The Allahabad High Court has observed that the claim of gratuity sought by the petitioner shall not be rejected only on the ground that the “Option Form” has not been filled by the petitioner’s wife.
A Single Bench of Justice Rajiv Joshi passed this order, while hearing a petition filed by Vijay Kumar Srivastava.
The petitioner’s wife was an Assistant Teacher in a Primary Institution run by the Department of Basic Education and died on November 9, 2016 while in service. Other retiral benefits have been paid to the petitioner except the amount of Gratuity.
The Court observed that the amount of Gratuity has not been paid on the ground that the option to retire at the age of 60 years was not exercised by the deceased employee.
The Court relied upon the judgment of the Court in Writ Petition No 17399 of 2019 (Usha Rani vs. State of U.P and others), decided on November 7, 2019. Relevant portion of the aforesaid order is extracted hereinafter:-
“………… 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 the Lucknow Bench of this Court vide order dated 5.8.2019 passed in the matter of Smt. Mala Tripathi (Supra) in which the Court has taken a similar view and held that if the 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.
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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 outset 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.”
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Facts of the case and dispute involved in the 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 July 30, 2019 passed by respondent No 7- Block Education Officer Block Kadarchauk, District 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. …………”
It is contended by Counsel for the petitioner that the petitioner has represented the matter in this regard on September 07, 2021 before the respondent no 3, Basic Shiksha Adhikari, District Prayagraj which has not been decided till date.
Standing Counsel for the respondents on the other hand submitted that no useful purpose will be served in calling for the counter affidavit and keeping the writ petition pending and a suitable direction may be issued to the respondents to decide the claim of the petitioner in terms of the above judgement within stipulated period.
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“In view of the aforesaid, the writ petition stands disposed of with a direction upon the respondent no 3, Basic Shiksha Adhikari, District Prayagraj to decide the representation filed by the petitioner on September 07, 2021 in the light of law laid down in the case of Usha Rani (supra), within a period of three months from the date of presentation of copy of the order. All consequential action shall be taken without any further loss of time.
Petitioner’s claim for gratuity shall not be rejected only on the ground that “Option Form” has not been filled by the petitioner’s wife”, the Court ordered.