S.Vijayalakshmi Vs. Commissioner Hindu Religious and Charitable Endowment Dept. - Court Judgment

Excerpt:
in the high court of judicature at madras dated :01. 03.2013 coram the honble mr. justice vinod k.sharma w.p.no.5831 of 2009 and m.p.no.1 of 2009 s.vijayalakshmi .. petitioner .. vs ..1. the commissioner of hindu religious & charitable endowment department, nungambakkam, chennai.2. the joint commissioner, hindu religious & charitable endowment department, salem.3. the assistant commissioner, hindu religious & charitable endowment department, dharmapuri.4. the executive officer, arulmigu sivasubramaniaswamy thirukoil, kumaraswamy pettai, dharmapuri. .. respondents prayer:- writ petitions filed under article 226 of the constitution of india praying for the issuance of a writ of mandamus to direct the respondents to pay the arrears of salary, general provident fund, gratuity and other pensionary benefits including family pension and provide compassionate appointment to the son of the petitioner within a stipulated period. for petitioner : mr.s.m.subramaniam for respondents : mr.r.kannan, g.a. for rr1 4. - - - - - order the widow of late k.sabapathy has approached this court with a prayer for issuance of a writ in the nature of mandamus, directing the respondents to pay the arrears of salary, general provident fund, gratuity and other pensionary benefits including the family pension and provide compassionate appointment to the son of the petitioner. 2.the learned counsel for the petitioner has fairly conceded that the job held by the husband of the petitioner was not pensionable nor there is any ground to seek compassionate appointment, therefore, he does not wish to press the claim for family pension and compassionate appointment. 3.it is submitted by the petitioner that late husband of the petitioner was working as attendant at arulmigu sivasubramaniaswamy thirukoil, kumaraswamy pettai, dharmapuri and died on 31.12.2008, after rendering 34 years of service. 4.the case of the petitioner is, that in spite the fact, that the husband of the petitioner died while in service, the terminal benefits and gratuity has not been paid to the petitioner. 5.the case set up by the petitioner is that while the husband of the petitioner was in service, a dispute with respect to date of birth was raised by the department, but before any final decision could be taken thereon, the husband of the petitioner died on 31.12.2008. 6.on the demand made by the petitioner for grant of retiral benefits, the stand of the second respondent was that the late husband of the petitioner had submitted a letter for voluntary retirement. however, the perusal of the letter shows that the husband of the petitioner agreed for the decision, if any taken with respect to date of birth and age, but admittedly no such decision was taken. 7.the writ petition is opposed by the respondents by filing a counter. it is not disputed that the husband of the petitioner was employed as attender in the year 1975. the defense is that in the year 2007, some complaints were received alleging that the husband of the petitioner was aged about 71 years. 8.in the counter, it is submitted that the deceased-employee had admitted before the enquiry officer that he was not in possession of transfer certificate from the school and therefore, had produced a doctor certificate on 03.07.2001 showing his age to be 58 years, but, as per the voter id and ration card, the age of the deceased was 71 years. it was also stated that he was performing duties as per the medical certificate. it was only during the enquiry that he had come to know that there was some dispute with regard to his age, i.e., difference in age between the medical certificate and documents on record. finally, it was stated by him that he will abide by the action to be taken by the respondents. 9.however, it is not disputed that no action was taken nor any order was passed retiring the person from service, till the date of his death. 10.the stand in the counter is also, that in a letter addressed to the executive officer, the late k.sabapathy had submitted that he retired from service on 26.09.2007, but, till date, the pension and retiral benefits have not been paid. therefore, had requested for payment of dues. the stand of the respondents, therefore, in the counter is that late k.sabapathy had ceased to be in employment since 26.09.2007. 11.on consideration, i find that the defense raised by the respondents cannot be accepted. admittedly, there is no order passed by the respondents retiring late k.sabapathy from service. it is also not disputed that no final decision on enquiry was taken to determine the age 12.therefore, the stand of the respondents that late k.sabapathy had sought voluntary retirement cannot be accepted, as the employee cannot seek voluntary retirement unilaterally as even if such a request is made, it is required to be accepted by the employer and order passed voluntarily retiring the employee. in absence of any such order, employee would deem to be in employment. 13.in absence of any order of retirement/termination/action taken, and specially, in view of the admission, that late k.sabapathy served since 01.03.1975, no other conclusion than the one that he performed his duty till his death can be arrived at. 14.late k.sabapathy, having worked with the respondents for more than 33 years, was entitled to the retiral benefits including gratuity, as the stand of the petitioner that no gratuity is payable to the employees working with the respondents cannot be accepted, in view of the law laid down by the hon'ble full bench of this court in w.a.no.3825 of 2004, etc. batch, (e.gopal vs. arulmigu dhandayuthpaniswamy temple, palani) decided on 17.09.2012. 15.consequently, this writ petition is allowed. the respondents are directed to release the retiral benefits including gratuity, general provident fund as also the outstanding arrears of salary from due date, till the date of death of late k.sabapathy, to the petitioner. the needful be done within two months of receipt of certified copy of this order. however, it shall be open to respondents to adjust the amount already paid to the petitioner. 16.no costs. consequently, connected m.p. is closed. sra to 1. the commissioner of hindu religious & charitable endowment department, nungambakkam, chennai.2. the joint commissioner, hindu religious & charitable endowment department, salem.3. the assistant commissioner, hindu religious & charitable endowment department, dharmapuri.4. the executive officer, arulmigu sivasubramaniaswamy thirukoil, kumaraswamy pettai dharmapuri

Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :

01. 03.2013 Coram THE HONBLE MR. JUSTICE VINOD K.SHARMA W.P.No.5831 of 2009 and M.P.No.1 of 2009 S.Vijayalakshmi .. Petitioner .. Vs ..

