Allahabad High Court
Devendra Nath Rai vs State Of U.P. And 3 Others on 17 January, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 50704 of 2017 Petitioner :- Devendra Nath Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Awadh Behari Singh,Manish Singh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri A.B. Singh, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the respondents.
2. The petitioner is assailing the validity of the order impugned dated 1.7.2017 passed by the respondent no.3, Chief Development Officer/Executive Director, Matsya Palak Vikas Abhikaran, Ghazipur and for direction to the respondents to make payment of gratuity alongwith interest to him within stipulated.
3. It appears from the record that the petitioner was working as Fisheries Extension Assistant in Matsya Palak Vikas Abhikaran, Ghazipur, which is a Society registered under the Societies Registration Act, 1860. He retired on 30.04.2017 after attaining the age of superannuation. Once the petitioner was not paid any gratuity then he preferred a Writ Petition No.9923 of 2017 (Devendra Nath Rai vs. State of UP and others) and the same was disposed of vide order dated 06.3.2017 with direction to the respondent no.3 to pass appropriate orders regarding payment of gratuity of the petitioner. By the impugned order dated 1.7.2017, the respondent no.3 has refused to pay the gratuity to the petitioner, giving rise to the present writ petition.
4. In this backdrop, learned counsel for the petitioner submits that the petitioner was working as Fisheries Extension Assistant in Matsya Palak Vikas Abhikaran, Ghazipur. He was provided the benefit of scale and other benefits from time to time. The benefit of revision of pay after implementation of 5th and 6th Pay Commission report was also extended to the employees working in Matsya Palak Vikas Abhikaran, which is reflected from the Government order dated 21.11.2012 appended as Annexure-4 to the writ petition. Once the gratuity has not been given to the petitioner, then he had approached this Court by preferring the Writ Petition No.9923 of 2017 (Devendra Nath Rai vs. State of UP and others) and the same was disposed of on 06.3.2017 with following observations:-
"The aforesaid question has already been considered by this Court in Writ-A No. 23129 of 2008 (Ram Prakash vs. State of U.P. and others) wherein the said order dated 1.2.2002 as noted above was quashed insofar as the petitioner therein was concerned and a direction to make payment of gratuity to the petitioner was given. Again the same controversy was before this Court in Writ-A No. 21610 of 2010 (Yogendra Nath Singh vs. State of U.P.) and by judgement and order dated 12.2.2015, this Court allowed the said writ petition and quashed the order dated 13.1.2010 passed by the Commissioner, Village Development Uttar Pradesh and a direction was issued to the respondents to make payment of gratuity. The aforesaid judgment was challenged by filing a Special Appeal (Defective) No. 456 of 2015. The said special appeal was disposed of vide judgment dated 7.7.2015 clearly providing that the mandamus which has been issued by the learned Single Judge will operate against the DRDA of which the respondent is an employee and which is a society under the Act of 1860.
The submission of the learned counsel of the petitioner is that in view of the aforesaid judgment the petitioner is also entitled for payment of gratuity in the light of notification dated 6.9.1997 issued by Government.
Attention was also drawn to a letter dated 11th August, 2015 issued by the State Government to Commissioner, Rural Development to make payment of gratuity in the light of the judgment rendered in Special Appeal (Defective) No. 456 of 2015 (State of U.P. and others vs. Yogendra Nath Singh), which was disposed of by this Hon'ble Court on 7.7.2015.
Learned Standing Counsel could not dispute the aforesaid legal position. In such view of the matter, no fruitful purpose will be served by calling for a counter affidavit or keeping this petition pending.
Prima facie, the petitioner is entitled for payment of gratuity as the claim of the identically situated persons has already been given in compliance of the judgment of the Division Bench of this Court. In such view of the matter, the respondent no. 3-Chief Development Officer, Ghazipur is directed to pass appropriate orders regarding payment of gratuity in the case of the petitioner, in the light of the judgment as noted above and the notification dated 6.9.1997 issued by the Central Government and ensure payment thereof out of the fund already released by the government on 4.10.2016 provided there is no other hurdle on facts in the case of the petitioner, preferably within a period of three months from the date of production of certified copy of this order."
