60 साल से पहले मृत्यु होने पर भी देनी होगी ग्रेच्युटी, ब्याज सहित भुगतान पर बीएसए को निर्णय लेने का निर्देश

60 साल से पहले मृत्यु होने पर भी देनी होगी ग्रेच्युटी, ब्याज सहित भुगतान पर बीएसए को निर्णय लेने का निर्देश

 

इलाहाबाद हाईकोर्ट ने कहा है कि साठ वर्ष की आयु से पूर्व कर्मचारी की मृत्यु होने पर भी ग्रेच्युटी का भुगतान करना होगा।

यह नहीं कहा जा सकता है कि मृत्यु 60 वर्ष की आयु से पूर्व हुई है इसलिए ग्रेच्युटी नहीं दी जाएगी। कोर्ट ने कहा कि 16 सितंबर 2009 के शासनादेश में 60 साल की आयु से पहले मृत्यु की दशा में ग्रेच्यूटी भुगतान पर रोक नहीं है। 

शासनादेश के क्लाज पांच में स्पष्ट है कि 60 साल का होने या मृत्यु की दशा में ग्रेच्यूटी भुगतान किया जाएगा। कोर्ट ने 60 साल का विकल्प न देने के आधार पर सहायक अध्यापक की विधवा को ग्रेच्यूटी का भुगतान करने से इंकार करने के जिला बेसिक शिक्षा अधिकारी कन्नौज के तीन मार्च 2020 के आदेश को रदृद कर दिया है और आठ फीसदी ब्याज के साथ भुगतान करने का निर्देश दिया है।

 यह आदेश न्यायमूर्ति एम सी त्रिपाठी ने कन्नौज की प्रेम कुमारी की याचिका की स्वीकार करते हुए दिया है। याची के अधिवक्ता का कहना था कि याची के पति सुरवेन्द्र सिंह ग्राम्य शिक्षा निकितन जूनियर हाई स्कूल जफराबाद उन्‍नाव में 1995 से सहायक अध्यापक थे। 10 फरवरी 19 को उनकी सेवा काल में मृत्यु हो गई। परिवार को पेंशन आदि का भुगतान किया गया किंतु ग्रेच्यूटी रोक दी गई। कहा गया कि उन्होंने 60 साल में सेवानिवृत्त लेने का विकल्प नहीं भरा था।

Court No. - 83

Case :- WRIT - A No. - 5108 of 2020

Petitioner :- Prem Kumari

Respondent :- State Of U.P. And 7 Others

Counsel for Petitioner :- Kamal Kumar Kesherwani,Mohan Lal

Counsel for Respondent :- C.S.C.,Arun Kumar

Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Kamal Kumar Kesherwani, learned counsel for the

petitioner and Shri Sanjay Kumar Singh, learned Addl. Chief

Standing Counsel for State respondents. 

The petitioner is before this Court assailing the validity of the

order dated 3.3.2020 passed by sixth respondent by which the

amount of gratuity claimed by the petitioner after death of her

husband (deceased employee) has been refused. 

At the very outset, learned counsel for the petitioner apprises to

the Court that the controversy in hand is squarely covered by

the judgment of this Court dated 7.11.2019 in Writ-A No.17399

of 2019 (Usha Rani v. State of U.P. & Ors.) and as such similar

indulgence may also be accorded in this writ petition also. For

ready reference, the operative portion of the judgment dated

7.11.2019 is quoted as under:-

"..............I have considered the rival submissions raised by counsel for the parties and

perused the record as well as judgments relied upon. 

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:- 

"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. 

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. 

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

record. 

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. 

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 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. 

Writ petition is, accordingly, allowed." 

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:- 

"The only other issue that survives for consideration is whether, the petitioner is entitled

to payment of interest on the delayed payment of gratuity. 

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). 

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

gratuity payable. 

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. 

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%. 

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." 

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. 

Similar controversy was also decided by Lucknow Bench of this Court vide order dated

5.8.2019 passed in the matter of 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:- 

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

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. 

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." 

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 30.7.2019 passed by respondent No.

7- Block Education Officer Block Kadarchauk, Distruict Badaun is hereby quashed. 

Respondents are directed to compute the amount payable to the petitioner's husband

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. 

Writ petition is, accordingly, allowed. 

No order as to costs."

Learned counsel for the petitioner submits that relying on the

judgment in Usha Rani (Supra) the Court has granted

indulgence in several writ petitions including Writ-A No.19909

of 2019 (Smt. Prabha Shukla v. State of U.P. & Ors.) and Writ-

A No.47402 of 2014 (Kallu Singh Mathur v. State of U.P. &

Ors. and the petitioner on the same footing is also entitled for

the similar relief. 

So far as factual and legal aspect is concerned, the same has not

been disputed by learned Addl. Chief Standing Counsel. 

In the facts and circumstances of the case, the order impugned

cannot sustain and is accordingly set aside. The writ petition is

allowed in terms of the judgment in Usha Rani (Supra). The

matter is relegated to sixth respondent to decide the claim of the

petitioner in the light of the observations made by this Court in

Usha Rani (Supra).

The party shall file computer generated copy of such order

downloaded from the official website of High Court Allahabad,

self attested by the petitioner alongwith a self attested identity

proof of the said person (preferably Aadhar Card) mentioning

the mobile number to which the said Aadhar Card is linked. 

The concerned Court/Authority/Official shall verify the

authenticity of such computerized copy of the order from the

official website of High Court Allahabad and shall make a

declaration of such verification in writing.

Order Date :- 8.7.2020