Fuliya Devi vs The State Of Bihar And Ors
2021 Latest Caselaw 429 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.3608 of 2019
     ======================================================

Fuliya Devi Wife of Late Bhim Hembram Resident of Village- Lagania, Post Office- Shayampur, Police Station- Haweli Kharagpur, District- Munger

... ... Petitioner/s Versus

1. The State Of Bihar through the Secretary, Home Department, Bihar, Patna

2. The Director General of Police, Bihar, Patna

3. The Commandant Bihar Military Police- 2, Dehri, Bihar

4. The Accountant General of Bihar, Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Arvind Kumar Tewary, Advocate For the Respondent/s : Md. Nadim Seraj (GP-5) Mr. Shailesh Kumar, AC to GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date : 28-01-2021

Heard learned counsel for the parties.

2. The petitioner has brought this application for

issuance of mandamus against the respondent to make payment

of gratuity and other retiral benefits in respect of the husband of

the petitioner late Bhim Hembram. Late Bhim Hembram was a

constable in Bihar Military Police-2 at Dehri. Since late

Hembram was found absent from duty for a long period without

any information to the authorities concerned, Departmental

Proceeding No.87/1984 was initiated against him and finally

punishment of dismissal from service was awarded on

12.01.1985 by the Commandant of BMP-2. The husband of the Patna High Court CWJC No.3608 of 2019 dt.28-01-2021

petitioner preferred an appeal against the order of dismissal

which was heard and dismissed by the competent authorities.

3. Annexure-6 to the writ application is order dated

20.03.2010 which would reveal that the amount deducted in the

General Provident Fund account of Mr. Bhim Hembram was

already paid likewise the amount of Group Insurance was also

paid to him and it is specifically mention that no other deduction

was made.

4. The respondents in their counter affidavit

contended that the effect of dismissal from service was

forfeiture of all retiral benefits. Hence, the husband of the

petitioner was neither entitled to pension nor gratuity.

5. Learned counsel for the petitioner has relied on

the provisions of Section 4(6) of the Payment of Gratuity Act,

1972, for his submission that case of Mr. Hembram is not

covered by any of the requirement for forfeiture of gratuity.

Hence, Mr. Hembram was entitled for gratuity amount also and

after his death, his wife is entitled for the same.

6. Sub-Section (3) of Section 1 of Payment of

Gratuity Act clearly depicts that the said Act is not applicable in

the matter of State Government employees including the

department under which Mr. Hembram was working. The entire Patna High Court CWJC No.3608 of 2019 dt.28-01-2021

provisions of Section 1 are reproduced below:

"1. Short title, extend, application

and commencement.- (1) This Act may be

called the Payment of Gratuity Act, 1972.

(2) It extends to the whole of India:

Provided that insofar as it relates to

plantations or ports, it shall not extend to the

State of Jammu and Kashmir.

(3) It shall apply to-

(a) every factory, mine, oilfield,

plantation, port and railway company;

(b) every shop or establishment

within the meaning of any law for the time

being in force in relation to shops and

establishments in a State, in which ten or more

persons are employed, or were employed, on

any day of the preceding twelve months;

(c) such other establishments or

class of establishments, in which ten or more

employees are employed, or were employed,

on any day of the preceding twelve months, as

the Central Government may, by notification, Patna High Court CWJC No.3608 of 2019 dt.28-01-2021

specify in this behalf.

[(3-A) A shop or establishment to

which this Act has become applicable shall

continue to be governed by this Act

notwithstanding that the number of persons

employed therein at any time after it has

become so applicable falls below ten.]

(4) It shall come into force on such

date* as the Central Government may, by

notification, appoint."

In the matter of Mr. Hembram Bihar Pension Rules

are applicable. Rule 27 defines pension which includes gratuity.

7. Since the effect of punishment of dismissal is

forfeiture of entire retiral benefits the petitioner is not entitled

for gratuity.

8. Hence, this application is dismissed as devoid of

any merit.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                NAFR
CAV DATE
Uploading Date          29.01.2021
Transmission Date