Allahabad High Court
Ramraj vs State Of U.P. And Anr. on 22 October, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 9229 of 2015 Petitioner :- Ramraj Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Anil Kumar Srivastava Counsel for Respondent :- C.S.C.,P.D. Tripathi Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner, Sri Bhanu Pratap Singh and Sri Harsh Vardhan Gupta learned Advocates appearing for the respondent no. 2-the District Basic Education Officer, Kaushambi.
The petitioner herein seeks for release of terminal benefits of his father namely Sri Shiv Bhavan such as leave encashment, gratuity, insurance and other retiral benefits admissible to him alongwith interest w.e.f. the date of his death i.e. 12.9.2005 till the date of actual payment. As per the writ averments, the father of the petitioner was engaged as a class IV employee on the post of Peon at Purva Madhyamik Vidyalaya, Mahewa Ghat, District Kaushambi in the year 1970 and had expired on 12.9.2005 while being in service. After death of the employee, provident fund amounting to Rs. 68,180/- had been released in favour of the petitioner, whereas other benefits such as leave encashment, insurance and gratuity etc. remained unpaid. A representation dated 23.2.2006 was filed by the petitioner and reminders were sent on 18.4.2008 and 14.7.2010. A report dated 11.3.2011 was given by the Basic Education Officer, Vikas Khand Sarsawan, District Kaushambi to the effect that the deceased employee was initially appointed in the Zila Parishad, Allahabad vide office order dated 24.10.1970. He had joined the class IV post on 2.11.1970, the joining report was on record of the institution. The attendance register also recorded the presence of the employee on 2.11.1970.
Despite repeated representations given by the petitioner, the terminal dues of his father had not been released and hence he was constrained to approach this Court.
In the counter affidavit, the aforesaid report of the District Basic Education Officer is admitted being matter of record. It is, however, sought to be submitted that the father of the petitioner was appointed on fixed pay and his services had never been regularized. He did not complete qualifying regular service of ten years so as to make him entitled for pension or family pension. As far as other terminal benefits are concerned, a letter dated 13.4.2015 of the District Basic Education Officer, Kaushambi addressed to the Finance and Accounts Officer, Basic Education, Kaushambi had been filed alongwith the counter affidavit to state that necessary action for payment of retiral dues had to be taken at the ends of the Finance and Accounts Officer, Basic Education.
In rejoinder, the petitioner has taken a categorical stand that he is not claiming family pension as his mother is no more. The amount of Rs. 68,180/- towards provident fund had been released in favour of the petitioner. There is a categorical denial to the stand of the respondents that engagement of father of the petitioner was on fixed salary. Rather it is submitted that he was getting salary on the basic scale fixed by the State Government which was enhanced from time to time. Further the engagement of petitioner's father was continuous and he died during the service tenure. All other retiral dues such as insurance, leave encashment and gratuity etc. are, thus, to be paid to him.
Three supplementary counter affidavits have been filed by the District Basic Education Officer under the directions issued by this Court.
In the compliance affidavit filed on 17.9.2019, it is sought to be submitted that engagement of the petitioner's father was on purely temporary basis on fixed payment but the order of appointment or extract of service book has not been brought on record to substantiate the said fact. It is then submitted that the State Government had issued a Government Order dated 8.8.1994 to provide that class IV employees engaged in the schools run by Basic Education Board would not be entitled to provident fund, group insurance, pension and family pension etc. It is further contended that since there was a deduction of G.P.F. from the petitioner's father and hence payment towards the provident fund was made in favour of the petitioner on 27.12.2011. A letter of the Finance and Accounts Officer, Basic Education, Kaushambi dated 11.9.2019 has been filed in this regard. As far as Group insurance is concerned, a cheque of an amount of Rs. 56,188/- dated 16.9.2019 issued in favour of the Finance and Accounts Officer, Basic Education, Kaushambi has been filed as Annexure-'4' to the said affidavit to state therein that the same would be released in favour of the petitioner as early as possible.
With regard to gratuity, it is contended that an option was required to be exercised by the petitioner's father in the light of the Government Order dated 23.11.1994 to retire at the age of 58 years and since he did not exercise that option within time, the petitioner is not entitled to seek release of gratuity. It is then submitted that whatever was entitlement of the petitioner's father, the same has been paid through the cheque dated 16.9.2019.
No explanation, however, has been offered for withholding of the released money towards Group insurance for a period of 14 years.