5. Learned counsel for the petitioner further submits that in pursuance of the aforesaid directions, the Chief Development Officer, Ghazipur had passed the impugned order on 01.7.2017, wherein he has refused to pay the gratuity to the petitioner on the ground that there are only six employees working in the Abhikaran, which are less than the number prescribed under the Government notification dated 6.9.1997. At the time of issuing the notification dated 6.9.1997 there were 15 employees working in Abhikaran and being paid their salary, which is reflected from the attendance register of September, 1997. Even earlier also the objection was raised that such employees are not entitled for payment of gratuity as they are not government servants. The said question has already been considered by this Court in Writ-A No. 23129 of 2008 and a direction to make payment of gratuity to the petitioner was given. Again the same controversy was before this Court in Writ-A No. 21610 of 2010 and the same was allowed on 12.2.2015. The aforesaid judgment was challenged in Special Appeal (Defective) No. 456 of 2015, which was disposed of on 7.7.2015 clearly providing that the mandamus, which has been issued by the learned Single Judge, will operate against the DRDA of which the respondent is an employee and which is a society under the Act of 1860. He submits that in view of the aforesaid judgments the petitioner is also entitled for payment of gratuity in the light of notification dated 6.9.1997 issued by Central Government.
6. Per contra, Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel has opposed the writ petition and submits that admittedly there were only six persons working and the strength was less than 10 members, which is the requirement under the Act to extend the benefit of the Act. Therefore, there is no infirmity in the order impugned and no interference is required.
7. The Court has proceeded to examine the record in question and finds that the petitioner retired on 30.4.2017 serving as Fisheries Extension Assistant in Matsya Palak Vikas Abhikaran, Ghazipur, which is a Society registered under the Societies Registration Act, 1860. Once he was not paid any gratuity then he preferred a Writ Petition No.9923 of 2017 and the same was disposed of vide order dated 06.3.2017 with direction to the respondent no.3 to pass appropriate orders regarding payment of gratuity of the petitioner. By the impugned order dated 1.7.2017, the respondent no.3 has refused to pay the gratuity to the petitioner on the ground that there are only six employees working in the Abhikaran, which are less than the number prescribed under the Government notification dated 6.9.1997. The said question has already been considered by this Court in the writ petition filed by Yogendra Nath Singh and by judgement and order dated 12.2.2015, this Court allowed the said writ petition and quashed the order dated 13.1.2010 passed by the Commissioner, Village Development Uttar Pradesh and a direction was issued to the respondents to make payment of gratuity in the light of the notification dated 6.9.1997 issued by the Central Government. Relevant part of the judgement is reproduced herein below:-
"In assailing the above order by means of this writ petition the submission of learned counsel for the petitioner is that for payment of gratuity under the Payment of Gratuity Act, 1972 (hereinafter referred to as the Gratuity Act) it is not necessary that the retired employee should be a government servant.
The Gratuity Act provides for the scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishment. The word establishment used in Section 1(3)(b) of the Gratuity Act is wide enough to embrace in itself a society registered under the Societies Registration Act and is not confined to commercial establishments alone.
A learned Single Judge of this court vide judgment and order dated 14.03.2012 passed in Writ Petition No.20025 of 2006, Matadeen Yadav Vs. State of U.P. and others has considered the above aspect as to whether an employee of a registered society is entitle to gratuity irrespective of the fact that he is not an employee of the government and has held that in view of the notification dated 06.09.1997 employees of the registered societies are entitle to gratuity under the Gratuity Act which cannot be denied on the ground that they are not employees of the government.
In view of the aforesaid decision, the impugned order dated 13.01.2010 annexure-7 to the writ petition passed by the Commissioner Village Development Uttar Pradesh is unsustainable in law and is hereby quashed and a mandamus is issued to the respondents to make payment of the gratuity to the petitioner in the light of the notification dated 06.09.1997 issued by the Central Government within a period of two months form the date of production of the certified copy of this order.
The writ petition is allowed."
