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Allahabad High Court · body

2019 DIGILAW 2221 (ALL)

Dulari Devi v. State of U. P.

2019-09-20

VIVEK KUMAR BIRLA

body2019
JUDGMENT : Re: Civil Misc Modification Application No. 10 of 2019 1. Heard Sri Siddharth Khare, learned counsel appearing for the petitioner-applicant. 2. The petition, wherein this application has been filed, was filed seeking quashing of the impugned order dated 8.11.2011 passed by the respondent no. 2 filed as Annexure-1 to the writ petition. A further prayer was made in the nature of mandamus commanding the respondents to forthwith pay amount of gratuity along with interest to the petitioner for which she is legally entitled as her husband was an Assistant Teacher in substantive capacity in the institution namely Sarva Hitaishi Inter College, Masida, district Jaunpur. 3. Placing reliance on the judgment of Hon'ble Division Bench in the case of Angoori Devi Vs. Regional Joint Director of Education, Agra Region and others 2012 (1) ADJ 720 (paragraph 15 and 16), the petition was allowed. 4. The impugned order for rejecting the claim of the petitioner for grant of gratuity was quashed and petition was allowed in terms of paragraph 16 of the judgment in Angoori Devi (supra). The respondents were directed to pay the gratuity amount to the applicant/petitioner preferably, within a period of three months from the date of production of a certified copy of the order. Admittedly, the interest was not granted in favour of the petitioner. 5. The petitioner filed Special Appeal Defective No. 299 of 2018 which was dismissed vide judgment dated 8.11.2019 with liberty to appellant to take recourse to any other legal remedy that may be open to her in law. Taking cue from the aforesaid observation made in the Special Appellate Court judgment, the present modification application claiming interest on delay payment of gratuity has been filed. The modification application itself was filed with some delay in April, 2019. 6. Submission of learned counsel for the petitioner is that the Special Appeal was dismissed with liberty to appellant to take recourse to any other legal remedy that may be open to her in law and, therefore, the present modification application is maintainable. He further submits that since the claim of the petitioner for grant of gratuity has been allowed and there was a delay on the part of the employer and not on the part of the petitioner/claimant (widow of the deceased employee), therefore, the petitioner is entitled for interest on late disbursal of gratuity. 7. He further submits that since the claim of the petitioner for grant of gratuity has been allowed and there was a delay on the part of the employer and not on the part of the petitioner/claimant (widow of the deceased employee), therefore, the petitioner is entitled for interest on late disbursal of gratuity. 7. The petitioner made a representation for grant of interest before the authority concerned, however, her claim was rejected by an order dated 8.5.2018 on the ground that there is no direction by this Court for grant of interest. A copy of the order dated 8.5.2018 is annexed with the modification application. 8. Learned counsel further submits that in view of the government order dated 15.7.1997, the petitioner is entitled for interest at the rate of Rs. 12% per annum on late disbursal of gratuity. He has drawn attention to the provisions of Section 7 (3-A) of the Payment of Gratuity Act, 1972 in support of his submission that the employee (the widow claimant herein) is entitled for interest. In support of his argument learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Apex Court in case of Y.K. Singla Vs. Pujab National Bank and others (2013) 3 SCC; whereof paragraph 17 of the said judgment is quoted as under:- "For the determination of the present controversy, it is also relevant to take into consideration section 7 of the Gratuity Act, which is being extracted hereunder:- "7. Determination of the amount of gratuity.- 1. A person who is eligible for payment of gratuity under this Act or any person authorized, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined. (3) The employee shall arrange to pay the amount of gratuity, within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3) The employee shall arrange to pay the amount of gratuity, within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3A) If the amount of gratuity payable under sub-Section (3) is not paid by the employer within the period specified in sub-Section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground. (4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. (b) Where there is a dispute with regard to any matter specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute. (c) The controlling authority shall, after due inquiry and after giving the parties to the dispute a reasonable opportunity of being heard, determine the matter or matters in dispute and if, as a result of such inquiry any amount is found to be payable to the employee, the controlling authority shall direct the employer to pay such amount or, as the case may be, such amount as reduced by the amount already deposited by the employer. (d) The controlling authority shall pay the amount deposited including the excess amount, if any, deposited by the employer, to the person entitled thereto. (d) The controlling authority shall pay the amount deposited including the excess amount, if any, deposited by the employer, to the person entitled thereto. (e) as soon as