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Uttarakhand High Court · body

2013 DIGILAW 760 (UTT)

PADAM SINGH v. STATE OF UTTAR PRADESH

2013-11-27

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral). 1. Shri Chander Singh son of Dan Singh was working as permanent Beldar in the office of Executive Engineer (Construction Division I), Nainital. Shri Chander Singh stood superannuated on attaining the age of superannuation on 30.6.1993. Shri Chander Singh expired on 2.9.1993. Petitioner claiming himself to be a real nephew of deceased employee Shri Chander Singh applied for succession certificate to obtain amount of gratuity and commutation of pension. Learned Additional Civil Judge, Nainital vide order dated 26.3.1996 issued succession certificate in favour of the petitioner accepting him as real nephew of Shri Chander Singh. Thereafter, petitioner applied to the Public Works Department to release the amount of gratuity and commutation of pension in favour of the petitioner being legal heir of Shri Chander Singh. Since, the Department failed to release the amount of gratuity and commutation of pension in favour of petitioner, therefore, petitioner was compelled to file present writ petition under Article 226 of the Constitution of India. 2. Mrs. Beena Pandey, learned Standing Counsel appearing for respondent nos. 1, 2, 3 and 4 vehemently argued that nephew is not entitled under the law to receive the amount of gratuity of the retired employee as well as amount of commutation of pension (after his death), therefore, department has rightly refused to release the amount in favour of the petitioner. 3. Undisputedly, Additional Civil Judge, Nainital vide judgment dated 26.3.1996 was pleased to issue succession certificate in favour of the petitioner having accepted him as nephew of Shri Chander Singh. Succession certificate has not been revoked as yet and still holds good. 4. There is no denial to the fact, either by Mrs. Beena Pandey representing the State of Uttar Pradesh or by Mr. Subhash Upadhyay, learned Standing Counsel appearing for the State of Uttarakhand, that Shri Chander Singh was entitled for pensionary benefits during his life time. The only question remains to be decided by this Court is as to whether amount of gratuity and commutation of pension for the period Government Employee was alive can be claimed and can be paid to the legal heir of the deceased employee? 5. Section 4 of the Payment of Gratuity Act, 1972 reads as under : “4. The only question remains to be decided by this Court is as to whether amount of gratuity and commutation of pension for the period Government Employee was alive can be claimed and can be paid to the legal heir of the deceased employee? 5. Section 4 of the Payment of Gratuity Act, 1972 reads as under : “4. Payment of gratuity.- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,— (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: [Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation.— For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days’ wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece- rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of 1[ an employee who is employed in a seasonal establishment and who is not so employed throughout the year”], the employer shall pay the gratuity at the rate of seven days’ wages for each season. [Explanation.— In the case of a monthly rated employee, the fifteen days’ wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty- six and multiplying the quotient by fifteen.] (3) The amount of gratuity payable to an employee shall not exceed 4 [one lakh rupees]. (4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced. (5) Nothing in this section shall affect the right of an employee receive better terms of gratuity under any award or agreement or contract with the employer. (6) Notwithstanding anything contained in sub- section (1),— (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee 1[ may be wholly or partially forfeited]— (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.” 6. Having perused proviso to Section 4 of the Act, in the humble opinion of this Court, amount of gratuity on the death of the employee shall be payable either to his nominee or, in the absence of nominee, to the legal heirs of the deceased employee. 7. In view of the fact that succession certificate has already been issued in favour of the petitioner accepting him as real nephew (brother’s son) of deceased employee Shri Chander Singh, petitioner is legal heir of deceased Chander Singh. Moreover, as per Section 8 and Class I of the Schedule of the Hindu Succession Act, 1956, son of brother of deceased would be a legal heir in the absence of other preferential legal heirs of deceased Hindu. 8. Moreover, as per Section 8 and Class I of the Schedule of the Hindu Succession Act, 1956, son of brother of deceased would be a legal heir in the absence of other preferential legal heirs of deceased Hindu. 8. Undisputedly, late Shri Chander Singh did not nominate any person to withdraw his amount of gratuity, therefore, in view of proviso to Section 4 of the Payment of Gratuity Act, 1972 and in view of Section 8 of Hindu Succession Act, 1956, petitioner being legal heir of deceased Chander Singh is entitled for payment of gratuity amount and for commutation of pension for the period late Shri Chander Singh survived. 9. Since amount of gratuity and commutation of pension has not been paid to the petitioner without any sufficient reason, therefore, petitioner is entitled for interest thereon. 10. Consequently, writ petition is allowed. State of Uttar Pradesh is directed to release the amount of gratuity and commutation of pension in favour of the petitioner along with interest at the rate of 9 per cent per annum (prevailing interest rate being paid by the Nationalized Banks on FDR) from the date succession certificate was issued to the petitioner till final payment of amount of gratuity and commutation of pension is made to the petitioner. Let payment be made to the petitioner preferably within three months from today.