CWP No.5469 of 2001 [1]
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C. W. P. No.5469 of 2001
Date of Decision: 22 - 10 - 2008
Smt.Sukhdev Kaur Dhinsa ....Petitioner
v.
The Managing Committee, Nankana Sahib ....Respondents
Public School and another
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Pawan Kumar, Sr.Advocate with
Mr.Swapan Shorey, Advocate
for the petitioner.
Mr.K.S.Sidhu, Sr.Advocate with
Mr.G.S.Sidhu, Advocate
for the respondents.
***
KANWALJIT SINGH AHLUWALIA (ORAL)
Petitioner was appointed as a Principal by the respondent-Trust
on 3.8.1989. She joined her duties on 21.8.1989. As per petitioner’s
averment, she attained age of superannuation on 16.9.1998. Vide Annexure
P-4, she was allowed to continue in service till attaining the age of 60 years,
meaning thereby her services were extended for two years. By filing the
present petition, she has claimed gratuity and benefit of earned leave
encashment which is due to her on the eve of retirement.
A stand has been taken by the respondents that since the
petitioner could not be permitted to continue beyond the age of 58 years and
CWP No.5469 of 2001 [2]
her continuation upto age of 60 years was without any justification,
therefore, salary for 1 year 7 months paid to her is to be recovered.
This stand of the respondents cannot be accepted, once the
petitioner has discharged her duties, that also as a result of issuance of
extension granted to her by the Additional Secretary of the Trust vide
Annexure P-4, petitioner had to superannuate on attaining the age of 60
years.
On 17.10.2008, this Court after hearing the parties had ordered
that since retiral benefits are being withheld on a wrong assumption which
cannot be sustained in the eyes of law, this Court intend to impose heavy
costs and pass severe strictures and also called a responsible officer of the
Trust. In compliance of that order dated 17.10.2008, Director of the Trust is
present in Court. He has brought the record. As per record, they have
calculated and computed the gratuity for 10 years and 8 months and 11 days
and a sum of Rs.85,390/- is due to the petitioner as gratuity.
Mr.Pawan Kumar appearing for the petitioner has read Section
4 of the Payment of Gratuity Act, 1972. As per Section 4(2) every
employee is entitled for gratuity at the rate of 15 days wages for every
completed year of service and where he has completed service in excess of
six months, the same is to be taken as one year for computation. In the
present case, admittedly petitioner has completed 10 years 8 months and 11
days of service, therefore, she is entitled to gratuity for 11 years. It is
admitted by the parties that petitioner is entitled to 9% statutory interest on
the amount of gratuity. As per own calculations of the respondents, salary
of the petitioner (Basic pay plus dearness allowance) for each month was
Rs.17,078/-. Therefore, on this basis, the petitioner is to be paid gratuity for
CWP No.5469 of 2001 [3]
11 years along with interest at the rate of 9%. Petitioner completed 60 years
of age on 30.4.2000. Therefore, she will be also entitled to 9% interest on
the delayed payment from the date of retirement. It is stated by counsel for
the respondents that Rs.64,000/- was paid to the petitioner during the
pendency of this writ petition. The amount of Rs.64,000/- be deducted from
total amount of gratuity, rest of the amount of gratuity be paid to the
petitioner as observed above.
As per Rule 9 of the Service & Conduct Rules for the
employees of the respondent-Trust, petitioner is to be treated as non
vacation employee. Rule 9 with regard to Vacation Pay reads as under:-
“The teachers shall be treated as vacation employees.
The Principal, Librarian, clerks, accountant, steno, attendants,
peons shall be treated as non-vacation employees.”
Therefore, the petitioner is also entitled to the benefit of earned leave
encashment at the time of retirement in accordance with rules. The same
shall be calculated and paid to the petitioner within three months from today
along with balance amount of gratuity.
Petition stands disposed off.
( KANWALJIT SINGH AHLUWALIA )
October 22, 2008. JUDGE
RC