Gujarat High Court
Mahendra Assanand Kalra vs State Of Gujarat on 1 August, 2025
NEUTRAL CITATION
C/SCA/15884/2020 ORDER DATED: 01/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15884 of 2020
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MAHENDRA ASSANAND KALRA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
MR HENIL SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,4,5
SHIVANG P JANI(8285) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2025
ORAL ORDER
1. This petition is filed for the following prayers:
"6(A) Your Lordship may be pleased to issue a writ of
mandamus and/or any other writ, order or direction in the
nature of mandamus directing the respondents to grant
gratuity amount and the amount under the head of leave
encashment as claimed in the representation dated
05.04.2019 and 08.09.2020 (ANNEXURE-C);
(B) Pending admission, hearing and final disposal of the
present petition, the Hon'ble Court may be pleased to direct
the respondents to submit the report as regards the process
undertaken pursuant to the representation and request made
by the petitioner seeking gratuity and leave encashment
amount by the representation dated 05.04.2019 and
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08.09.2020 (Annexure-C);
(C) xxxxx"
2. The brief facts leading to filing of this petition are
such that the petitioner is the husband of deceased
Dr.Kumkum Mahendra Kalra, who was appointed as Medical
Officer in the respondent no.2 Institute and had served in
the said institute for 32 long years and had an unblemished
career; she retired on 31.7.2017 but on account of semester
closure, she was given extension till 31.10.2017, however, she
retired on 31.8.2017 after closure of office hours; that the
gratuity amount and the amount under the head of leave
encashment were not paid to her and therefore, she
approached the institute on number of occasions; thereafter,
she died on 27.2.2019 and with a view to pursue her
legitimate right of gratuity and leave encashments benefits,
the present petitioner-husband of the deceased had filed this
petition, after making written representations to the
respondent nos.2 and 3 on 5.4.2019 and 8.9.2020 and waiting
for response, which he never received.
3. Heard learned advocates for the parties.
3.1 Learned advocate for the petitioner has submitted
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C/SCA/15884/2020 ORDER DATED: 01/08/2025
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that there is no dispute with regard to the period of service
put in by the wife of the petitioner; that she had put in 32
years of service and therefore entitled to gratuity as provided
under the law and the leave encashment amount; that she
had an unblemished career; that in a case almost like the
case of the petitioner being Special Civil Application No.3982
of 2020 which was preferred by one Dr.Kandarp Bhaskarai
Chhaya, wherein on a civil application being moved by the
respondent nos.2 and 3 requesting to permit them to deposit
a sum of Rs.9,43,343/- before this Court which was the
gratuity due and payable to the said petitioner and this
Court granted permission to the said petitioner to accept the
said cheque and the said cheque was handed over by the
learned advocate for the respondent nos.2 and 3 to the
learned advocate for the petitioner and the right to claim
interest was kept open. He, therefore, submitted that the
wife of the petitioner is also entitled for the said reliefs
looking to the tenure of service put in by her. He, therefore,
prayed to allow this petition.
3.2 Per contra, learned AGP for the respondents-state
authorities has submitted that the wife of the petitioner-
Dr.Kumkum Mahendrabhai Kalra was an employee of the
Homeopathic Medical College, which is run by non-granted
public trusts receiving grant-in-aid from the state government;
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that the petitioner is not entitled to the benefits which are
admissible and available to the government employees; only
because the government is bearing 100% expenditure towards
the pay and allowances of the staff of such college, it does
not mean that the petitioner is to be treated as a
government employee; that there is an alternative remedy
available to the petitioner to approach the Controlling
Authority under the Payment of Gratuity Act, 1972, which he
has not been availed and has directly approached this Court;
therefore, she is not entitled for the claims as prayed for and
therefore prayed to dismiss this petition. Learned AGP has
relied on the citation of the Hon'ble Apex Court in the case
of Prabhakar V/s Joint Director Sericulture Department
reported in 2015(0) AIJEL-SC 57194 and submitted that this
petition is filed in the year 2020 though she had retired in
the year 2017 and thereafter she expired in the year 2019
and the husband of the petitioner filed this petition in the
year 2020 and therefore this petition is required to be
dismissed on the point of delay, laches and acquiescence also.
