Allahabad High Court
Mahadeo Prasad Gupta vs State Of U.P. & Others on 18 January, 2010
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
Court No. - 38 Case :- WRIT - A No. - 4612 of 2009 Petitioner :- Mahadeo Prasad Gupta Respondent :- State Of U.P. & Others Petitioner Counsel :- T.K. Tripathi,K.S. Chauhan Respondent Counsel :- C.S.C. Hon'ble Amreshwar Pratap Sahi,J.
Heard Shri K.S. Chauhan, learned counsel for the petitioner and the learned standing counsel for the respondents.
Affidavits have been exchanged between the parties and, therefore, the matter is being disposed of finally under the Rules of Court at this stage.
The petitioner retired on 31.07.2007. He was granted provisional pension but his financial benefits were not processed and he has not been paid his gratuity. The prayer made in this writ petition is for releasing the amount, which is due to the petitioner, including the amount of gratuity with interest thereon.
Counter affidavits have been filed on behalf of all the respondents and the stand taken by the respondent nos. 1, 2 and 3 in the counter affidavit is that the petitioner while laying down his office has not given charge of nine measurement registers, as a result whereof, the claim of the petitioner was not being finalized. The allegation is that the non-co-operation of the petitioner has led to this situation. It has further been stated in paragraph 16 of the counter affidavit dated 02.07.2009 that no action has been taken on account of the pendency of this writ petition.
The petitioner has taken a clear stand in paragraph 15 of the writ petition that neither any disciplinary proceedings have been initiated nor is there any proceeding pending. It has further been alleged that the recital contained in respect of nine registers has already been explained in the reply itself which the petitioner had given in writing to the Soil Conservation Officer, Fatehpur on 05.08.2008. The petitioner had never received charge of the said registers and as a matter of fact, the same can be inquired from Shri Shiva Swaroop Srivastava the predecessor in the office of the petitioner. Learned counsel further contends that those registers that have been called for by the Deputy Director Agriculture at Allahabad were the same that had been submitted by Shri Shiva Swaroop Srivastava for which the petitioner is nowhere concerned and, therefore, an appropriate inquiry be made from the said office and not from the petitioner. Learned counsel for the petitioner, therefore, contends that the petitioner had submitted his reply and there is no reason given in the counter affidavit nor there is any order so as to fix the responsibility on the petitioner. It has further been submitted that in view of the provisions of Section 4 of the Payment of Gratuity Act, the same cannot be withheld and further in the absence of any disciplinary proceedings, there is no occasion for the respondents to withhold the same.
Learned standing counsel, on the other hand, contends that it is on account of non-availability of the said documents that the matter has been delayed due to the default of the petitioner himself.
Having perused the records and the affidavits and having heard the learned counsel for the parties, it is evident that gratuity cannot be withheld until and unless responsibility is fixed on a government servant in accordance rules. The counter affidavits do not dispute the fact that there is no disciplinary proceeding pending against the petitioner nor the same is under contemplation. In the absence of any such action proposed against the petitioner there is no occasion for the respondents to proceed to withhold the gratuity of the petitioner. Reference may be had to the decision of this Court in the case of Radhey Shyam Dixit Vs. State of U.P. and others, 2006 (4) ALJ (NOC) 773 (ALL.).
The said judgment has followed the decision of the Apex Court wherein it has been held that gratuity cannot be deducted until and unless it is permissible under Rules.
In the instant case nothing has been shown by the respondents so as to empower them to deduct or withhold the gratuity.
Accordingly, the writ petition is allowed.
The respondents are directed to release the entire retiral benefits of the petitioner including the gratuity, which is payable to him. The petitioner has retired on 31.07.2007. He shall also entitled to receive interest according to rules as permissible under the Gratuity Act. The said payment be released within three months from today.
Order Date :- 18.1.2010 Akv