may be after a deposit is made under clause (a), the controlling authority shall pay the amount of the deposit- (i) to the applicant where he is the employee; or (ii) where the applicant is not the employee, to the nominee or, as the case may be, the guardian of such nominee or heir of the employee if the controlling authority is satisfied that there is no dispute as to the right of the applicant to receive the amount of gratuity (5) For the purpose of conducting an inquiry under sub-section (4), the controlling authority shall have the same powers as are vested in a court, while trying a suit, under the code of Civil Procedure, 1908, (5 of 1908) in respect of the following matters, namely :- (a) enforcing the attendance of any person or examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commission for the examination of witnesses. (6) Any inquiry under this section shall be a judicial proceeding within the meaning of section 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860). (7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf: Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days : Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-Section (4), or deposits with the appellate authority such amount. (8) The appropriate Government or the appellate authority, as the case may be, may, after giving the parties to the appeal a reasonable opportunity of being heard, confirm, modify or reverse the decision of the controlling authority." (emphasis supplied) A perusal of sub-Section (2) of Section 7 reveals, that it is the onerous responsibility of the employer, to determine the amount of gratuity payable to a retiring employee. Sub-Section (3) of Section 7 enjoins a further responsibility on the employer, to disburse the amount of gratuity payable to an employee, within 30 days from the date it becomes payable. Since the appellant had attained the age of superannuation on 31.10.1996, it is apparent, that gratuity had become payable to him on 31.10.1996. Accordingly, the same ought to have been calculated in terms of sub-Section (2) of Section 7 of the Gratuity Act, and should have been dispersed to the appellant by 30.11.1996 in terms of sub-Section (3) of Section 7 of the Gratuity Act." (Emphasis supplied) 9. Per contra, learned Standing Counsel has opposed the modification application. 10. I have considered the rival submissions and perused the record. 11. Before proceeding further, it would be relevant to take note of the judgment dated 12.2.2018 passed by me which is quoted as under:- "Heard Sri Siddharth Khare, learned counsel appearing for the petitioner and Sri Rakesh Kumar Mishra, learned Standing Counsel appearing for the respondents. Counter and rejoinder affidavits have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at the admission stage itself. Present writ petition has been filed seeking quashing of the impugned order dated 8.11.2011 passed by the respondent no. 2 filed as Annexure-1 to the writ petition. A further prayer in the nature of mandamus commanding the respondents to forthwith pay amount of gratuity alongwith interest to the petitioner for which she is legally entitled as her husband was an Assistant Teacher in substantive capacity in the institution namely Sarva Hitaishi Inter College, Masida, district Jaunpur. Stamp reporter reported laches of 1 year 318 days in filing the present writ petition. The petitioner herein is a widow of the deceased employee who was working as Assistant Teacher and it has been categorically stated that she was not aware of the impugned order and therefore, the delay in filing the present writ petition has occurred. Stamp reporter reported laches of 1 year 318 days in filing the present writ petition. The petitioner herein is a widow of the deceased employee who was working as Assistant Teacher and it has been categorically stated that she was not aware of the impugned order and therefore, the delay in filing the present writ petition has occurred. The explanation submitted for laches is sufficient. Even otherwise, the matter relates to gratuity and as such, I am inclined to entertain the present writ petition. By the impugned order the representation of the petitioner claiming gratuity was rejected on the ground that her husband had not exercised his option of retiring at the age of 58 years and therefore, the gratuity is not payable in the present case hence the claim was rejected. Submission of learned counsel for the petitioner is that the petitioner's husband namely Raj Bahadur Yadav who was working as an Assistant Teacher in LT Grade in Sarva Hitaishi Inter College, Masida, district Jaunpur after being appointed on the post on 7.7.1983 and died in harness on 2.12.2004 whereas his date of retirement was in the year 2018. Submission is that since he died before he could have exercised his option to retire at the age of 58 years and the death cannot be foreseen therefore, the petitioner is entitled for payment of gratuity. Learned counsel for the petitioner has placed reliance on a judgment of the Hon'ble Division Bench of this Court in the case of Angoori Devi Vs. Regional Joint Director of Education, Agra Region and others 2012 (1) ADJ 720 in support of his argument. Per-contra, learned Standing Counsel has reiterated the reasons given in the impugned order that the husband of the petitioner had not given his choice of retiring at the age of 58 years therefore, he is not entitled for the relief as prayed for in the present writ petition. The controversy involved in the present case is