaid fact.

I have considered the rival submissions raised by counsel for the parties and perused the record as well as judgments relied upon.

Similar issue was considered by this Court in the matter of Noor Jahan (Supra) in which this Court vide order dated 04.01.2018 has clearly held that Government Order dated 16.09.2009 does not provide any bar for payment of gratuity in case petitioner's husband had not given option for retirement at the age of 60 years. Relevant paragraphs of the said judgment is quoted below:-

"Learned counsel for the petitioner submits that the order impugned is wholly arbitrary, inasmuch as under the relevant scheme for payment of gratuity, the claim of petitioner's husband is otherwise covered, and the Government Order dated 16.9.2009 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.

Sri R.B. Yadav, learned counsel for the respondent nos.3 and 4, submits that the denial of gratuity to petitioner is in accordance with the Government Order.

I have heard learned counsel for the parties, and have perused the materials brought on record.

Government Order dated 16th September, 2009 provides for revision of pension and other retiral benefits to the retired employees of the department of basic education. This Government Order grants higher benefits w.e.f. 1.1.2006. Clause 4(1) of the Government Order provides that pension would not be payable to those employees, who have not completed 10 years of qualifying service, but the employees who retire upon attaining the age of superannuation of 60 years would be entitled to gratuity and other service benefits. The Government Order does not restrict payment of gratuity to an employee, who is otherwise covered under the scheme just because he has not attained the age of 60 years. Reference to age of 60 years is due to fact that age of superannuation under the rule is otherwise 60 years. Position has otherwise been clarified by Clause 5 of the Government Order, which provides that gratuity would be payable at the age of 60 years or upon death. The respondents, therefore, were not justified in rejecting petitioner's claim for payment of gratuity, in terms of Government Order dated 16.9.2009. The impugned action, therefore, cannot be sustained. Order dated 8.7.2016 is, accordingly, quashed.

A direction is issued to the respondents to compute the amount payable to petitioner's husband towards gratuity in terms of the scheme and release the same, within a period of three months from the date of production of certified copy of this order. The petitioner shall also be entitled to interest at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.

Writ petition is, accordingly, allowed."

In the matter of Smt. Omwati (Supra), Court had dealt for payment of interest upon delayed payment of gratuity and held that petitioner is entitled for interest. Relevant paragraph of the said judgment is quoted below:-

"The only other issue that survives for consideration is whether, the petitioner is entitled to payment of interest on the delayed payment of gratuity.

This aspect has been dealt with by Division Bench of this Court in Special Appeal (Defective) No.430 of 2016, Smt. Nazma Khatoon Vs. State of U.P. and others where a learned Single Judge had rejected the prayer for interest on delayed payment of gratuity. However, the Division Bench opined that interest is a necessary corollary to the retention of money by another person. It is neither compensatory nor penal in nature. It was so held, upon an earlier Division Bench decision in Smt. Ranjana Kakkar W/O Late Prof. Amarnath Kakkar Vs. State of Uttar pradesh and others, 2008(10) ADJ 63 (DB).

The Division Bench in Smt. Nazma Khatoon (supra) went on to award 8% interest on the gratuity payable.

Counsel for the petitioner has also relied upon the Government order No.SA-3-1901/10-2002-971/80 dated 30.10.2002, which provides for payment of interest on delay in payment of gratuity and post retiral benefits beyond a period of 3 months from the date they are payable.

Under the circumstances, this Court considers it appropriate to award the same rate of interest on the delayed payment as has been awarded by the Division Bench in Smt. Nazma Khatoon(supra), the rate being 8%.

For the reasons given above, this writ petition is allowed. The impugned order passed by the District Inspector of Schools, Sambhal dated 01.01.2018 is hereby set aside. The respondents are directed to calculate the gratuity payable to the petitioner along with 8% interest thereon by a speaking order and to ensure payment of the said amount to the petitioner within a period of six weeks from the date, a certified copy of this order is filed before him."

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, Distruict 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. The petitioner shall also be entitled to interest at the rate of 8% per annum, from the date of filing of the application till the amount is actually disbursed.

Writ petition is, accordingly, allowed.

No order as to costs."

8. In view of above, the petitioner is also entitled to give the benefit of the aforesaid judgement.

9. In the results, the writ petition succeeds and is allowed. The impugned order dated 14.1.2022 passed by the District Basic Education Officer, Basti is quashed.

10. A writ of mandamus is issued to the respondent authority to compute the payable amount of death cum retirement gratuity of petitioner's wife and release the same in favour of the petitioner along with admissible interest from the date of filing of the application till the amount is actually disbursed, in pursuance of the law laid down by this Court in the case of Usha Rani (supra) within a period of one month from today.

Order Date :- 16.5.2024

Rahul Dwivedi/-