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U.P. POWER CORPORATION LIMITED AND ANOTHER versus ASHWANI KUAMR BAJPAI

High Court of Judicature at Allahabad

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U.P. Power Corporation Limited And Another v. Ashwani Kuamr Bajpai - WRIT - C No. 31384 of 2006 [2006] RD-AH 10573 (2 June 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 52

Civil Misc. Writ Petition No. 31384 of 2006

U.P. Power Corporation Limited and another

Versus

Sri Ashwani Kumar Bajpai

Hon'ble V.K. Shukla,J.

Petitioners' U.P. Power Corporation Ltd. has approached this Court questioning the validity of the decision taken by the Controlling Authority and the Appellate Authority under the provisions of the  Payment of Gratuity Act 1972.

Brief background of the case as mentioned in the writ petition is that one Rohit Kumar Bajpai had been performing and discharging duties as Routine Grade Clerk with U.P. Power Corporation Limited. Petitioners contend that said Rohit Kumar Bajpai remained unmarried and there has been no nomination in favour of any one in his service book. Said Rohit Kumar Bajpai died and  after death of Rohit Kumar Bajpai, one Ashwani Kumar Bajpai claiming himself to be the nephew of Late Rohit Kumar as well as nominee moved for payment of post-death cum retiral benefits of said Rohit Kumar. This fact has been admitted that in the paper pertaining to the G.P.F. Amount Ashwani Kumar Bajpai has been mentioned as nominee. It has further been contended that as there was no nomination in favour of Ashwani Kumar  Bajpai and coupled with this he was not falling in the category of relative as defined and as relative as defined were no at all in existence in terms of the order of Board dated 26.08.1998, as such entire gratuity amount is liable to be forfeited. The Controlling Authority considered the claim of Ashwani Kumar Bajpai and directed for payment of gratuity amount. Aggrieved petitioners preferred appeal and said appeal has also been dismissed and it has been observed that final satisfaction shall be made qua Ashwani Kumar Bajpai then thereafter payment of due gratuity amount be ensured. At this juncture present writ petition has been filed.

Sri A.K. Mehrotra, learned counsel for the petitioner contended with vehemence that in the present case in term of Board's order dated 26.08.1998 as applicable to the erstwhile U.P. State Electricity Board now U.P. Power Corporation Limited and condition dealing with regard to the payment of gratuity, claim of the Ashwani Kumar Bajpai cannot be adverted to as there is no nomination in his favour and coupled with this he does not fall within the category of the relative who are entitled to get gratuity amount and as such entire gratuity amount of late Rohit Kumar Bajpai  is liable to be forfeited. Thus, the view which has been taken by the Controlling Authority as well as appellate authority is perverse, unreasonable and contrary to statutory provision.

Sri H.R. Misra, Advocate on the other hand countered the said submission by contending that there is valid registered Will in favour of Ashwani Kumar Bajpai and further there is valid nomination in favour of Ashwani Kumar Bajpai made by late Rohit Kumar as such it is wholly incorrect to say by the petitioners that there is no valid nomination and amount in question is liable to be forfeited, consequently no interference be made and writ petition be dismissed.

After respective arguments have been advanced Circular of Board dated 26.08.1998 which covers the field for payment of gratuity, and other documents appended has been looked into. A bare perusal of circular would go to show that qua gratuity amount computation has to be done as per the formula prescribed. Eligibility for receiving gratuity amount has also been provided for. The amount of gratuity is to be paid on the basis of nomination made. In the absence of nomination, the gratuity amount is to be distributed, in the manner prescribed amongst family members provide for. First category of the relatives are (i) Husband or Wife (ii) Son (iii) Unmarried daughter. Said amount is to be equally distributed amongst existing first category of family members, and in the case family members of the first category are not available then the said amount is to be equally distributed amongst second category of family members namely (i) Married daughter/widow daughter (ii) Brothers and unmarried sisters below  18 years of age  (iii) Mother/ Father (iv) Children of predeceased son. In the absence of these category of family members not available, the amount in question is liable to be forfeited in favour of Board/ Corporation. Thus, it is clear that gratuity amount is to be paid to incumbent in whose favour there is nomination and in the absence of nomination to members of family. In the absence of nomination and thereafter family members the amount in question is to be forfeited in favour of petitioners.

Tested on the touch stone of the scheme on the basis of which gratuity amount is being claimed can in the  fact of the present case it be presumed that there is valid nomination in favour of Ashwani Kumar Bajpai entitling him to receive Gratuity amount is a question to be adverted to. This fact has been admitted in para-5 of the writ petition that in respect of G.P.F. amount Ashwani Kumar Bajpai was made nominee of late Rohit Kumar Bajpai. Said nomination has been filed at page 61 of the paper book. Date of said nomination is 22.06.2000. In the said nomination in unequivocal terms nomination has been made in favour of Ashwani Kumar Bajpai and it has also been mentioned that in the event of death entire amount of G.P.F would be payable to Ashwani Kumar Bajpai. It has also been provided for that in the event of death of nominee, the said rights will accrue on Smt. Kiran Lata Bajpai wife of Ashwani Kumar Bajpai. Prima facie said nomination appears to be for G.P.F. amount but closer look of the same clearly reflects that same was for the entire dues of late Rohit Kumar Bajpai. A categorcial note has been appended while making this nomination that apart from G.P.F. amount all other dues of Rohit Kumar Bajpai shall be payable to person who has been referred to above. This note clears that picture that apart from G.P.F. amount for receiving all other dues of Rohit Kumar Bajpai nomination has been made in favour of Ashwani Kumar Bajpai. Petitioners have accepted this nomination but are confining applicability of the same qua G.P.F. amount only. The stand taken by petitioners is totally unjustifiable stand, and the effect of the note appended, cannot be permitted to be wiped out, in the way and manner as has been sought to be done in the present case, specially when petitioners accepted the same, without raising any objection. Nephew does not fall within the definition of family, but a person in whose favour there is nomination in all eventuality is entitled to receive gratuity amount. Here, it cannot be said, that there is no nomination in favour of Ashwani Kumar Bajpai to receive the gratuity amount.      

Gratuity is neither bounty nor charity and is substantive right of an employee and in fact is property of an employee which he has earned in lieu of length of service being put in by him. This has been noted by petitioners themselves at page 26 of the Scheme in view of the judgment of Hon'ble Apex Court in the case of Karela Vs. Padnayan Nayar, reported in 1985 SCC (L&S) 278. Such right of an employee cannot be permitted to be defeated in casual and mechanical manner.  The Controlling authority as well as the Appellate Authority in the present case have taken just and correct view and said view cannot be said to be unreasonable.

Consequently no interference is warranted and writ petition is dismissed.

No orders as to cost.

02.06.2006

Dhruv

     


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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