Uttarakhand High Court
Balbeer Singh Pokhariya vs State Of Uttarakhand & Others on 13 January, 2021
Reserved judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 3184 of 2018 S/S
(Under Article 226 of the Constitution of India)
Balbeer Singh Pokhariya
S/o Late Shri Pratap Singh Pokhariyal
R/o C-20/2 New Tehri,
Tehri Garhwal, District Tehri Garhwal .....Petitioner
Versus
State of Uttarakhand & others ....Respondents
With
Writ Petition No. 3543 of 2018 S/S
Ramesh Chandra Pant
S/o Late Shri Gokulanand Pant
R/o Village Berinag, Near GIC New Market,
Berinag, District Pithoragarh .....Petitioner
Versus
State of Uttarakhand & others ....Respondents
With
Writ Petition No. 3533 of 2018 S/S
Ram Swaroop Rathuri
S/o Late Shri Bachir Ram Raturi,
R/o Village Patiyoun, P.O. Mohebewala,
District Dehradun .....Petitioner
Versus
State of Uttarakhand & others ....Respondents
With
Writ Petition No. 3202 of 2018 S/S
Girish Chandra Joshi
S/o Late Shri Gunanand Joshi,
R/o Badrish Enclave I-D,
Bhoniwala, Dehradun .....Petitioner
Versus
2
State of Uttarakhand & others ....Respondents
With
Writ Petition No. 3531 of 2018 S/S
Ashok Kumar Bahukhandi
S/o Pitambar Dutt,
R/o Village-Grastanganj, P.O. Kumbhichaur,
Kotdwar, District Pauri Garhwal .....Petitioner
Versus
State of Uttarakhand & others ....Respondents
Mr. Harendra Belwal, Advocate for the petitioner.
Ms. Anjali Bhargava and Mr. P.C. Bisht, Addl. C.S.C. with Mr. Sushil Vasishtha,
Standing Counsel with Mr. Virendra Singh Rawat, Brief Holder for the State.
Hon'ble Lok Pal Singh, J.
Since the controversy involved in aforementioned
petitions is same, therefore, these petitions are being
disposed of by this common judgment.
2. By means of present petitions, the petitioners
have sought a writ petition in the nature of mandamus
commanding the respondents to fix and release, gratuity,
leave encashment and pension alongwith its arrear treating
him regular in service and also grant promotional pay scale
alongwith its arrears. Further prayer has been made in the
nature of mandamus commanding the respondents to
calculate and release the interest @10% per annum on the
delayed payment in respect of gratuity on he when it was
due.
3. Factual matrix of the case is that the
petitioners are appointed on contractual basis on
different posts. Thereafter, services of the petitioners
were regularized by the respondent department. The
respondent department after considering the past
satisfactory services of the petitioners regularized the
services of the petitioner. The petitioners continued to
serve the department till they attained the age of
superannuation. Grievance of the petitioners is that after
retirement, respondent department is not paying retiral
benefits to the petitioners. Hence, these petitions.
4. Learned counsel for the petitioners would
submit that since the petitioners retired from the
Department after attaining the age of their
superannuation, therefore, they are entitled to all post
retiral dues alongwith interest to the petitioners but such
benefits were not given to them. He would further
submit that the Government has also issued Government
Orders which provided that every employee is entitled
for promotional pay scale on completion of satisfactory
service in the department. He also referred the G.O.
dated 22.02.2010, in which it is mentioned that the
person who were promoted/absorbed in the department,
their past services can be counted for the purpose of
selection grade and for promotion, therefore, the
petitioners are also entitled for promotional pay scale but
the same not been given to the petitioners.
5. Heard learned counsel for the parties and
perused the material available on record.
6. Learned counsel for the petitioners states that
the matter is covered by the decision of the Hon'ble
Supreme Court in the case of Netram Sahu Vs. State of
Chhattisgarh and another reported in (2018) 5 SCC 430.
Relevant paragraphs of the said judgment is extracted
below:
"13. The submission of the learned counsel for the
respondent-State was that the appellant could not be held
eligible to claim the gratuity amount because out of the total
period of 25 years of his service, he worked 22 years as
daily wager and only 3 years as regular employee. It is for
this reason, the learned counsel urged that the appellant
could not be said to have worked continuously for a period
of 5 years as provided under the Act so as to make him
eligible to claim gratuity.
14. We do not agree with this submission of learned counsel
for the respondent-State for more than one reason. First,
the appellant has actually rendered the service for a period
of 25 years; Second, the State actually regularized his
services by passing the order dated 06.05.2008; Third,
having regularized the services, the appellant became
entitled to claim its benefit for counting the period of 22
years regardless of the post and the capacity on which he
worked for 22 years; Fourth, no provision under the Act was
brought to our notice which disentitled the appellant from
claiming the gratuity and nor any provision was brought
to our notice which prohibits the appellant from taking
benefit of his long and continuous period of 22 years of
service, which he rendered prior to his regularization for
calculating his continuous service of five years.
