Special Appeal challenging an order denying gratuity benefits to the deceased's family. The court held that the worker's failure to voluntarily continue service beyond the statutory retirement age implied a deemed option to forego gratuity, aligning with prior precedents.
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Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 40 of 2021
Appellant :- State Of U.P. And 6 Others Respondent :- Usha Rani Counsel for Appellant :- Pranab Kumar Ganguli Counsel for Respondent :- Kamal Kumar Kesherwani
Hon'ble Munishwar Nath Bhandari,J. Hon'ble Rohit Ranjan Agarwal,J.
Order on Civil Misc. Delay Condonation Application
Since the matter has been heard and decided on merits, the application for condonation of delay is not opposed by the counsel for the side opposite and accordingly it is accepted.
Delay in filing the appeal is condoned.
Accordingly the application is allowed as aforesaid.
Order on Exemption Application
The application seeking exemption from filing certified copies of the order of the High Court is allowed.
The defect stands cured.
Order on Appeal
By this appeal, a challenge is made to the judgment dated 07.11.2019 and its correction order dated 12.12.2019 whereby the writ petition preferred by the non-appellant was allowed. The writ petition was ordered to governed by the judgment in the case of Smt. Sarvesh Kumari Vs. State of U.P. others decided on 14.05.2019 and also in the leading case of Smt. Ranjana Kakkar Vs. State of U.P. and others reported in 2008 (10) ADJ 63 . In the case of Smt. Ranjana Kakkar (Supra) facts were almost similar.
As per the government order, the employees were given option to continue in service beyond the normal period of retirement. The extension of service was permitted from 58 years to 60 years but with denial of the benefit of gratuity.
Options were sought and given by the employees in case of Smt. Ranjana Kakkar (Supra) , but in the present case, no option was given by the non-appellant to continue her in service beyond the normal age of retirement with denial of the benefit
of gratuity. It is however fact that in absence of option under the government order, it was taken to be a case of deemed option and accordingly family was denied benefit of gratuity. The age of the deceased was 44 years while in the case of Smt. Ranjana Kakkar (Supra) , it was 45 years.
In the light of the aforesaid, what we find that the employee who had not continued in service after attaining the age of 58 years in a given case or 60 years in other cases would mean effective option to continue in with for denial of gratuity.
Accordingly, what we find that the present case is covered by the judgment of this court in the case of Smt. Ranjana Kakkar (Supra) . An exception can be carved only when they continue in service without withdrawal of option even after the attaining the age of 58 years in a given case or beyond 60 years in other cases as normal age of retirement was changed from 58 years to 60 years by the amendment in the year 2004.
This court has taken a view to hold that an employee continue in service beyond 58 years and died thereupon would not be entitled to seek benefit of gratuity in the case of State of U.P. through its Secretary Vs. Prabha Shukla decided on 16.12.2020 but it would not be applicable to the facts of this case.
This appeal is accordingly, dismissed .
Order Date :- 28.1.2021 //Nirmal//
2 issues framed by the court
Whether an employee who did not continue in service beyond the age of 58 or 60 years is deemed to have opted out of gratuity benefits upon death.
Whether the judgment in State of U.P. through its Secretary Vs. Prabha Shukla is applicable to the facts of the present case.
Colour shows how this judgement treated each authority
State Of U.P. And 6 Others
Usha Rani
Munishwar Nath Bhandari
Rohit Ranjan Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