covered by the judgment rendered by the Hon'ble Division Bench in the case of Angoori Devi (Supra), paragraphs 15 and 16 whereof are quoted as under: "15. In the present appeal, the appellant case stands on a better footing. Firstly, the husband of the petitioner withdrew his option given earlier and submitted another option form just after three days and opted fifty eight years as retirement age. In the present appeal, the appellant case stands on a better footing. Firstly, the husband of the petitioner withdrew his option given earlier and submitted another option form just after three days and opted fifty eight years as retirement age. Secondly, his option form was not approved and no communication was received by appellant's husband in this regard. In the case of Smt. Ranjana Kakkar wife of late Sri Amar Nath Kakkar, the Court observed that : '10. The scheme of the Government Orders dated 24.12.1983 and 21.8.1990 was to give the benefit of the extended age of retirement from 58 years to 60 years subject to the conditions that those teachers, who will retire at age of 58 years, will not be given benefit of D.C.R.G. and those, who want to take benefit of two years additional service, will get the calculation of pension only upto age of 58 years. These benefits, as it is stated in the opening paragraph of the Government Order dated 24.12.1983, were given for the purposes of providing social security to the teachers. These benefits were available to only those who could live up to the date of their superannuation to avail these benefits. For those, who unfortunately could not reach the age of 58 years, could not be taken to be covered by the scheme. 11. The providence to survive upto the age of 58 years could not be known to the teachers exercising options. The God has not yet bestowed the man with the powered to foresee of to predict death. The man arranges his affairs in accordance with the wisdom given to him by God. The Almighty has reserved the powers of sustaining and guiding human destiny. No one, who was required to give an option under the scheme, could have predicted whether he would survive to claim the benefits. Where an event cannot be foreseen and a person is invited to give options with the understanding to arrange his affairs according to his own wisdom, his choice should not be allowed to work to his disadvantage after his death. He should be provided with the maximum of the benefits and social security after his death. Late Prof. Amarnath Kakkar did not live beyond the age of 45 years. He may have planned for his fairs upto the age of 60 years, both for himself and his family. He should be provided with the maximum of the benefits and social security after his death. Late Prof. Amarnath Kakkar did not live beyond the age of 45 years. He may have planned for his fairs upto the age of 60 years, both for himself and his family. The God however willed otherwise. His untimely death made his option unworkable. In order to give him maximum benefits of the social security, which was the intention of the Government Order dated 24.12.1983, he could not be denied the D.C.R.G. payable to him and calculated up to his death for the completed years of service rendered by him to the University. His life was cut short and thus his option became unworkable and futile, on his death at the age of 45 years. He could not be pinned down to his option by the University, to deprive his family of the gratuity earned by him and payable to his family.' 16. In view of the above and as the case of the appellant is squarely covered by the judgment rendered by the Division Bench of this Court and appellant has specifically deposed that she has not received any extra benefit, the Special Appeal as well as the writ petition is allowed and the respondents are directed to calculate and pay the death cum retirement gratuity amount to the appellant/petitioner." On the reasonings given by the Hon'ble Division in the case of Angoori Devi (Supra) as noted above I find that in the present case also the petitioner is entitled for payment of gratuity as her husband died in harness 14 years prior to the date of retirement without attaining the age of retirement. From the facts it appears that the present case is even on the better footing than the case of Angoori Devi (Supra). Accordingly, the impugned order is not sustainable in the eye of law and is hereby set aside. Present writ petition stands allowed in terms of paragraph 16 of the aforesaid judgment and respondents are directed to calculate and pay the death cum retirement gratuity amount to the appellant/petitioner, preferably within a period of three months from the date of production of a certified copy of this order." No costs." 