8. The aforesaid judgment was assailed by the State of UP by preferring a Special Appeal (Defective) No. 456 of 2015 (State of UP and 3 others vs. Yogendra Nath Singh). The said special appeal was disposed of by a Division Bench of this Court vide judgment and order dated 7.7.2015 with following observations:-
"The issue before the Court is as to whether the dispute in regard to the funding requirement of the DRDA, can in any manner, affect the entitlement of an employee to the payment of gratuity. The entitlement of an employee to receive gratuity is not in dispute. As an employee of a registered society, and as held in the judgment of the learned Single Judge in Matadeen Yadav's case, the respondent was entitled to the payment of gratuity under the Act of 1972. The relationship of employer and employee is between the respondent and the DRDA which is a society registered under the Act of 1860. Hence, the mandamus which has been issued by the learned Single Judge would operate against the society with whom there is a relationship of employer and employee. The purported difficulty which the State Government faces in regard to receiving the share of the Union Government towards the expenditure cannot, in our view, affect the entitlement of an employee or his right to receive the payment of gratuity from his employer once the entitlement is not in dispute. Any dispute or difficulty as between the State and the Union Governments has to be resolved at the governmental level and cannot be a ground to deny the payment of gratuity. All that we need to clarify is that the mandamus which has been issued by the learned Single Judge will operate against the DRDA of which the respondent is an employee and which is a society under the Act of 1860.
The special appeal is, accordingly, disposed of. There shall be no order as to costs."
9. So far as the issue in hand, the same has already been settled by Hon'ble Orissa High Court in Sibaram Pradhan vs. State of Orissa and ors in W.P. (C) No.10536 of 2009 decided 19.4.2011, wherein the Court found that as per Section 1 (3A) of the Societies Registration Act, a shop or establishment, to which this Act has become applicable, shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable, falls below ten. Therefore, seen from every angle, the claim of the petitioner is protected. The relevant paragraph nos.6 and 7 of the judgement are reproduced as under:-
"6. After having gone through the Orissa Ministerial Service Regularization of Recruitment and Conditions of Service of Irregular Recruits in the office of Heads of Department, District Offices and Subordinate Offices) Rules, 1975, I find that as per clause 3 of the said Rules, an irregular recruit shall be deemed to have been validly and regularly recruited and appointed as an Assistant or Clerk, as the case may be. In the present case, the petitioner's services have been validated, which was rendered earlier with effect from 22.7.1964 to 7.9.1976. As per the stand of the opposite parties, FFDA, Ganjam is having less than 10 number, which is a requirement under the Act to extend the benefits of the Act. But this fact has been challenged by the petitioner by filing a rejoinder and along with the rejoinder he has placed on record Annexure-A/1, which clearly spells out that when the agency was formed, the Government had sanctioned 16 posts to form the FFDA, which was fully controlled, funded and managed by the Director of Fisheries and Department of Fisheries. Apart from this, the petitioner also placed on record an additional affidavit dated 19.1.2011 regarding sanction of 16 nos. of posts by the Government of Orissa in Fisheries and Animal Husbandry Department. Moreover, in Annexure-E/1 of the additional affidavit, it is clearly stated in Para-2 of the letter that the Government has been pleased to sanction posts for formation of FFDA, Ganjam and it has been concurred by the Finance Department vide letter dated 7.6.1976. In the said letter 16 nos. of posts were created and sanctioned for functioning of FFDA, Ganjam. In view of this, it is crystal clear that the contention of the opposite parties is against record and the same is not liable to be accepted. After having gone through the Act, I find that as per Section 1 (3-A) of the Act, a shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten. Therefore, seen from every angle, the claim of the petitioner is protected. According to Section 2 (e) of the Act, the petitioner is an employee as defined under the Act. As per the definition, any person in any establishment, factory, mines, oil field, plantation etc. to do any skilled semi skilled, unskilled, manual, supervisory, chemical or clerical works are governed under the Act. The petitioner is a retired clerk in the FFDA, Ganjam. He attained at the age of superannuation on 31.8.1999. His retirement order is available on record as Annexure-5. Learned counsel for the petitioner has rightly pointed out that the other agencies of the State like Orissa Renewable Development Agency, State Urban Development Agency, Integrated Tribal Development Agency and District Rural Development Agency have formulated the service regulation by incorporating Payment of Gratuity Act. It is settled law that the applicability of Payment of Gratuity Act is one of the minimum service condition made available to employees and it is constitutionality valid. The Act is a welfare measure introduced in the interest of the workman to securer economic justice and to have a sustenance after his retirement. The authorities are under legal obligation to extend the benefit to an employee as the right to pension and gratuity and the same has been considered as a fundamental right under Article 19 (1) of the Constitution. It is well settled that the retired employee of a particular establishment belong to one homogenous class. The employer must not create heterogeneity in extending the benefit to some and denying the others, which is hit by Articles 14 and 16 of the Constitution of India.
