Brahma Lal vs Union of India and Others

Devi Prasad Singh, J.

Present writ petition has been preferred against the stoppage of Gratuity by the respondents under Article 226 of the Constitution of India.

The brief facts of the case are that the petitioner was retired as Railway Guard on 31.1.1989 and at the time of retirement he was in possession of railway quarter No.T/160B, situated at Simra Colony, Gonda. After his retirement from service, the respondents stopped the payment of Gratuity to the tune of Rs.51,150/ as he failed to vacate the premises occupied by him. However, the other retrial benefits were given to the petitioner. The Estate Officer of the Railway Department had issued a notice to the petitioner for payment of rent at the rate of Rs.505/ paise per month. Against the order of Estate Officer an appeal was filed in the Court of District Judge, Gonda. Which was registered M.R.A. No.10/91. After hearing the parties the said appeal was dismissed by judgment and Order dated 17.8.96. The District Judge while dismissing the appeal held that the rent demanded by the railway from the petitioner call for no interference by the Appellate Court and it was duty of petitioner to vacate the premises in question.

The only ground, which petition has been pressed by the petitioner is that the amount of Gratuity cannot be withheld for any reason whatsoever, including the reason assigned by the respondents that is the pending dues on account of the occupation premises in question. Petitioner has vacated the premises on 22.11.1996.

There is no doubt that in case, the petitioner was in occupation of railway quarter, after the age of superannuation he is liable to make payment on the prescribed rate. However whether on account of nonpayment of rent the petitioner''s Gratuity cannot be stopped. The Apex Court in a case report in 1981 (1) SCC 449, Som Prakash Rekhi v. Union of India and another, held that the post retiral benefits including the Gratuity and provident fund may not be stopped by the employer as a "set off". The employee has right to recover the amount by other modes provided under the law. For the convenience relevant portion from para 66 of the Soni Prakash Rekhi''s case (supra) is reproduced as under:

"Welfare benefits such as pensions, payment of provident fund and gratuity are in fulfillment of the directive principles. The payment of gratuity or provident fund should not occasion any deduction from the pension as a "set off". Otherwise, the solemn statutory provisions ensuring provident fund and gratuity become illusory. Pensions are paid out of regard for past meritorious services. The root of gratuity and the foundation of provident fund are different. Each one is a salutary benefaction statutorily guaranteed independently of other."

The Apex Court in other judgment report in (1994) 6 Supreme Court Cases 589 R. Kapur v. Director of Inspection (Painting and Publication) income Tax and another, para 8 of the aforesaid judgment of the Apex Court passed in R. Kapur''s case is reproduced as under:

"In this appeal before us the appellant urges that he would be entitled to 18% interest at least in view of judgment of this Court in State of Kerala v. M. Padmanabhan Nair. Relying on this ruling it is submitted that there is unjustified culpable delayin issuing the No Demand Certificate. The Tribunal having held that DCRG cannot be withheld because of the pendency of the claim for damages should have awarded interest at the rate of 18% per annum."

A Division Bench decision of this Court reported in (1988 (16) LCD 1277) in the case of Dr. Shitia Prasad Nagendra v. Gorakhpur University and others while deciding identical controversy relying upon the aforementioned two judgments of Apex Court held as under:

"In Civil Misc. Writ Petition No.2172 of 1996 "Sri S.N. Mathur v. Gorakhpur University. Gorakhpur and others'' a Division Bench of this Court considered the identical question, at length and in detail, and after examining the decision of the Hon''ble Supreme Court rendered in R. Kapur v. Director of Inspection (Painting and Publication) Income Tax and another, reported in (1994) 6 SCC at page589 and Som Prakash v. Union of India, reported in All India Reporter 1981 SC at page 212 held that pension and other retrial benefits cannot be withheld or adjusted or appropriated for the satisfaction of any dues outstanding against the retired employee."

Relying upon the aforesaid mentioned judgment, there is no doubt that the withholding of gratuity by the opposite parties is not sustainable under law. They have right to recover the rental charges of the premises occupied by the petitioner after the age of superannuation by any mode provided under law but not by stopping gratuity or provident fund.

In view of above the writ petition is allowed. The opposite parties are commanded to pay the dues of petitioner relating to the gratuity within a period of two months from the date of receipt of a copy of this judgment with the simple interest at the rate of 10% per annum.

It will be open for the respondents to take appropriate steps to recover the rent for the period petitioner had occupied the railway quarter in accordance to law.

The writ petition is allowed accordingly.

(Petition allowed)