In the supplementary counter affidavit of compliance dated 25.9.2019 filed by the District Basic Education Officer, Kaushambi, it is submitted that the dispute regarding entitlement for retiral benefits of the non-teaching employees of the schools maintained by the Basic Education Board had been placed before the State Government being a financial matter. A clarification had been sought with regard to the Government Order dated 13th June, 2007. The deponent i.e. the District Basic Education Officer himself met the authorities of the Basic Education Board for reconsidering the matter. It was, however, communicated that in view of the decision of the State Government notified by Government Order dated 13th June, 2007, it is not possible for the Board to take a different view. The employees working on fixed payment are not entitled to pensionary benefits in the light of the Government Order dated 13th June, 2007 as per the clarification given by the Finance Controller, Basic Education Board to the District Basic Education Officer vide communication dated 19th September, 2019.
In another supplementary counter affidavit dated 21.10.2019, it is sought to be submitted that the question of entitlement of leave encashment to the employees of Basic Education Board was duly considered by the State Government and was disallowed vide letters dated 1.5.1992 and 2.12.1994. It is then contended that the State Government is competent to frame rules under Section 19(1) of the U.P. Basic Education Act, 1972 (In short as "the Act, 1972"). In the financial matter of teaching and non-teaching employees of the Board, the decision taken by the State Government is binding on the Board as per Section 13(2) of the Act, 1972.
It is then submitted that the erstwhile employees of the educational Institutions being run, managed and controlled by the respective Local Bodies are under the control of the Board after enactment of the U.P. Basic Education Act, 1972 and the services of teaching and non-teaching staff of the erstwhile Basic Institutions (maintained by the Local Bodies) are now governed by the rules framed by the State Government under Section 19 of the Act, 1972. As services of such employees stood transferred to the Board under Section 9 of the Act, 1972, they shall be treated as employees of the Board since promulgation of the Act, 1972. Reference has again been made to the Government Order dated 13.6.2007 and 8.8.1994 to assert that class IV employees of the Basic Education Board are not entitled for leave encashment and pension etc. It is then submitted that the judgment passed by this Court in Special Appeal (Defective) No. 497 of 2016 for payment of post retiral benefits of the Group-D employees engaged on fixed payment, has been stayed by the Apex Court vide order dated 16.12.2016. In view of the aforesaid decision of the State Government, the petitioner is not survived with any claim.
Learned counsel for the parties have simply relied upon the submissions made in the writ petition and the counter affidavit to prove their rival claims in the matter of payment of gratuity and leave encashment etc. Having taken note of the averments of the contesting parties in the affidavits filed before this Court, it is more than evident that no dispute survives with regard to General provident fund, Group insurance and family pension. Only dispute remains is entitlement of leave encashment and gratuity.
It is also pertinent to note here that apart from bald statement made in the counter affidavit and three supplementary counter affidavits filed by the District Basic Education Officer, not a single document has been appended so as to substantiate their assertion that the initial engagement of petitioner's father was on fixed payment and it was not against the class IV post. It is also not disputed that the petitioner's father had worked continuously since the date of his engagement i.e. 24.10.1970 in the school of the Zila Parishad, Allahabad on a class IV post till the date of his death on 12.9.2005. The services of the petitioner's father stood transferred with the enactment of the Act, 1972 from the appointment date i.e. 1.8.1972 in accordance with Section 9 of the said Act which provided for the transfer of erstwhile employees of the Basic School run, managed and controlled by the Local Bodies.
Section 9 of the Act, 1972 provides as under:-
"9. Transfer of employees. - (1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are [altered by the rules made by the State Government in that behalf] :
Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board :
Provided further that the board may employ any such teacher, officer or other employee in the discharge of such functions under this Act as it may think proper and every such teacher, officer or other employee shall discharge those functions accordingly.
(2) Nothing in sub-section (1) shall apply to any teacher, officer or other employee, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice, his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body, which shall be as follows -
(a) in the case of a permanent employee, a sum equivalent to his salary (including all allowances) for a period of three months or for the remaining period of his service, whichever is less;
(b) in the case of a temporary employee, a sum equivalent to his salary (including all allowances) for one month or for the remaining period of his service, whichever is less.
(3) Notwithstanding anything in sub-section (1), any person referred to therein, who becomes an employee of the Board shall be liable to be transferred from the school or from the local area in which he was employed immediately before the appointed day to any other school or institution belonging to the Board or, as the case may be, to any other local area at the same remuneration and on the same other terms and conditions of service as governed him immediately before such transfer [until such tenure, remuneration and other terms and conditions are altered by the rules referred to in sub-section (1)]:
Provided that no teacher of a basic school [which before the appointed day belonged to a local body] shall be transferred to a basic school belonging to any other local body except with his consent.
