The Allahabad High Court has directed to pay gratuity along with 9 per cent interest to a teacher who voluntarily retired after 27 years 9 months 28 days of service at the age of 50 years giving option of retirement in 60 years.
A Single Bench of Justice Kshitij Shailendra passed this order while hearing a petition filed by Dr Ashok Kumar Tomar.
The petitioner was appointed on the post of lecturer in 1982 in an aided educational institution. Thereafter, pursuant to the process issued for appointment on the post of Principal, the petitioner applied and was appointed on the post of Principal on 23.10.2002.
The date of birth of the petitioner being 5.11.1959, when he reached age of 50 years in 2009, he opted for voluntary retirement after completing the length of service of 27 years, 9 months and 28 days. The voluntary retirement of the petitioner was accepted by the authorities.
While the retirement dues of the petitioner were not being paid, petitioner filed Writ-A, which was disposed of by the Court order dated 22.9.2010, whereby the Joint Director of Education, Saharanpur Region Saharanpur was directed to consider the grievance of the petitioner with regard to non-payment of his dues.
Pursuant to the order dated 22.9.2010, passed by the Court, the Joint Director of Education, Saharanpur, passed an order dated 9.12.2010, whereby the payment of pension to the petitioner was granted, however the gratuity was refused.
Thereafter, the petitioner filed Case before the Controlling Authority under the Payment of Gratuity Act, 1972. The said authority vide order dated 6.9.2013 directed the respondents to pay a sum of Rs 6,46,041, as the amount of gratuity to the petitioner.
The Challenging the order dated 6.9.2013, the State filed Writ, which was dismissed by this Court vide order dated 27.1.2014 on the ground of availability of alternative remedy by filing statutory appeal.
Thereafter, the respondents filed before the appellate authority under the Act, 1972, which has been allowed by the order dated 3.12.2015.
The petition was filed in the year 2016 and during the pendency of the writ petition, an affidavit was filed on behalf of respondents annexing therewith another order dated 11.9.2020, whereby the Deputy Director of Education (Intermediate), Saharanpur Division Saharanpur again denied gratuity to the petitioner by placing reliance upon Government Order dated 29.8.1981. The petitioner by means of an amendment application challenged the order dated 11.9.2020. The amendment application was allowed and, therefore, the said order is also under challenge.
Siddharth Khare, counsel for the petitioner submitted that the order impugned is based upon wrongful interpretation of Section 2 (e) of the 1972 Act and authority has taken a wrong view that the petitioner falls within the exclusion clause of the definition ’employee’, as he is an employee of the State Government.
Khare further submitted that another ground taken for denying the gratuity to the petitioner is applicability of Government Order dated 29.8.1981, which, in fact, does not apply in the case of the petitioner.
He also submitted that even the subsequent order dated 11.9.2020 is based upon same proposition of the applicability of the Government Order dated 29.8.1981.
In view of the above, the contention of counsel for the petitioner is that the first ground taken in the order impugned that the petitioner would fall in the exceptional clause of Section 2 (e) of the Act, 1972 and, therefore, not entitled to get payment of gratuity, becomes unsustainable.
Insofar as the second ground contained in the order impugned that is applicability of the Government Order dated 29.8.1991 is concerned, Khare Submitted that the said Government Order deals with a situation where the teacher concerned gives an option for retirement at the age of 58 years.
He, therefore, submitted that the Government Order has no application in the case of the petitioner nor does it affect those matters where a Principal or a Teacher opts for voluntary retirement at any age.
Respondents have filed counter affidavit in which a stand has been taken that the retirement age of the teachers has been extended from 60 years to 62 years and since the petitioner opted for 60 years as age of retirement in place of 58 years, he would not be entitled for gratuity.
Standing Counsel has vehemently argued that petitioner is estopped from claiming payment of gratuity as despite giving an option of retirement at the age of 60 years, he took voluntary retirement at the age of 50 years.
Standing Counsel has further argued that the petitioner could not abandon the services prior to 60 years.
“After hearing counsel for the parties, I find that in view of amending Act, which came into force retrospectively on 3.4.1997 and in view of the judgment of Supreme Court in Birla Institute of Technology (supra) and Independent Schools’ Federation of India (supra), it cannot be said that the petitioner would fall under the exceptional or exclusion clause of the definition ’employee’. I find that petitioner is fully covered by the definition of employee so as to entitle him to get gratuity. Insofar as the applicability of Government Order dated 29.8.1981 is concerned, I do not find that it is a restriction in claiming voluntary retirement by a teacher concerned. The said Government Order only provides for submitting option for retirement either at the age of 58 years or 60 years and has nothing to do with the aspect of voluntary retirement.
A perusal of aforesaid Clause-4 shows that the regulations will not apply for those teachers, who did not give option for retirement at the age of 58 years. Regulation-11 deals with voluntary retirement aspect and I do not find anything, which would restrain a teacher from seeking voluntary retirement at the age of 58 years or prior thereto.
From overall interpretation of the Government Order and regulations forming part thereof, I find that the reasons assigned for denying gratuity in both the orders impugned on this score are unsustainable”, the Court observed while allowing the petition.
“The impugned orders dated 3.12.2015 and 11.9.2020 are hereby quashed by issuing a Writ of Certiorari.
A Writ of Mandamus is issued to the respondents 3, 4 and 6 to compute the amount of gratuity payable to the petitioner after hearing the petitioner and release the same in his favour within a period of two months from the date of production of certified copy of this order. The petitioner shall also be entitled for interest @ 9% per annum on the amount of gratuity from the date of his retirement till the date of actual payment. This amount shall be in addition to the amount of pension, which the petitioner is already getting”, the Court ordered.