15. In our considered opinion, the High Court committed an
error in placing reliance on the decision of this Court
in Secretary, State of Karnataka & Ors. vs. Umadevi(3) &
Ors., (2006) 4 SCC 1 to deny the relief of grant of gratuity
to the appellant. In the case at hand, the High Court should
have seen that the services of the appellant was actually
regularized by the State and, therefore, the law laid down in
Umadevi(supra) could not be relied on. Indeed, even the
decision of Umadevi (supra) makes a distinction in cases
and where the services stand regularized, the ratio of
Umadevi to deny the relief would not apply.
16. In our considered opinion, once the State regularized
the services of the appellant while he was in State services,
the appellant became entitled to count his total period of
service for claiming the gratuity amount subject to his
proving continuous service of 5 years as specified
under Section 2A of the Act which, in this case, the
appellant has duly proved.
18. It was indeed the State who took 22 years to regularize
the service of the appellant and went on taking work from
the appellant on payment of a meager salary of Rs.2776/-
per month for 22 long years uninterruptedly and only in the
last three years, the State started paying a salary of
Rs.11,107/- per month to the appellant. Having regularized
the services of the appellant, the State had no justifiable
reason to deny the benefit of gratuity to the appellant which
was his statutory right under the Act. It being a welfare
legislation meant for the benefit of the employees, who
serve their employer for a long time, it is the duty of the
State to voluntarily pay the gratuity amount to the appellant
rather than to force the employee to approach the Court to
get his genuine claim.
19. In view of the foregoing discussion, we cannot agree
with the reasoning and the conclusion arrived at by the High
Court which is legally unsustainable. It is really unfortunate
that the genuine claim of the appellant was being denied by
the State at every stage of the proceedings up to this Court
and dragged him in fruitless litigation for all these years.
21. These observations apply in full force against the State
in this case because just case of the appellant was being
opposed by the State on technical grounds. As a
consequence, the appeal succeeds and is allowed. Impugned
judgment/order passed by the High Court (Single Judge and
Division Bench) are set aside and the orders of the
Controlling Authority and Appellate Authority are restored
with cost of Rs.25,000/- payable by the State to the
appellant. Cost to be paid by the State along with the
payment of gratuity amount."
7. In writ petition no. 3202 of 2018, a counter
affidavit has been filed by respondent no.3, in which it is
admitted that petitioner is superannuated from the
respondent department after attaining the age of
superannuation. It is also stated that the case of the
petitioners are covered by the judgment rendered by
Hon'ble Apex Court in aforesaid judgment (Supra). It is
also stated that if any employee rendered continuous
service as daily wager and if his services were later
regularized, he would be eligible to be considered for
payment of gratuity from the date of his induction as
daily wager till the regularization of his services. In the
counter affidavit, the relevant paragraphs of the said
judgment are also referred. Said paragraphs as referred
in the counter affidavit are extracted as follows:
8. In the counter affidavit, It is also admitted
that the Hon'ble Apex Court in the case of "D.D. Tewari
Vs. Uttar Haryana Bijli Vitran Nigam Limited and other"
in Civil Appeal No. 7113 of 2014 has laid down the
principle of law. The relevant paragraphs of the said
judgment are extracted below:
".......5. It is needless to mention that the
respondents have erroneously withheld payment of
gratuity amount for which the appellants herein are
entitled in law for payment of penal amount on the
delayed payment of gratuity under the provisions of the
Payment of Gratuity Act, 1972. Having regard to the
facts and circumstances of the case, we do not propose
to do that in case in hand.
6. For the reasons stated above, we award
interest at the rate of 9% on the delayed payment of
pension and gratuity amount from the date of
entitlement till the date of actual payment. If this
amount is not paid within six weeks from the date of
receipt of a copy of this order, the same shall carry
interest at rate of 18% per annum from the date of
amount falls due to the deceased employee. With the
above directions, this appeal is allowed."
9. It also admitted by the respondent no. 3 in his
counter affidavit that the case of the petitioner is
covered by the judgment (supra). It is also stated in the
counter affidavit that in view of the facts and
circumstances of the case, the writ petition is deserves
to be allowed.
10. Learned Government pleader would submit
that the Court may decide the writ petitions in terms of
the judgment (supra).
11. Having heard learned counsel for the parties
and after being satisfied that the matter is squarely
covered with the judgment (supra), the writ petitions are
allowed in terms of the judgment of Netram Sahu
(Supra).
12. Order accordingly.
(Lok Pal Singh, J.)
Mamta
Dated: 13.01.2021