(4) If any question arises whether the services of any person stand transferred to the Board under sub-section (1) or as to the remuneration and other terms and conditions of service of such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final.
(5) Any provident fund maintained by any local body for the employees referred to in sub-section (1) alongwith all contributions of such employees as well as of the local body which ought to have been but have not been deposited therein before the appointed day, shall be transferred by the local body to the Board, which shall hold it in trust for the employees concerned in accordance with the terms and conditions governing such fund.
(6) The transfer of services of any employee to the Board under sub-section (1) shall not entitle any such employee to any compensation and no such claim shall be entertained by any Court, Tribunal or Authority."
A careful reading of Section 9 of the Act, 1972 indicates that the services of teaching and non-teaching employees serving under a Local Body exclusively in connection with Basic School had been transferred on the same remuneration and upon the same terms and conditions of service as would have been if the Board had not been constituted. Such employees were held entitled to the same tenure, remuneration and other terms and conditions till they are altered by the State Government under the rules framed in that behalf.
The U.P. Basic Educational Staff Rules, 1973 (In short as "the Rules, 1973") has been framed by the State Government in exercise of powers conferred by Section 19 of the Act, 1972, which provides the details of the post and the appointing authority in the Schedule appended to said rule. The said rule primarily provides for procedure of disciplinary enquiry. The rule is silent about the creation of post of class IV employees of offices and institutions of the Board in the Urban Areas.
It appears that because of this fact, on transfer of the services of the petitioner's father from Zila Parishad to the school of the Basic Education Board, he was adjusted on some fixed payment. That fact, however, would not make any difference, inasmuch as, the Board has to protect the tenure, remuneration and other terms and conditions of the transferred employees until they were altered by the rules made by the State Government in that behalf. No such rule has been framed and U.P. Basic Educational Staff Rules, 1973 does not contain any provision regarding service conditions of the class IV employees which would alter the service conditions of the erstwhile employees of schools run by Local Bodies. The respondents have not been able to place before the Court any such rule altering the entitlement of the erstwhile employees. The Government Orders dated 8.8.1994 and 13.6.2007 issued by the State Government would, therefore, be of no application.
The same issue has been considered by the Division Bench of this Court in Special Appeal Defective No. 25 of 2016 (the U.P. Basic Shiksha Parishad and 4 others Vs. Dharnidhar Dubey), wherein it was held that in absence of any statutory rule, the decision/direction of the State Government under Section 13(2) of the Act, 1972 cannot have any overriding effect over the statutory provisions of Section 9. The service conditions of the erstwhile employees of the Basic Schools run by Local Bodies would not be altered in absence of any rule framed under Section 19 of the Act, 1972.
The denial of leave encashment and gratuity to the petitioner's father who was an erstwhile employee of the Zila Parishad, Allahabad on transfer to the Basic Education Board under Section 9 of the Act, 1972, therefore, is illegal.
Sri Bhanu Pratap Singh and Sri Harsh Vardhan Gupta learned Advocates appearing for the respondent no. 2-the District Basic Education Officer, Kaushambi have relied upon the judgments of this Court in Basic Shiksha Adhikari Sitapur and others vs. Mishri Lal and other1, State of U.P. and others vs. Shashthi Dutt Shastri and others2 and Devendra Kumar Verma and others vs. Secretary, Department of Financial Services, Ministry of Finance and others3 to vehemently contend that an employee working on fixed payment cannot be treated at par with the regular employee and hence is entitled for leave encashment or gratuity.
The ratio of the judgments relied by the counsels for the respondent no. 2-the District Basic Education Officer, Kaushambi are not attracted in the facts and circumstances of the present case.
Lastly, considering the stand of the respondent in the affidavit dated 17.9.2019 that the petitioner's father did not submit an option for entitlement to gratuity as per the Government Order dated 23.11.1994, it is relevant to note that contradictory stand has been taken by the respondent in different affidavits filed at different point of time.
Reliance placed upon the Government Order dated 23.11.1994 to deny payment of gratuity, admissible to the petitioner's father, therefore, is not sustainable. Moreover, the petitioner's father did not retire rather he had unfortunately died on 12.9.2005. There is no question of submitting option by him in terms of the Government Order dated 23.11.1994 because of unforeseen circumstances.
