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2019 DIGILAW 337 (JHR)

Arun Kumar v. State of Jharkhand

2019-02-01

SHREE CHANDRASHEKHAR

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1. Inspite of cautions issued through the orders passed in the present proceeding which would unerringly disclose that the so-called stand taken by the State, least to say, is frivolous, an affidavit has been filed on behalf of Additional Chief Secretary-cum-Principal Secretary (O.P No.2)-contemnor reiterating a similar stand. 2. Order dated 20.12.2018 reads as under: “Mr. Vikash Kumar, the learned counsel for the petitioner submits that order dated 28.09.2018 passed in the present proceeding has not been complied by the contemnor-O.P. No.2, in as much as, gratuity payable to the petitioner which in terms of the Payment of Gratuity Act, 1972 cannot be withheld except in cases falling under sub-section 6 (b) to Section 4 has not been paid to the petitioner and in the garb of Resolution dated 23.07.2018, which is just an executive order, in teeth of the judgment of the Hon’ble Supreme Court in “State of Jharkhand and Others Vs. Jitendra Kumar Srivastava and Another” reported in (2013) 12 SCC 210 , gratuity payable to the petitioner has been withheld. It is submitted that the Letters Patent Appeal No.583 of 2018 filed by the State of Jharkhand is still lying in defects and the only issue which can be adjudicated in the Letters Patent Appeal is whether the petitioner is entitled for regularization of his service for the period between 26.08.2016 to 29.12.2016 or not and while so, all post-retiral benefits must be paid to the petitioner, may be provisionally. For filing a supplementary show-cause by O.P. No.2, the learned State counsel seeks adjournment. Post the matter on 18.01.2019. 3. By order dated 18.01.2019, the contemnor-O.P No. 2 was directed to file an affidavit on payment of gratuity to the petitioner. It reads as under : “Inspite of opportunity granted on 20.12.2018, no affidavit has been filed on behalf of the contemnor-O.P. No. 2. Order dated 20.12.2018 reflects the position in law in so far as payment of gratuity to an employee is concerned. The learned counsel for the petitioner submits that pending disposal of the Letters Patent Appeal No. 583 of 2018, even keeping the writ Court’s order aside whole of the amount of gratuity cannot be withheld and the petitioner is entitled for payment of gratuity for his entire service period excluding the period between 03.03.2005 to 15.08.2011, at this stage. The learned counsel for the petitioner submits that pending disposal of the Letters Patent Appeal No. 583 of 2018, even keeping the writ Court’s order aside whole of the amount of gratuity cannot be withheld and the petitioner is entitled for payment of gratuity for his entire service period excluding the period between 03.03.2005 to 15.08.2011, at this stage. On the request of the learned counsel for the contemnor-O.P. No. 2, adjourn the matter for filing an affidavit by O.P. No. 2. Post the matter on 01.02.2019. If an affidavit as directed is not filed “within time”, the contemnor-O.P. No. 2 shall remain physically present in the Court. Let a copy of the order be given to the learned counsel for the opposite parties.” 4. In the supplementary show cause reply, O.P No. 2 has again reiterated a similar stand. In the garb of an invalid rule, the petitioner cannot be denied gratuity which became due and payable on his superannuation from service. While exercising powers under the Contempt of Courts Act, 1971 and Article 215 of the Constitution of India, the writ Court-it prescribes its procedure in exercise of powers under Article 226-can take cognizance of such matters. 5. Post the matter on 15.02.2019, when the contemnor-O.P No. 2 shall remain physically present in the Court. 6. Let a copy of the order be given to opposite party-State.