CWP No.5469 of 2001 [1] THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No.5469 of 2001 Date of Decision: 22 - 10 - 2008 Smt.Sukhdev Kaur Dhinsa ....Petitioner v. The Managing Committee, Nankana Sahib ....Respondents Public School and another CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Pawan Kumar, Sr.Advocate with Mr.Swapan Shorey, Advocate for the petitioner. Mr.K.S.Sidhu, Sr.Advocate with Mr.G.S.Sidhu, Advocate for the respondents. *** KANWALJIT SINGH AHLUWALIA (ORAL) Petitioner was appointed as a Principal by the respondent-Trust on 3.8.1989. She joined her duties on 21.8.1989. As per petitioner's averment, she attained age of superannuation on 16.9.1998. Vide Annexure P-4, she was allowed to continue in service till attaining the age of 60 years, meaning thereby her services were extended for two years. By filing the present petition, she has claimed gratuity and benefit of earned leave encashment which is due to her on the eve of retirement. A stand has been taken by the respondents that since the petitioner could not be permitted to continue beyond the age of 58 years and CWP No.5469 of 2001 [2] her continuation upto age of 60 years was without any justification, therefore, salary for 1 year 7 months paid to her is to be recovered. This stand of the respondents cannot be accepted, once the petitioner has discharged her duties, that also as a result of issuance of extension granted to her by the Additional Secretary of the Trust vide Annexure P-4, petitioner had to superannuate on attaining the age of 60 years. On 17.10.2008, this Court after hearing the parties had ordered that since retiral benefits are being withheld on a wrong assumption which cannot be sustained in the eyes of law, this Court intend to impose heavy costs and pass severe strictures and also called a responsible officer of the Trust. In compliance of that order dated 17.10.2008, Director of the Trust is present in Court. He has brought the record. As per record, they have calculated and computed the gratuity for 10 years and 8 months and 11 days and a sum of Rs.85,390/- is due to the petitioner as gratuity. Mr.Pawan Kumar appearing for the petitioner has read Section 4 of the Payment of Gratuity Act, 1972. As per Section 4(2) every employee is entitled for gratuity at the rate of 15 days wages for every completed year of service and where he has completed service in excess of six months, the same is to be taken as one year for computation. In the present case, admittedly petitioner has completed 10 years 8 months and 11 days of service, therefore, she is entitled to gratuity for 11 years. It is admitted by the parties that petitioner is entitled to 9% statutory interest on the amount of gratuity. As per own calculations of the respondents, salary of the petitioner (Basic pay plus dearness allowance) for each month was Rs.17,078/-. Therefore, on this basis, the petitioner is to be paid gratuity for CWP No.5469 of 2001 [3] 11 years along with interest at the rate of 9%. Petitioner completed 60 years of age on 30.4.2000. Therefore, she will be also entitled to 9% interest on the delayed payment from the date of retirement. It is stated by counsel for the respondents that Rs.64,000/- was paid to the petitioner during the pendency of this writ petition. The amount of Rs.64,000/- be deducted from total amount of gratuity, rest of the amount of gratuity be paid to the petitioner as observed above. As per Rule 9 of the Service & Conduct Rules for the employees of the respondent-Trust, petitioner is to be treated as non vacation employee. Rule 9 with regard to Vacation Pay reads as under:- “The teachers shall be treated as vacation employees. The Principal, Librarian, clerks, accountant, steno, attendants, peons shall be treated as non-vacation employees.” Therefore, the petitioner is also entitled to the benefit of earned leave encashment at the time of retirement in accordance with rules. The same shall be calculated and paid to the petitioner within three months from today along with balance amount of gratuity. Petition stands disposed off. ( KANWALJIT SINGH AHLUWALIA ) October 22, 2008. JUDGE RC