It may not be out of place to mention here that the respondents filed different affidavits taking contradictory stands in their vehement effort to deny legitimate dues of the petitioner's father. The District Basic Education Officer in the three affidavits filed before this Court did not come out with clean hands. This Court, therefore, is constrained to take a firm view that the respondents have no reasons to deny leave encashment and gratuity became due to the petitioner's father on 12.9.2005.
There is one more aspect of the matter. The non-teaching employees of Educational Institutions are entitled to payment of gratuity in view of the notification dated 3.4.1997 issued by the Central Government under Section 1(3)(c) of the Payment of Gratuity Act, 1972, thereby extending the Gratuity Act to Educational Institutions in which ten or more persons are employed or were employed on any day preceding twelve months.
The relevant part of the notification reads as under:-
"'Notification No. 5-42013/1/95-SS II. Dated 3rd APRIL 1997- In exercise of the powers conferred by CI. (c) of sub-clause (3) of Sec 1 of the Payment of Gratuity Act. l972, (39 of 1972). the Central Government hereby specifies the educational institutions in which ten or more persons are employed or were employed on any day preceding 12 months as a class of establishments to which the said Act shall apply effect from the date of publication of this notification.
Provided that nothing contained in this notification shall effect the operation of the notification of the Ministry of Labour S.O. 239 dated 8-1-1982."
The educational institutions, therefore, come within the meaning of establishment notified under Section 1(3)(c) of the Payment of Gratuity Act, 1972. In the definition of "employee" under the Payment of Gratuity Act, 1972 only exclusion is of such person who holds post under the Central Government or the State Government and is governed by any Act or by the Rules providing for payment of gratuity.
The definition of "employee" in Section 2(e) of the Payment of Gratuity Act, 1972 reads as under:-
"2(e) "employee" means any person (other than an apprentice) employed on wages, 4 [***] in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, 5 [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity]. "
The wide definition of "employee" under the Payment of Gratuity Act, thus, includes non-teaching staff of an Educational Establishment for payment of gratuity under the Act where there is no rule providing for gratuity.
In the instant case of the deceased employee, as per own stand of the respondents, there is no rule governing the payment of gratuity. Further under Section 4 of the Payment of Gratuity Act, 1972, an employee is entitled to gratuity after he has rendered continuous service for not less than five years on his death due to accident or disease.
The "continuous service" as defined in Section 2A(1) of the Payment of Gratuity Act, 1972 means uninterrupted service for a period of five years including services which may be interrupted on account of sickness, accident, leave, absence from duty without leave rendered before or after the commencement of this Act. Sub-section (2) of Section 2A provides that where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer; (i) if he had worked for a period of not less than 190 days in an establishment which works for less than six days in a week; and (ii) 240 days, in any other case.
Having gone through the above provisions of the Payment of Gratuity Act, 1972, it is more than evident that even a temporary employee who has rendered more than 240 days of service during the period of twelve calendar months preceding the date of reference is entitled to gratuity.
In the instant case, there is no dispute with regard to the nature of engagement of the petitioner's father being continuous from the date of engagement i.e. 24.10.1970 till date of his death i.e. 12.9.2005. Entitlement to Gratuity, therefore, cannot be denied to him on the premise that it was not payable to an employee working on fixed payment.
In view of the above discussion, the denial of terminal benefits such as gratuity and leave encashment of the petitioner's father is illegal.
Further as noted above, there is a considerable delay in payment of amount of Group insurance due to the petitioner's father.
For the aforesaid, while allowing the present writ petition, respondent no. 2 namely the District Basic Education Officer, Kaushambi and respondent no. 4 namely the Finance and Accounts Officer, Basic Education, Kaushambi are directed to finalize the claim of petitioner for payment of leave encashment and gratuity, admissible to his father, by computation of the same within the period of three months from today. Actual payment shall be made to the petitioner towards the said dues within a period of three weeks, thereafter.
The petitioner is also held entitled for interest @ 8% per annum on Rs. 56,188/- (the delayed payment of group insurance) admittedly made vide cheque dated 16.9.2019, from the date of death of the petitioner's father i.e. 12.9.2005 till the actual date of payment. Simultaneously, the petitioner is also held entitled for interest @ 8% per annum on the withheld amount of gratuity and leave encashment, from the date of death of the petitioner's father i.e. 12.9.2005 till the date of actual payment.
In case of non-compliance on the part of the respondents of the directions given hereinabove, it would be open for the petitioner to avail appropriate remedy available in law.
Subject to the above observations and directions, the writ petition is allowed.
Order Date :- 22.10.2019
Brijesh (Sunita Agarwal, J.)