- (1.) In this appeal the order under challenge is dated 2nd July 2012 whereby the writ petition was dismissed on two grounds whereby the preliminary objection raised was upheld and writ petition dismissed.
(2.) Counsel for the appellant submits that the only issue that needs to be considered is whether the appellant herein would be entitled to recover the amount deducted on account of overdrawal of salary from the gratuity payable to her. The employee retired on 31st December 2005. PPO was issued on 27th August 2007 wherein it was specifically stated that on account of excess drawal sums were being deducted from the gratuity amount. This could not have been done as the appellant as legal heir and representative of the deceased employee is entitled to gratuity amount. In view of the decisions reported in 1994(2) SCC 521 and 2009 (3) SCC 475 the appellant is entitled to payment of sums withheld as there has been no misrepresentation or fraud practiced on the respondent by either the employee or his legal heir and representative. In fact, the recovery will cause extreme hardship to the appellant as her employee husband expired in June 2009. PPO was issued by the office of the Director of Pension, Provident Fund and Group Insurance. Pursuant to the decision in (Syed Abdul Kader vs. State of Behar, 2009 3 SCC 475) a circular has been issued by the Directorate of Pension, Provident Fund and Group Insurance wherein it has been specifically stated that in case of any of the four circumstances mentioned therein, no excess payment is to be recovered from the retiral benefit of an employee. Therefore, by the said circular a meaningful interpretation has been given to the decision reported in the case of Syed Abdul Kader & Ors.. The appellant is not seeking any refixation of pay scale as subsequently pension has been paid on the scale which would be applicable to the employee husband and the same has been accepted by the appellant without demur. The appellant as a legal heir and representative of the employee husband is entitled to payment of retiral benefits and while it may be true that the employee husband realized the retiral benefit without raising any objection, she as a legal heir and representative is also entitled to receive the retiral benefits which have been withheld. On an earlier occasion a writ petition was filed for payment of interest on the delayed payment of gratuity. The said writ petition was entertained and order passed. Therefore, the locus of the appellant cannot be questioned by the respondent authorities in this writ petition as no appeal has been filed from the order passed in the earlier writ petition.
(3.) The order under appeal in so far as it has held that the only person who could have been aggrieved is the Teacher is an error in law as the legal heir and representative of the employee is entitled to pension and the benefits of gratuity. Therefore, the order dated 2nd July 2012 be set aside.;