MAMATAMAYEE MOHARANA Vs. CHAIRMAN CUM MANAGING

JUDGEMENT

(1.) THE husband of the petitioner, late Pitabas Moharana, was working as an Electrician under the Grid Corporation of Orissa Limited (for short 'the Grid Corporation') and he died while in service on 7.3.1995 leaving behind the petitioner, two daughters and two sons. One of his major sons applied for employment under the Family Rehabilitation Assistance Scheme and when he was not given any such employment, he filed writ petition O.J.C. No. 14475 of 1997 and a Misc. Case No. 12533 of 1997 for interim orders. On 10.11.1997, this Court while issuing notice in the said writ petition passed an interim order in the said Misc. Case directing that the family pension etc, if admissible, shall be released by the opposite party in accordance with law within four months from the date of receipt of the order. After the said order, the opp. parties released the provident fund dues in respect of late Pitabas Moharana but did not release the gratuity. On 17.3.1998, all of a sudden, the Executive Engineer, Electrical, EHT (M) Division, Burla issued an office order that quarters No. 2RA 1/3 of 66 K.V. Grid S/S Hirakud which was allotted in favour of Pitabas Moharana Electrician of T.I.Sub Division, Burla is cancelled with effect from 7.7.1995, i.e., after grace period of four months from the date of expiry of Pitabas Moharana. Thereafter, on 10.6.1998 the Executive Engineer, Electrical, EHT (M) Division, Burla sanctioned a sum of Rs. 52,471.75 paise towards gratuity of late Pitabas Moharana. On 23.7.1908 the Executive Engineer issued a notice to the petitioner requesting her to vacate the aforesaid quarters within a week. This was followed by another letter dated 19.12.1998 of the Executive Engineer to the petitioner requesting her again to vacate the quarters so as to enable him to pay the balance gratuity after deduction of house rent till vacation of the quarters as per the rules. Finally, on 9.4.1999 the Executive Engineer passed an order allowing the family members of late Pitabas Moharana to retain the quarters upto 7.7.1995 at the standard rate and for deduction of penal rent at the rate of Rs. 900/ per month from 8.7.1995 to 28.1.1999 from the gratuity amount of Rs. 52,471.75. The petitioner has filed this writ petition praying for quashing the orders dated 17.3.1998, 23.7.1998, 19.12.1998 and 9.4.1999 (Annexures 3,4 series and 5) of the Executive Engineer and for a direction on the opp. parties to make immediate payment of the dues of the petitioner and, in particular, the gratuity with costs, compensation and compound interest.

(2.) AT the hearing, Mr. S. B. Das, learned counsel for the petitioner submitted that under Section 4(1)(c) of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act') gratuity is payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years on his death. He referred to Section 13 of the said Act which provides that no gratuity payable under the Act is liable to attachment in execution of any decree or order of any Civil, revenue or Criminal Court. He pointed out that Section 14 of the said Act further provides that the provisions of the Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment other than the Act. Mr. Das argued that in view of the provisions in Sections 13 and 14 of the Act, the gratuity payable under Section 4(1)(c) of the Act on the death of an employee cannot be adjusted towards the house rent to penal rent for the quarters under the occupation of the family of late Pitabas Moharana. In support of his aforesaid contention, Mr. Das cited the decision of the Supreme Court in Calcutta Dock Labour Board and Anr. v. Smt. Sandhya Mitra and Ors., A.I.R. 1985 S.C. 996 = 1985 Lab.I.C. 714. He also cited the decision of the Bombay High Court in Air India Ltd. v. Appellate Authority (Payment of Gratuity Act 1972) Regional Labour Commissioner (Central) Bombay and Ors., 1999 (81) FLR 900 in support of the proposition that the employer cannot claim the right of set off in respect of its dues against the amount of gratuity in view of the provisions of Section 14 of the Act. Mr. Das submitted that the claim of the petitioner for gratuity under the Act is sought to be resisted by the opp. parties on the ground that the establishment of the Grid Corporation has been exempted from the provision of the Act by notification dated 4.12.1999 issued by the Government of Orissa under Section 5 of the Act. But a reading of the said notification dated 4.12.1999 would show that the said notification only applies to gratuity payable on superannuation or retirement or resignation of an employee working under Grid Corporation and does not apply to gratuity payable on the death of an employee under Section 4(1)(c) of the Act. Mr. Das also cited the decision of the Supreme Court in D. V. Kapoor v. Union of India and Ors., AIR 1990 S.C. 1923 in which the Supreme Court has held that the right to gratuity is a statutory right and any order to withhold the gratuity as a measure of penalty is illegal and devoid of jurisdiction. He also relied on the observations of the Supreme Court in Gorakhpur University and Ors. v. Dr. Shitla Prasad Nagendra and Ors., AIR 2001 S.C. 2433 that the University authorities are not entitled to recover penal rent for occupation of quarters by way of adjustment against pension, gratuity and provident fund amounts indisputably due and unquestionably payable to the employee concerned. He also cited Balbir Kaur and Anr. v. Steel Authority of India Ltd. and Ors. 90 (2000) C.L.T.450 (S.C.) in which the Supreme Court has observed that the mandatory statutory obligation under Section 4 of the Act to pay gratuity amount in one lump sum in the event of an untimely death of a worker or an employee cannot be deferred by the employer by introduction of a family pension scheme. Mr. Das submitted that the Grid Corporation cannot refuse to pay the gratuity amount to the petitioner which was payable on the death of her husband by relying on its own scheme of payment of gratuity other than that provided in the Act. Finally, Mr. Das cited the decision of the Supreme Court in State of Kerala and Ors. v. M. Padmanabhan Nair, A.I.R. 1985 S. C. 356 in which the Supreme Court has held that pension and gratuity are no longer bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement or disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. Mr. Das argued that in view of the said decision of the Apex Court, this Court should direct the opp. parties to pay the gratuity amount of Rs. 52, 471.75 paise with interest at the market rate on such amount till the actual payment.

(3.) RULES 68, 69 and 70 of the Rules on which reliance has been placed by Mr. Patnaik, learned counsel for the opp. parties provided for recovery and adjustment of Government dues payable by Government servant on retirement against retirement gratuity and do not provide for recovery and adjustment of Government dues in respect of Government servants against death gratuity. Chapter IX of the Rules is titled 'Sanction of family pension and death gratuity in respect of Government servants dying while in service' and Rule 78 in the said Chapter IX of the Rules provides for adjustment and recovery of Government dues from the death gratuity. The relevant provisions of the said Rule 78 which provide for adjustment and recovery of licence fee for Government accommodation from death gratuity are quoted herein below :