12. A perusal of the aforesaid judgment would clearly indicate that the writ petition was filed with laches of 1 year and 318 days. A perusal of the aforesaid judgment would clearly indicate that the writ petition was filed with laches of 1 year and 318 days. From perusal of the writ court's record of the representation and the order impugned dated 8.11.2011, it appears that the petitioner for the first time approach this Court in the year 2011 claiming payment of gratuity filing Writ-A No. 71478 of 2013 (Smt. Dulari Devi vs. State of U.P. and others) whereby, the authority concerned was directed to decide the representation of the petitioner dated 20.3.2011. A perusal of the impugned order further indicates that the family pension claimed by the petitioner was granted on 10.3.2006. Husband of the petitioner died on 2.12.2004. Therefore, it appears that it is for the first time the claim of gratuity was made by the petitioner in the year 2011. From perusal of my judgment in writ petition it is quite evident that no argument regarding claim of interest was raised before me during the course of arguments. This fact has also been noticed in judgment of Special Appellate Court passed in Special Appeal Defective No. 299 of 2018 (Dulari Devi vs. State of U.P. and Others) dated 8.1.2019, which is quoted as under:- "Heard Sri Siddharth Khare, learned counsel for the appellant and Sri Pankaj Rai, learned Standing Counsel for the respondents. The husband of the appellant was an Assistant Teacher in an Inter College. On his death, his wife was not paid the gratuity. Therefore, she preferred a writ petition before this court and the same was allowed by the impugned judgment and order dated 12.02.2018 and the respondents were directed to calculate and pay the death-cum-retirement gratuity to the appellant within a period of three months. In pursuance to the above, the appellant has been paid the gratuity. The appellant is not satisfied with the payment of the gratuity alone and by means of this special appeal submits that she is entitle to interest on the delayed payment of the gratuity. The learned Single Judge has erred in not allowing interest on gratuity. We have perused the impugned judgment and order and find that the deceased in accordance with the scheme had not opted for the payment of gratuity and his representation in that regard was rejected. The learned Single Judge has erred in not allowing interest on gratuity. We have perused the impugned judgment and order and find that the deceased in accordance with the scheme had not opted for the payment of gratuity and his representation in that regard was rejected. Despite the above, as the court was of the opinion that the gratuity is not a bounty and is admissible, directed for the payment of gratuity. The writ petition was filed after about two years of the impugned order. Thus, it appears that under the facts and circumstances of the case the court consciously declined to award interest on gratuity. A perusal of the impugned order and judgment further reveals that no argument was advanced on behalf of the appellant for the payment of interest on gratuity though a ground in this regard or a prayer made in the writ petition. A point which has been referred to in the pleadings but not raised is always deemed to have been given up by the party concerned and as such also we do not feel inclined to award any interest on gratuity at this stage in appeal. Additionally, the appellant raised demand or interest on account of delayed payment of gratuity and the same has been turned down by the Deputy Director of Education (Secondary) Vth Region, Varanasi vide order dated 08.05.2018. This order is final and conclusive and has not been assailed by the appellant. Therefore, also so long as the said order stands justified to grant interest on gratuity as demanded by the appellant. In view of the aforesaid facts and circumstances, we do not find any force in the appeal and the same is dismissed with liberty to the appellant to take recourse to any other legal remedy that may be open to her in law." (Emphasis supplied) 13. A perusal of the Special Appellate Court order would further indicate that the Court observed that the deceased in accordance with the scheme had not opted for the payment of gratuity and his representation in that regard was rejected. The Hon'ble Division Bench also observed that despite the above, as the Court was of the opinion that the gratuity is not a bounty and is admissible, directed for the payment of gratuity. It was further noticed that petition was filed after two years of the impugned order. The Hon'ble Division Bench also observed that despite the above, as the Court was of the opinion that the gratuity is not a bounty and is admissible, directed for the payment of gratuity. It was further noticed that petition was filed after two years of the impugned order. Thus, it appears that under the facts and circumstances of the case the Court consciously declined to award interest on gratuity. It was also noticed that the judgment passed by me in the writ petition further reveals that no argument was advanced on behalf of the appellant for payment of interest on gratuity though a ground in this regard and a prayer was made in the petition. Hon'ble Division Bench held that a point which has been referred to in the pleadings but not raised deemed to have been given up by the party concerned and as such also we do not feel inclined to award any interest on gratuity at this stage in appeal. It was also noted that the rejection of interest by the authority concerned vide order dated 8.5.2018 is final and conclusive and has not been assailed by the appellant. 14. In such view of the matter, I am of the opinion that the claim of the petitioner regarding award of interest on gratuity stands rejected by Hon'ble Division Bench by the aforesaid judgment dated 8.1.2019 and even the claim of interest was rejected by the concerned authority on 8 May, 2018 whereas it appears that Special Appeal was filed after delay in January 2019. The entire scenario reflects that the delay in pursuing the claim was entirely on the part of the claimant herein. 15. It may also be relevant to note that even in Angoori Devi (Supra) payment of interest on gratuity, though, was prayed for, but was not pressed or granted. 