7. In view of what has been discussed above, I find that the petitioner is entitled to gratuity as admissible to him under the Payment of Gratuity Act, 1972. Accordingly, the opposite parties are directed to calculate the amount of gratuity payable to the petitioner for the period of service rendered under FFDA, Ganjam, i.e., from 24.9.1976 to 31.8.1999 and the same be disbursed to him within a period of two months from the date of receipt of a copy of this order after deducting the amount of gratuity already paid.
Before I part with this order of mine, I may observe that it is the duty of the Government to release such amounts at the earliest. Grant of gratuity is not a bounty but a right of the Government servant. Delay in settlement of such benefit is frustrating and must be avoided at all costs. This is indeed unfortunate. The case before this Court is a clear example of departmental delay, which is not excusable. The petitioner retired on 31.8.1999 and it was only after 11.1.2010, the date when the interim order was passed in this writ petition, a sum of Rs.10,000/- was paid by the Government. The amount was due to the petitioner, but even then it is being denied without any valid reason. It is crystal clear that gratuity was not paid to the petitioner well in time and the payment of gratuity with or without interest, as the case may be, does not lie in the domain of discretion of its statutory compulsion. The benefit of gratuity can not be denied in the instant case as discussed above. It is a valuable right of the petitioner to get gratuity and any delay in payment of gratuity must be visited with payment of penalty of interest. In the instant case, the petitioner attained the age of superannuation on 31.8.1999 and so far after lapse of eleven years, he has not received payment of gratuity. Payment of gratuity amount was required to be paid to the petitioner on the date when he retires or on the following day. The instant case is a glaring instance of such culpable delay in payment of gratuity amount due to the petitioner, who retired on 31.8.1999. Keeping in view all the facts and circumstances of the case, it is made clear that the petitioner would be entitled to interest at the rate of nine per cent per annum from the date of filing of the writ petition, i.e. 22.07.2009 till payment of gratuity amount."
10. At the time of issuing the notification, 15 employees were working, and they were governed under the Gratuity Act of 1972. Once on the said Society the Act of 1972 was applicable then the petitioner shall continue to be governed by the Act of 1972 notwithstanding that the number of persons, employed therein at any time after it has become so applicable, falls below ten.
11. The Act of 1972 is a welfare measures introduced in the interest of workman to secure economic justice and to have sustenance after his retirement. Accordingly, the authorities are under legal obligation to extend the benefit to an employee as the right of gratuity.
12. Once the issue in hand has already been settled by this Court in Yogendra Nath Singh's case (supra), which has been affirmed by the Division Bench of this Court in Special Appeal Defective No.456 of 2015 and in view of the judgement in Sibaram Pradhan's case (supra), wherein Hon'ble Orissa High Court held that as per Section 1 (3A) of the Societies Registration Act, a shop or establishment, to which this Act has become applicable, shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable, falls below ten, then in such circumstances this Court is of the opinion that the order impugned is unsustainable under the facts and circumstances.
13. In view of above, the impugned order cannot sustain and the same is set aside, accordingly.
14. Consequently, the writ petition is allowed and the matter is relegated to the competent authority i.e. Director, Matsya Vibhag, U.P. Lucknow (respondent no.2) to look into the grievance of the petitioner and pass appropriate order strictly in accordance with the observations so made by this Court within a period of two months from the date of receipt of certified copy of this order.
Order Date :- 17.1.2020 RKP