The death of the husband of the petitioner had occurred on
27.12.2004 and recovery order has been passed after about two years from the death of her husband . It is also not in dispute that before passing order for recovery, no opportunity of hearing was given to the petitioner and violating the principles of natural justice, the order for recovery was passed. So far as recovery from the amount of gratuity is concerned, the Court is of the opinion that recovery from the amount of gratuity was not permissible by the Respondents, particularly in view of statutory bar under Section 13 of the Payment of Gratuity Act. At this juncture, it would be appropriate to quote Section-13 of the Payment of Gratuity Act,1972 which is as follows:
"13.Protection of gratuity - No gratuity payable under this Act [and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5] shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court." In view of the aforesaid provision, there is no ambiguity that the amount payable under the head of gratuity is not even liable to be attached in execution of decree or order. It is evident that right to receive the payment of gratuity amount is protected right and it cannot be taken away by the employer.1
Patna High Court - Orders
Most.Prabha Shukla vs The State Of Bihar & Ors on 12 September, 2011
03 12 -09-2011 Heard Sri Satish Chandra Jha, learned counsel for the petitioner and Sri Himanshu Kumar, learned A.C. to Govt. Advocate no.5.
The sole petitioner in the present writ petition has prayed for directing the Respondents to make payment of Rs. 99,858/- , which has been deducted from the gratuity amount of her husband. The husband of the petitioner, while functioning as constable in the police line, Nalanda died on 27.12.2004. The petitioner, thereafter, submitted Pension Form claiming death-cum- retiral dues of her husband and initially she was allowed 90 % provisional pension and gratuity. At subsequent stage, final pension and gratuity was authorised by the Accountant General , Bihar, Patna and thereafter Respondent no.5/ Superintendent of Police, Nalanda vide Memo No.1984 dated 27.10.2006 asked the Treasury Officer, Nalanda to 2
deduct Rs.99,858/- from the gratuity amount and thereafter pay the balance amount to the petitioner. In compliance of the order issued by the Respondent no.5/ Superintendent of Police, Nalanda after deducting Rs.99,858/- from the gratuity amount , balance amount was paid to the petitioner.
The petitioner after having come to know regarding deduction of Rs.99,858/- from the gratuity amount represented before Respondent no.4/ Dy. Inspector General of Police, Central Zone, Patna praying therein to direct the concerned Officer to release the deducted amount. The petitioner in the present writ petitioner has annexed the said communication contained in Memo no.1984 dated 27.10.2006 as Annexure-1 to the writ petition, which was issued by the Superintendent of Police, Nalanda to the Treasury Officer, Nalanda for deducing the amount of Rs.99,858/- from the gratuity amount. The petitioner thereafter learnt on receipt of Memo No.7649 dated 19.10.2007 issued by the Superintendent of Police, Nalanda that her husband was shown absent from 11.3.2003 to 27.12.2004, for which earned leave of 210 days , half earned leave of 368 days and extraordinary leave of 79 days i.e. total 657 days were sanctioned.
Learned counsel for the petitioner, while pressing the present writ petition has asserted that the husband of the petitioner was all along on duty and while serving, he died on 27.12.2004. It was asserted that during the said period, the husband of the petitioner was already functioning. While the husband of the petitioner was posted in Biharsharif Court, he was seriously ill and 3
due to serious ailment, he was carried to Patna Medical College & Hospital and after release from there, he joined his duty in the Police Line, Nalanda . However, on 27.12.2004 he died while serving at Police Line, Nalanda. Learned counsel for the petitioner further submits that after the death of her husband, without affording any opportunity of hearing the Respondent no.5 without ascertaining the fact that the husband of the petitioner was already on duty in illegal manner passed order for deducting the amount of Rs.99, 858/- on the plea that earlier salary was paid to the petitioner's husband, whereas he was shown absent for the said period. It was submitted that after the death of her husband on such unsustainable plea, no deduction order was required to be passed in the year 2006, whereas the death of her husband had occurred on 27.12.2004. Learned counsel for the petitioner in support of his submission that no recovery was required to be made without affording any opportunity of hearing has referred to number of case law reported in 1997 (2) PLJR 857 (Ram Autar Agarwal Vs. Reserve Bank of India & Anr.), 2010 (1) PLJR 113 (Ram Kumar Bharati Vs. Bihar State Electricity Board & Ors and 2010 (1) PLJR 347 (Satyanarayan Lal Vs. Bihar State Electricity Board). It has further been argued that no deduction can be made from the amount of gratuity and in the present case, the recovery has been affected from the amount of due gratuity of her husband. Accordingly, it has been prayed to direct the Respondents to refund the deducted amount of Rs.99,858/- along with interest.
Sri Himanshu Kumar, learned A.C. to Govt. Advocate 4
no.5 has opposed the prayer of the writ petitioner. It was submitted that recovery order was passed after noticing the fact that despite the husband of the petitioner was absent he had received salary and, as such, recovery order was legally and rightly passed. Learned counsel for the State, while referring to averment made in paragraph-4 of the counter affidavit filed by the Dy. Superintendent of Police, Headquarter, Nalanda, has argued that on 19.4.2003, it was reported that the petitioner's husband had left for treatment on 11.3.2003 and thereafter had not reported for duty till 19.4.2003 . Accordingly, by order dated 21.4.2003 payment of salary was stopped, but inadvertently this could not be incorporated in the master roll and the petitioner's husband received his salary. This error was subsequently detected and accordingly by Annexure-A/1, i.e. order dated 29.7.2006 it was directed to adjust the extra amount paid to the husband of the petitioner.
In the present writ petition, no counter affidavit has been filed on behalf of Respondent nos.1 to 5. However, on record, an affidavit shown by the Dy. Superintendent of Police (Headquarters), Nalanda purported to be filed on behalf of Respondent no.6 is available. Respondents have not controverted the statement made in the writ petition specifically in its paragraph-8 that the husband of the petitioner was on duty in Police Line, Nalanda between the period for which recovery order has been passed. Fact remains that the recovery of Rs.99,858/- was directed to be made from the gratuity amount of husband of the petitioner, who died in harness. The death of the husband of the petitioner had occurred on 5
27.12.2004 and recovery order has been passed after about two years from the death of her husband . It is also not in dispute that before passing order for recovery, no opportunity of hearing was given to the petitioner and violating the principles of natural justice, the order for recovery was passed. So far as recovery from the amount of gratuity is concerned, the Court is of the opinion that recovery from the amount of gratuity was not permissible by the Respondents, particularly in view of statutory bar under Section 13 of the Payment of Gratuity Act. At this juncture, it would be appropriate to quote Section-13 of the Payment of Gratuity Act,1972 which is as follows:
"13.Protection of gratuity - No gratuity payable under this Act [and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under section 5] shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court." In view of the aforesaid provision, there is no ambiguity that the amount payable under the head of gratuity is not even liable to be attached in execution of decree or order. It is evident that right to receive the payment of gratuity amount is protected right and it cannot be taken away by the employer. Moreover , in peculiar facts and circumstances of the present case, the Court is of the opinion that the order for deduction of Rs.99,858/- from the gratuity amount was not sustainable in the eye of law and, as such, the writ petition stands allowed directing the Respondents to refund the deducted amount of Rs.99,858/- to the petitioner within a period of two 6
months from the date of receipt/production of a copy of this order, failing which the petitioner shall be entitled to get interest on the said amount @ 6 % per annum from the date of order till the date of realization.
With above observation and direction, the writ petition stands allowed.
( Rakesh Kumar, J.)
NKS/-
No comments:
Post a Comment