Gratuity cannot be withheld posthumously unless the employee's service was terminated; death in harness entitles the widow to full gratuity under the Act.

JUDGMENT :

Abdul Moin, J.

1. Heard learned counsel for the petitioner, Shri Rajeev Kumar Sinha, learned counsel appearing on behalf of respondents No.1 to 3 and Shri Akhilesh Pratap Singh, learned counsel appearing on behalf of respondent No.4.

2. The instant petition has been filed praying for the following reliefs:

"(i). To issue a writ, order or direction in the nature of certiorari quashing the letter / order No. 28/EPF/24-25 dated 16.05.2024 and letter No. 175/DEL- sthapna/ 2023-2024 dated 30.03.2024 for recovery / adjustment of Rs.6,20,101.56/- from gratuity and other dues of the petitioner's deceased husband, copies of which are annexures 1 & 2 to the writ petition.

(ii). To issue a writ, order or direction in the nature of mandamus commanding the respondents to release the gratuity amount along with interest @12% and further directing the respondent No.4 to release the employees deposit link insurance amount (EDLI) along with interest at the market rate."

3. Learned counsels for the parties state that the facts of the case have already been set forth in detail in the order dated 11.11.2024.

4. For the sake of convenience, the order dated 11.11.2024 is reproduced below:-

"1. Heard learned counsel for the petitioner, Shri Rajeeva Kumar Sinha, learned counsel for respondents and Shri Akhilesh Kumar Singh, learned counsel for respondent No.4.

2. Under challenge is the order dated 16.05.2024, a copy of which is Annexure-1 to the petition, whereby the respondents No.1 to 3 have indicated about recovering of a certain amount from the gratuity payable to the petitioner in the capacity of being the widow of Late Sarvesh Srivastava, who died on 10.04.2021.

3. The contention is that there cannot be any occasion for the respondents to withhold the amount of gratuity in order to make recovery of certain amounts which might be payable by the deceased employee.

4. Shri Sinha, learned counsel appearing for respondents No.1 to 3 states that certain amount is sought to be recovered from the gratuity payable to the petitioner in the capacity of being widow of the deceased employee on account of there being shortage of stores that were noted in the stores which were required to be maintained by the husband of the petitioner inasmuch as he was working as Store Keeper in-charge at the time of his death and thus it has been found feasible to withhold the aforesaid amount.

5. Shri Sinha has referred to the provisions of sub section 6 of Section 4 Payments of Gratuity Act, 1972 to contend that in respect of any loss, willful omission or negligence causing any damage or loss or destruction of the property belonging to the employer the gratuity can be withheld.

6. The contention is that once the Act, 1972 itself empowers the respondents to make deduction from the amount of gratuity consequently there is no error in the order impugned.

7. However, bare perusal of the Sub Section 6 of Section 4 of the Act, 1972 indicates that prima facie withholding of gratuity would only be there in case of termination of an employee in certain circumstances and not otherwise. Even otherwise alleged shortage of stores is sought to be recovered from the gratuity of the deceased employee that too without affording any opportunity of hearing inasmuch as once the employee is already deceased there cannot be any occasion for issuance of any notice. However, Shri Sinha prays for and is granted 10 days' time to file a short counter affidavit to which reply may be filed within next three days.

8. List thereafter as fresh.

9. Meanwhile, lea