2014 (2) TMI 630 - HC - Indian Laws

Deduction in gratuity amount - Gratuity amount deducted for earned leaves - Held that - No counter affidavit has been filed on behalf of Respondent nos.1 to 5. However, on record, an affidavit shown by the Dy. Superintendent of Police (Headquarters), Nalanda purported to be filed on behalf of Respondent no.6 is available. Respondents have not controverted the statement made in the writ petition specifically in its paragraph-8 that the husband of the petitioner was on duty in Police Line, Nalanda between the period for which recovery order has been passed. Fact remains that the recovery of Rs.99,858/- was directed to be made from the gratuity amount of husband of the petitioner, who died in harness. The death of the husband of the petitioner had occurred on 27.12.2004 and recovery order has been passed after about two years from the death of her husband. There is no ambiguity that the amount payable under the head of gratuity is not even liable to be attached in execution of decree or order. It is evident that right to receive the payment of gratuity amount is protected right and it cannot be taken away by the employer. Moreover , in peculiar facts and circumstances of the present case, the Court is of the opinion that the order for deduction of Rs.99,858/- from the gratuity amount was not sustainable in the eye of law and, as such, the writ petition stands allowed directing the Respondents to refund the deducted amount of Rs.99,858/- to the petitioner within a period of two months from the date of receipt/production of a copy of this order, failing which the petitioner shall be entitled to get interest on the said amount @ 6 % per annum from the date of order till the date of realization - Decided in favour Appellant.

Summary

Issues:
1. Recovery of deducted amount from gratuity.
2. Violation of principles of natural justice.
3. Permissibility of recovery from gratuity amount.
4. Interpretation of Section 13 of the Payment of Gratuity Act, 1972.

Analysis:
1. The petitioner sought a direction for the recovery of Rs. 99,858 deducted from her husband's gratuity. The husband, a constable, passed away while in service, and the deduction was made without proper justification. The recovery order was passed two years after the husband's death without affording the petitioner an opportunity to be heard. The Court held that recovery from gratuity was impermissible under Section 13 of the Payment of Gratuity Act, 1972, which protects gratuity from attachment in execution of any court order.

2. The Court noted that the recovery order was passed without following the principles of natural justice, as the petitioner was not given a chance to present her case before the deduction was made. This lack of opportunity to be heard violated fundamental fairness, leading to the decision in favor of the petitioner.

3. The Respondent argued that the recovery order was justified due to the husband's absence from duty despite receiving salary. However, the Court found that the recovery from the gratuity amount was not legally sustainable. The Respondents were directed to refund the deducted amount to the petitioner within two months, failing which she would be entitled to interest at 6% per annum.

4. The judgment emphasized the protection of gratuity under Section 13 of the Payment of Gratuity Act, 1972, stating that gratuity amounts are safeguarded from attachment by any court order. The Court's interpretation of this provision led to the decision that the recovery from the gratuity amount in this case was not permissible, ultimately resulting in the allowance of the writ petition in favor of the petitioner.