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Ram Deo Pathak v. State Of U.P. And Others - WRIT - A No. 49607 of 2004 [2007] RD-AH 2167 (9 February 2007)


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Court No, 29

Civil Misc. Writ Petition NO. 49607 of 2004

Ram Deo Pathak   Vs. State of U.P.  & others


Hon. Ran Vijai Singh,J.

The petitioner was initially engaged as daily wage employee  in the year 1974 very specific period 1.3.1974. Later on he was  employed under work charge  establishment. However on 16.1.1998  his services were regularized  and soon after regularization  of his service he retired on 17.3.1999. The petitioner has approached the respondents for payment of pension and gratuity but  the pension was not paid to the petitioner. However the payment of gratuity  was calculated  Rs. 37,032/-. The petitioner  has brought this calculation of respondents through annexure-11 of the writ petition. A counter affidavit has been filed by the State respondents stating therein that the petitioner is not entitled for his pension  as he has not completed 10 years service. It is also stated that payment of amount of gratuity  withholding the order of the Engineer-in-Chief. However, while filing  the counter affidavit  the respondents has brought  on record  the petitioner  is only entitled  for Rs. 5,385/- instead of Rs.37,032.

4.Payment  of gratuity  Act,1972

(2) Whereas it is provided that even the daily wager are also entitled for payment of gratuity and from perusal  of annexure-1 of the counter affidavit it is apparent  that the payment  of gratuity  has not been concluded  after considering his long service in the establishment, therefore this conclusion is prima facie illegal.

I have heard learned counsel for the petitioner and Sri Neeraj Upadhyay, learned Standing Counsel for the respondents.

Learned Standing Counsel appearing for the state respondents states  that apart from the facts and legal positions  detailed in the counter affidavit  has invited the attention of the court  towards the  decision of this Court reported in  2006 (3) ESC 2248, Bansh Gopal Vs. State of U.P. and others, wherein it has been held that if a person has not completed 10 years regular service  then he will not entitled for pension.

Learned Counsel for the petitioner  has placed reliance  on the decision of this court reported in (2006) 3 UPLBEC 2209, where the Hon'ble Single Judge dealing with the matter  as  daily wage  that the period of working  in the work charge establishment was also not  taken into consideration of the decision of the Division Bench.

Considering the facts and circumstance of the case I find  that in view of the Division Bench decision of this Court the petitioner is not entitled  for pension but so far as the gratuity part is concerned the calculation of the respondents appears to be wrong as the whole amount of gratuity  has not been taken into consideration his past service of work charge establishment.

In the circumstances I direct the respondents to pay the sanctioned amount  of gratuity as accepted by them within a period of 15 days  so far as the remaining part of the gratuity  for the period of working in the work charge establishment is concerned that may be decided by the respondents within a period of 2 months from the date of receipt of certified copy of the order of this Court and that amount shall be paid within one month thereafter.

With this observation the writ petition is disposed of.

Dt. 9.2.2007.



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