3.3 Learned advocate Mr.Archit Jani for the
respondent no.3 submitted that the similarly situated persons
on whom the petitioner is relying have approached the
controlling authority constituted under the Payment of
Gratuity Act, 1972 and then they have filed the petitions;
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further the respondent no.3 is a fully funded and granted by
the state and therefore, it is the liability of the state
government to grant gratuity in favour of the petitioner. He
relied on the judgment of Jagdish Prasad Saini V/s State of
Rajasthan reported in 2022(0) AIJEL 69905 and submitted
that the state is responsible for the payment and if the state
gives the grant for the same, the respondent will in turn,
pay the same to the petitioner. He, therefore, prayed to pass
appropriate orders.
4. I have heard the learned advocates for the parties
and also perused the material placed on record.
4.1 At the outset, it transpires from the record that
the wife of the petitioner worked for 32 long years with the
respondent no.2-institute, she retired in the year 2017 and
later on unfortunately died in the year 2019; that she had
been pursuing for getting her legal dues by following up with
the respondents authorities until she was alive; later on, on
her death, her husband took over the fight and filed this
petition; that similarly situated persons viz. Kandarp
Bhaskarrai Chhaya and Dineshkumar Mohanlal Bhavsar who
had filed Special Civil Application Nos.3982 of 2020 and 6675
of 2021 respectively have been awarded the gratuity and
leave encashment as per entitlement by the Controlling
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Authority and on the petitions being filed, this Court had
awarded interest for the late payment as well as cost on the
respondent authorities. Thus, without entering into any
further discussion, it can be held that the wife of the
petitioner who was similarly situated to the petitioners of
those petitions is also entitled for the gratuity and leave
encashment.
4.2 As regards the contention of the respondents
authorities that the petitioner has an alternative remedy
under the Payment of Gratuity Act, which is not availed by
the petitioner cannot be accepted for the fact that there is
no dispute with regard to the entitlement of the gratuity
amount, which also can be made out from the submissions
made by learned advocates for the state and institute to the
effect that they are throwing the burden on each other to
pay the amount to the petitioner, and the issue is that they
are not paying the same to the petitioner, and therefore this
petition is filed seeking a direction to the respondents to pay
the same. It transpires that the state and the institute are
just raising technical objections to avoid the payment to the
petitioner, to which, she was entitled to.
4.3 From the entire material on record and the
submissions made by learned advocates for the respondents,
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it transpires that the state and the respondent-institute have
tried to shift the burden on each other and ultimately not
paid the legal dues of the wife of the petitioner who was the
employee of the respondent-institute for 32 long years and
has died without getting the fruits of the service career,
which cannot be permitted. The gratuity and leave
encashment are to be paid within a period of thirty days,
even as per the provisions of the Act itself, which is not
given even after so many years, only because of the inter se
dispute between the state and the institute-Trust.
4.4 The state and the institute should have come out
of the differences and decide as to who will pay the retiral
benefits to the retired employee before the retirement, so that
the retired employee, after working for such a long period,
may not be pushed into legal battle for getting their legal
dues that too after attaining the title of `senior citizen'. In
the present case, even the employee has expired without
getting the fruits of her long working career. The directions
given by this Court in the orders passed in the case of
similarly situated employees are reiterated that the state
government is directed to issue appropriate instructions to all
such institutions clarifying its stand so that a retired
employee is not made to undergo the ordeal for claiming his
gratuity or other benefits after his/her retirement.
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4.5 In view of the above facts and the orders passed
in similarly situated employees as referred to hereinabove,
this petition is allowed. The respondent-State is directed to
pay the amount of gratuity and leave encashment as per the
entitlement of the deceased wife of the petitioner, within a
period of six weeks from the date of receipt of this order
and it will be open for the respondent-state authority to
recover the same from the respondent-institute, if it is
permissible under the law.
(SANDEEP N. BHATT,J)
SRILATHA
