State of U.P. & Ors. v. Smt. Priyanka

STATE OF U.P. & ORS. V. SMT. PRIYANKA (Civil Appeal No. 3639 of 2022) FEBRUARY 09, 2023 [M. R. SHAH AND B. V . NAGARATHNA, JJ.] Service Law: Death-cum-Retirement gratuity – Payment of – To heirs/dependent of deceased employee, when emplo yee died before he could exercise the option of retirement – Respondent-wife of deceased employee applied for payment of grat uity due to her husband, but the same was rejected on ground that he had not opted for retirement at the age of 60 years – Writ proceedings – High Court held that respondent would be entitled to the benefit of Government Order dated 16.9.2009 and to the benefit of death-cum-retirement gratuity being heir of the deceased employee – Justification of – Held: Justified – Respondent’s h usband would have completed 60 years of his age on 30.06.2011 – As per Government Order dated 16.09.2009, he would have exercis ed his option to retire at the age of 60 years on or befor e 1.7.2010 – However, before he could exercise the option, he died – I n fact, he had died even prior to the Government order – He ha d died on

11.08.2009 whereas the Government order is dated 16 .9.2009 – Therefore, there was no chance for him to exercise any option at all – Death-cum-retirement gratuity is a benevolent sch eme and the same was extended by the High Court to the respondent she being heir/ dependent of the deceased employee – No interfere nce called for. CIVIL APPELLATE JURISDICTION : Civil Appeal No.3639 Of 2022. From the Judgment and Order dated 30.11.2021 of the High Court of Judicature at Allahabad in SPLA No.343 of 2021. Sanjay Kumar Tyagi, Gaurav Dhama, Prabhat Kumar Rai, Ajay Kumar Pandey, Advs. for the Appellants. Dr. Ritu Bhardwaj, Sachin Mittal, Advs. for the Respondent. The Judgment of the Court was delivered by

M. R. SHAH, J.

¶1Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Allahabad in Special Appeal No. 343 of 2021 by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge directing the appellants – State of U.P. and Ors. to pay the gratuity to the original writ petit ioner on the death of the deceased employee (her husband), the State of U.P . and Ors. have preferred the present appeal.

¶2The facts leading to the present appeal in nutshell are as under:-

2.1 That the deceased employee Dr. Vinod Kumar, husband of the original writ petitioner, was working as Lecturer. He joined service on 02.07.2001 and died on 11.08.2009 while in service. The original writ petitioner - wife of the deceased employee applied for p ayment of gratuity due to her husband, but the same was rejected on t he ground that the husband of the petitioner, while in service, had not opted for retirement at the age of 60 years. The original writ petitioner therefore filed the writ appeal before the High Court being Writ Appeal No. 2211 of 2021.

2.2 Relying upon and following the earlier decisions of the High Court and by observing that if the deceased employee would have been alive, he would have retired in 2026, if he had opted for retirement at the age of 60 years and before he could opt for retirement at the age of 60 years, he died, therefore, the learned Single Judge allowed the writ petition and directed the appellants to compute the amount payable to her husband towards gratuity quantified in accordance with the relevant Government orders with the interest @ 8% p.a. from the date of filing of the application for gratuity till the amount is actually disbursed, ignoring the fact that the husband of the original writ petitioner had not opted for retirement at the age of 60 years.

2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the appellants preferr ed the writ appeal before the Division Bench of the High Court. By the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal, hence the present appeal.

¶3Shri Sanjay Kumar Tyagi, learned counsel appearing on behalf of the appellants has vehemently submitted that in t he facts and circumstances of the case, the High Court has materially erred in directing the appellants to pay gratuity to the original writ petitioner on the death of the deceased employee.

3.1 It is submitted that the High Court has not properly appreciated the fact that the deceased employee failed to exercise the option and therefore the benefit of death-cum-retirement gratu ity cannot be sanctioned to the respondent being heirs of the deceased employee.

3.2 It is further submitted that as per the prevailing gove rnment orders, the exercise of option to retire at the age of 58 y ears (now 60 years) for availing the benefit of death-cum-retirement gratui ty was a mandatory exercise. It is submitted that therefore in the absence of any option exercised by the deceased employee, the High Court has materially erred in directing the appellants to grant the benefi t of death-cum-retirement gratuity to the respondent on the death of th e deceased employee.

¶4While opposing the present appeal, learned counsel appearing on behalf of the respondent – heirs of the deceased e mployee has vehemently submitted that in the facts and circumstances of t he case, no error has been committed by the High Court in granting the benefit of death-cum-retirement gratuity to the respondent on the dea th of the deceased employee.

4.1 It is submitted that the deceased was appointed as a Lecturer on 2.7.2001 and died while in service on 11.8.2009. It is submitted that before the deceased could exercise the option, unfortunately he died. It is submitted that as per the Government Order dated 16.09.2009, the deceased was entitled to exercise the option to retire at the age of 60 years which was available up to 01.07.2010, however, before he could exercise the option, unfortunately he died. It is submitted that therefore in the peculiar facts and circumstances of the case and ta king note of the aforesaid facts, no error has been committed by the Hi gh Court in directing the appellants to grant the benefit of death-cum-ret irement gratuity to the heirs of the deceased – respondent herein. It is submitted that in the peculiar facts and circumstances of the case, the grant of benevolent scheme of gratuity by the learned Single Judge of the High Court, confirmed by the Division Bench, may not be interfered with. STATE OF U.P. AND ORS. v. SMT. PRIYANKA

¶5We have heard learned counsel for the respective partie s at length. At the outset, it is required to be noted that the date of birth of the deceased was 1.7.1951. He was appointed as a Lecturer on 2.7.2001. He would have completed 60 years of his age on 30.06.2011. As per Government Order dated 16.09.2009, he would have exercised his option to retire at the age of 60 years on or before 1.7.2010, However, before he could exercise the option, unfortunately he died. In fact, he had died even prior to the Government order. He had died on 11.08.2009 whereas the Government order is dated 16.9.2009. Therefore, there was no chance for him to exercise any option at all. There is hence no me rit in this appeal. The High Court has rightly observed that the respondent would be entitled to the benefit of the Government Order dated 16.9.2009 and would be entitled to the benefit of death-cum-retirement gratuity being the heirs of the deceased employee. At this stage, it is required to be noted that it is not t he case on behalf of the appellants that if the deceased employe e would have exercised the option, even then he would not have been entitled to the benefit of death-cum-retirement gratuity under the scheme. The death-cum-retirement gratuity is the benevolent scheme and t he same is extended to the respondent being heirs/dependent of t he deceased employee by the learned Single Judge, confirmed by the Division Bench. In the facts and circumstances of the case, no interference of this Court is called for.

¶6In view of the above and for the reasons stated above, the present appeal fails and deserves to be dismissed and is accordingly dismissed. We deprecate the practice of a State filing such cases before the Apex Court. Hence the appeal is dismissed with cost of Rs. 50,000/ - payable by the appellant to the respondent within a period of four weeks from today. Bibhuti Bhushan Bose Appeals dismissed. (Assisted by : Abhishek Partap Singh, LCRA)