16. Now coming to the judgment of Y.K. Singla (supra) relied upon by learned counsel for the petitioner, there is no dispute about the existence of a provision in favour of an employee that in case the delay is on the part of the employer in making payment of the gratuity he shall be entitled for interest. 16. Now coming to the judgment of Y.K. Singla (supra) relied upon by learned counsel for the petitioner, there is no dispute about the existence of a provision in favour of an employee that in case the delay is on the part of the employer in making payment of the gratuity he shall be entitled for interest. However, proviso added to sub-section 3 of Section 7 (3-A) of the Act, clearly provides in categorical terms that no such interest shall be payable if the delay in the payment is due to the fault of the employee. In this regard, it would also be appropriate to note the contents of the paragraph 18 of the judgment, which is quoted as under :- "Sub-section (3-A) of Section 7 of the Gratuity Act is the most relevant provision for the determination of the present controversy. A perusal of sub-section (3-A) leaves no room for any doubt that in case gratuity is not released to an employee within 30 days from the date the same becomes payable under sub-section (3) of Section 7, the employee in question would be entitled to ".... simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term loans, as the Government may, by notification specify". There is, however, one exception to the payment of interest envisaged under sub-section (3) of Section 7 of the Gratuity Act. The aforesaid exception is provided for in the proviso under sub-section (3-A) of Section 7. A perusal of the said proviso reveals, that no interest would be payable "....if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground." The exception contemplated in the proviso under sub-section (3-A) and fulfilled, the employee concerned can be denied interest despite delayed payment of gratuity. Having carefully examined the proviso under sub-section (3A) of Section 7 of the Gratuity Act, we are of the view that: (i) The first ingredient is that payment of gratuity to the employee was delayed because of some fault of the employee himself. (ii) The second ingredient is that the controlling authority should have approached such withholding of gratuity (of the employee concerned) on the basis of the alleged fault of the employee himself. (ii) The second ingredient is that the controlling authority should have approached such withholding of gratuity (of the employee concerned) on the basis of the alleged fault of the employee himself. None of the other sub-sections of Section 7 of the Gratuity Act would have the effect of negating the conclusion drawn hereinabove." (emphasis supplied) 17. The Hon'ble Apex Court has clearly taken note of exception created by the proviso under sub-section (3-A) of Section 7 of the Gratuity Act and two ingredients were specifically noted and it has been clearly observed that the interest is payable only if there is delay on the part of the employer and if the delay is on the part of the employee himself no such interest shall be payable. 18. In the present case, she put forth her claim of family pension which was granted to her in the year 2006. It appears from the record that for the first time petitioner came forward for the claim of gratuity in the year 2011. Therefore, it is clear that she was conscious of the fact regarding making claim for any retiral dues. More over, there is no dispute about the fact that during his life time the employee has not exercised his option and gratuity to the claimant widow was granted because of the judgment of this Court raising a presumption that employee could have exercised his option before his retirement had he been alive. 19. The impugned order in the writ petition is dated 8.11.2011. The writ petition was filed almost after two years and my judgment clearly reflects that the grant for payment of interest on gratuity amount was not specifically raised before this Court. Even otherwise clear observations were made by the Hon'ble Division Bench in this regard and in fact the claim of interest was rejected by the Special Appellate Court. Therefore, in my view that the case of the petitioner is covered by proviso 2, sub-section 3 (3-A) of Section 7 of the Gratuity Act as interpreted by Hon'ble Apex Court in paragraph 18 of the aforesaid judgment and the petitioner is not entitled for interest on delayed payment of gratuity. 20. Further, in case this modification application is allowed it would also run counter to the observation already made by Hon'ble Division Bench while passing the judgment dated 8.1.2019 in Special Appeal Defective No. 299 of 2008. 21. 20. Further, in case this modification application is allowed it would also run counter to the observation already made by Hon'ble Division Bench while passing the judgment dated 8.1.2019 in Special Appeal Defective No. 299 of 2008. 21. The modification application lacks merits and is accordingly rejected. Re: Civil Misc Delay Condonation Application 9 of 2019 1. Heard Sri Siddharth Khare, learned Counsel appearing for the petitioner-applicant. 2. The major part of delay in filing the present modification application according to learned counsel for the applicant is due to pendency of the Special Appeal which came to be dismissed on 8.1.2019. Although, even there is some delay in filing the application however, taking a lenient view of the matter, the delay in filing the modification application is condoned.