1. The Commissioner of Hindu Religious & Charitable Endowment Department, Nungambakkam, Chennai.

2. The Joint Commissioner, Hindu Religious & Charitable Endowment Department, Salem.

3. The Assistant Commissioner, Hindu Religious & Charitable Endowment Department, Dharmapuri.

4. The Executive Officer, Arulmigu Sivasubramaniaswamy Thirukoil, Kumaraswamy Pettai, Dharmapuri. .. Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the respondents to pay the arrears of salary, general provident fund, gratuity and other pensionary benefits including family pension and provide compassionate appointment to the son of the petitioner within a stipulated period. For Petitioner : Mr.S.M.Subramaniam For Respondents : Mr.R.Kannan, G.A. For RR1 4. - - - - - ORDER The widow of Late K.Sabapathy has approached this Court with a prayer for issuance of a writ in the nature of mandamus, directing the respondents to pay the arrears of salary, general provident fund, gratuity and other pensionary benefits including the family pension and provide compassionate appointment to the son of the petitioner. 2.The learned counsel for the petitioner has fairly conceded that the job held by the husband of the petitioner was not pensionable nor there is any ground to seek compassionate appointment, therefore, he does not wish to press the claim for family pension and compassionate appointment. 3.It is submitted by the petitioner that late husband of the petitioner was working as attendant at Arulmigu Sivasubramaniaswamy Thirukoil, Kumaraswamy Pettai, Dharmapuri and died on 31.12.2008, after rendering 34 years of service. 4.The case of the petitioner is, that in spite the fact, that the husband of the petitioner died while in service, the terminal benefits and gratuity has not been paid to the petitioner. 5.The case set up by the petitioner is that while the husband of the petitioner was in service, a dispute with respect to date of birth was raised by the department, but before any final decision could be taken thereon, the husband of the petitioner died on 31.12.2008. 6.On the demand made by the petitioner for grant of retiral benefits, the stand of the second respondent was that the late husband of the petitioner had submitted a letter for voluntary retirement. However, the perusal of the letter shows that the husband of the petitioner agreed for the decision, if any taken with respect to date of birth and age, but admittedly no such decision was taken. 7.The writ petition is opposed by the respondents by filing a counter. It is not disputed that the husband of the petitioner was employed as Attender in the year 1975. The defense is that in the year 2007, some complaints were received alleging that the husband of the petitioner was aged about 71 years. 8.In the counter, it is submitted that the deceased-employee had admitted before the enquiry officer that he was not in possession of transfer certificate from the school and therefore, had produced a doctor certificate on 03.07.2001 showing his age to be 58 years, but, as per the Voter ID and ration card, the age of the deceased was 71 years. It was also stated that he was performing duties as per the medical certificate. It was only during the enquiry that he had come to know that there was some dispute with regard to his age, i.e., difference in age between the medical certificate and documents on record. Finally, it was stated by him that he will abide by the action to be taken by the respondents. 9.However, it is not disputed that no action was taken nor any order was passed retiring the person from service, till the date of his death. 10.The stand in the counter is also, that in a letter addressed to the Executive Officer, the late K.Sabapathy had submitted that he retired from service on 26.09.2007, but, till date, the pension and retiral benefits have not been paid. Therefore, had requested for payment of dues. The stand of the respondents, therefore, in the counter is that Late K.Sabapathy had ceased to be in employment since 26.09.2007. 11.On consideration, I find that the defense raised by the respondents cannot be accepted. Admittedly, there is no order passed by the respondents retiring Late K.Sabapathy from service. It is also not disputed that no final decision on enquiry was taken to determine the age 12.Therefore, the stand of the respondents that Late K.Sabapathy had sought voluntary retirement cannot be accepted, as the employee cannot seek voluntary retirement unilaterally as even if such a request is made, it is required to be accepted by the employer and order passed voluntarily retiring the employee. In absence of any such order, employee would deem to be in employment. 13.In absence of any order of retirement/termination/action taken, and specially, in view of the admission, that Late K.Sabapathy served since 01.03.1975, no other conclusion than the one that he performed his duty till his death can be arrived at. 14.Late K.Sabapathy, having worked with the respondents for more than 33 years, was entitled to the retiral benefits including gratuity, as the stand of the petitioner that no gratuity is payable to the employees working with the respondents cannot be accepted, in view of the law laid down by the Hon'ble Full Bench of this Court in W.A.No.3825 of 2004, etc. batch, (E.Gopal vs. Arulmigu Dhandayuthpaniswamy Temple, Palani) decided on 17.09.2012. 15.Consequently, this writ petition is allowed. The respondents are directed to release the retiral benefits including gratuity, general provident fund as also the outstanding arrears of salary from due date, till the date of death of Late K.Sabapathy, to the petitioner. The needful be done within two months of receipt of certified copy of this order. However, it shall be open to respondents to adjust the amount already paid to the petitioner. 16.No costs. Consequently, connected M.P. is closed. sra To 1. The Commissioner of Hindu Religious & Charitable Endowment Department, Nungambakkam, Chennai.

2. The Joint Commissioner, Hindu Religious & Charitable Endowment Department, Salem.

3. The Assistant Commissioner, Hindu Religious & Charitable Endowment Department, Dharmapuri.

4. The Executive Officer, Arulmigu Sivasubramaniaswamy Thirukoil, Kumaraswamy Pettai Dharmapuri