Allowed¶35

Anil Kumar Srivastava v. State of U P and 3 Others

Gratuity – Death in harness

Allahabad HC1 Apr 2022WRIA/1239/2022

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Case brief

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What is this about?

gratuity; death in harness; option for retirement at age 60; Government Order dated 16.09.2009; retiral and terminal dues; Assistant Teacher; secondary education; Uttar Pradesh; Deputy Director of (Secondary) Education Varanasi Region; interest on delayed gratuity at 8%; writ petition allowed; Noor Jahan; Smt. Omwati; Smt. Brijesh; Smt. Mala Tripathi; Nazma Khatoon; Ranjana Kakkar

What did the court decide?

Writ petition allowed; impugned order dated 13.12.2021 quashed; respondents directed to compute and release gratuity payable to petitioner's wife in terms of the scheme within three months of production of certified copy, with interest at 8% per annum from the date of filing of the application till actual disbursement; no order as to costs. ¶35

Anil Kumar Srivastava Vs State of U P and 3 Others — Allahabad HC (2022) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner's wife, who died in harness before attaining the age of 60 years without exercising option for retirement at 60, was entitled to gratuity notwithstanding rejection of the claim on that ground alone. +1 more

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Court's answer

Government Order dated 16.09.2009 does not provide any bar for payment of gratuity where the employee died before attaining the age of 60 years without having given option for retirement at 60; denial of gratuity solely on that ground is unsustainable.

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Ratio / Principle

The facts of the present case are squarely covered by the earlier pronouncements of this Court (Noor Jahan, Smt. Omwati, Smt. Brijesh, Smt. Mala Tripathi); accordingly, the impugned order dated 13.12.2021 passed by the Deputy Director of (Secondary) Education, Varanasi Region, Varanasi is quashed.

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Key takeaways

Respondents are directed to compute the amount payable to the petitioner's wife towards gratuity in terms of the scheme and release the same within a maximum period of three months from the date of production of certified copy of the order.ratio¶34
The petitioner is entitled to interest at the rate of 8% per annum from the date of filing of the application till the gratuity amount is actually disbursed.ratio¶34

Detailed headnote1 paragraphs

Gratuity - Death in harness - Petitioner's wife, an Assistant Teacher in Nagar Palika Balika Uchchatar Madhyamik Vidyalay, Ruhatatta, Jaunpur, died in service on 12.11.2018 before attaining the age of 60 years without exercising option for retirement at 60 - Deputy Director of (Secondary) Education, Varanasi Region rejected the gratuity claim solely on that ground - Held: Government Order dated 16.09.2009 does not provide any bar to payment of gratuity to an employee who died before attaining 60 years without such option; as noted in Noor Jahan (followed), Clause 5 thereof provides gratuity payable at age 60 or upon death - Impugned order dated 13.12.2021 quashed, the case being squarely covered by Noor Jahan, Smt. Omwati, Smt. Brijesh and Smt. Mala Tripathi (Lucknow Bench) - Respondents directed to compute and pay gratuity within three months with interest at 8% per annum from date of filing of application till actual disbursement - Writ petition allowed, no order as to costs.

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Court No. - 36

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Case :- WRIT - A No. - 1239 of 2022

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Petitioner :- Anil Kumar Srivastava Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Rajnish Kumar Srivastava Counsel for Respondent :- C.S.C.

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Hon'ble Rajiv Joshi,J.

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Heard Sri Rajnish Kumar Srivastava, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1, 2 & 3.

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The present writ petition has been filed for quashing the order dated 13.12.2021 passed by Deputy Director of (Secondary) Education, Varanasi Region, Varanasi whereby the claim of petitioner for gratuity has been rejected on the ground that the wife of petitioner has not given option for retirement at the age of 60 years, therefore, not entitled for gratuity.

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Learned counsel for the petitioner submitted that wife of petitioner was working as Assistant Teacher in Nagar Palika Balika Uchchatar Madhyamik Vidyalay, Ruhatatta, Jaunpur, District- Jaunpur. Unfortunately, wife of petitioner died during the course of service on 12.11.2018. After the death of his wife petitioner applied for terminal dues. He was given all other benefits except gratuity which was refused on the ground that his wife 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 wife is fully entitled for gratuity even in case if she 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 wife is covered and the Government Order dated 16.09.2019 does not curtail the payment of gratuity to those employees, who have died before attaining the age of 60 years.

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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. &

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Ors.) decided on 5.8.2019.

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On the other hand, learned standing counsel submitted that denial of gratuity of petitioner's wife is in accordance with Government order, therefore, there is no illegality in the impugned order.

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

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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:-

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"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.

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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.

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

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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.

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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

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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.

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Writ petition is, accordingly, allowed."

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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:-

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

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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).

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

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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.

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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%.

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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."

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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.

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Similar controversy was also decided by Lucknow Bench of this Court vide order dated 5.8.2019 passed in the matter of

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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:-

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"Heard learned counsel for the contesting parties and perused the records.

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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.

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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."

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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 13.12.2021 passed by Deputy Director of (Secondary) Education, Varanasi Region, Varanasi is hereby quashed.

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Respondents are directed to compute the amount payable to the petitioner's wife 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.

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Writ petition is, accordingly, allowed . No order as to costs.

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Order Date :- 1.4.2022/Akbar

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Digitally signed by MOHAMMAD AKBAR Date: 2022.04.01 16:19:34 IST Reason: Location: High Court of Judicature at Allahabad

Anil Kumar Srivastava v. State of U P and 3 Others

Case brief

What is this about?

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Anil Kumar Srivastava v. State of U P and 3 Others

Case brief

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