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