Malti Devi vs Jharkhand Urja Vikas Nigam Ltd.

The learned counsel for the petitioner is absent.Â

Prayer in the writ petition is for a direction upon the respondents to pay gratuity and leave encashment payable to the petitioner’s husband with

12% interest from date of entitlement.Â

In the counter-affidavit the respondents have taken a stand that the husband of the petitioner died on 22.05.2011, however, the petitioner did not

submit the papers for payment of death-cum-retiral benefits, gratuity, G.P.F etc. till 26.11.2013 and those were received in apex board on 13.12.2013.

It is stated that family pension has been sanctioned for the petitioner and she has been paid G.P.F and G.S.S amounts payable to her husband. The

respondents have taken a stand that gratuity and leave encashment can be paid to the petitioner only after she vacates the official quarter allotted to

her husband. The respondents have relied on letter dated 11.04.2000 for not releasing gratuity and leave encashment to the employee on the above

ground.Â

In the writ petition the petitioner has made a prayer for a direction upon the respondents to permit her to retain the official quarter on payment of

normal rent.Â

The Payment of Gratuity Act, 1972 provides that gratuity can be withheld or forfeited, only when it is found that the employee whose services have

been terminated for any act of willful omission or negligence causing any            damage or loss or destruction of property

belonging to the employer to the extent of the damage or loss so caused.    Sub-section 6(b) to Section 4 provides that the gratuity payable to

an employee may be wholly or partially forfeited if the services of such employee has been terminated for his riotous or disorderly conduct or any

other act of violence on his part or if the service of such employees has been terminated for any act which constitutes an offence involving moral

turpitude. Section 7(3) of the Payment of Gratuity Act, 1972 provides that within 30 days the employer shall make payment of gratuity to the

employee and Section 7(3-A) provides that if gratuity payable to an employee is not paid but for no fault of employee it shall accrue interest. Section

13 of the Act provides that gratuity payable to an employee shall not be liable to attachment in execution of any decree or order of a civil, revenue or

criminal court and Section 14 confers overriding effect of the provisions of Payment of Gratuity Act, 1972 over any other enactment. In “BalbirÂ

Kaur and Another Vs. Steel Authority of India Ltd. and Others†reported in (2000) 6 SCC 493, it has been held that, “the payment of gratuity

is no longer in the realm of charity but it  is the statutory right provided in favour of the employeeâ€​.  Â

The husband of the petitioner was not terminated from service on any of the grounds mentioned under sub-section 6 to Section 4 of the Payment

of Gratuity Act, 1972. It is not the case pleaded by the respondents that on account of an act; disorderly or riotous, on the part of the husband of the

petitioner loss has been caused to the respondent-Board. By an executive order provisions of the Payment of Gratuity Act, 1972 cannot be

superseded. Â

Accordingly, withholding of gratuity on the ground of retention of official quarter by the petitioner is held illegal. The petitioner was not paid

gratuity payable to her husband within the statutory period, which would earn thereon, however, in the facts of the case in lieu thereof the respondents

are directed not to impose penal rent for retention of the official accommodation by the petitioner. The Director of Accounts-respondent no. 3 is

directed to ensure payment of gratuity to the petitioner, however, without interest, but leave encashment shall be paid to the petitioner with statutory

interest @ 5% p.a. within a period of four weeks. Upon payment of gratuity and leave encashment, the petitioner shall vacate the official

accommodation within next eight weeks.Â

The writ petition stands disposed of.    Â

Â