Allahabad High Court
Bareilly Nagar Nigam vs Smt. Sudama And Others on 13 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1910, (2020) 1 ALL WC 26 (2020) 1 CURLR 379, (2020) 1 CURLR 379
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 3 1. Case :- WRIT - C No. - 14272 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Smt. Sudama And Others Counsel for Petitioner :- Anil Tiwari,Satyam Singh Counsel for Respondent :- C.S.C. With 2. Case :- WRIT - C No. - 14156 of 2012 Petitioner :- Bareilly Nagar Nigam Through Its Municipal Commissioner Respondent :- Fatima Begum And Others Counsel for Petitioner :- Anil Tiwari,Shiv Nath Singh Counsel for Respondent :- C.S.C. 3. Case :- WRIT - C No. - 14274 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Munni Devi And Others Counsel for Petitioner :- Anil Tiwari,Hemant Kumar,Shiv Nath Singh Counsel for Respondent :- C.S.C. 4. Case :- WRIT - C No. - 14276 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Masih Charan And Another Counsel for Petitioner :- Anil Tiwari,Hemant Kumar,Satyam Singh Counsel for Respondent :- C.S.C. 5. Case :- WRIT - C No. - 14278 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Sushila And Others Counsel for Petitioner :- Anil Tiwari,Hemant Kumar,Satyam Singh Counsel for Respondent :- C.S.C. 6. Case :- WRIT - C No. - 14280 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Kamla And Another Counsel for Petitioner :- Anil Tiwari,Shiv Nath Singh Counsel for Respondent :- C.S.C. 7. Case :- WRIT - C No. - 14281 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Chanda And Another Counsel for Petitioner :- Anil Tiwari,Hemant Kumar,Shiv Nath Singh Counsel for Respondent :- C.S.C. 8. Case :- WRIT - C No. - 14282 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Naresh Chand Saxena And Another Counsel for Petitioner :- Anil Tiwari,Satyam Singh Counsel for Respondent :- C.S.C. 9. Case :- WRIT - C No. - 14284 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Duli And Others Counsel for Petitioner :- Anil Tiwari,Satyam Singh Counsel for Respondent :- C.S.C. 10. Case :- WRIT - C No. - 14285 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Ramvati And Others Counsel for Petitioner :- Anil Tiwari,Satyam Singh,Shiv Nath Singh Counsel for Respondent :- C.S.C. 11. Case :- WRIT - C No. - 14286 of 2012 Petitioner :- Bareilly Nagar Nigam Respondent :- Raman Lal And Another Counsel for Petitioner :- Anil Tiwari,Shiv Nath Singh Counsel for Respondent :- C.S.C.,Madhur Prakash Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Hemant Kumar, learned counsel for the petitioner and Sri Mata Prasad, learned Standing Counsel appearing for the State-respondents.
2. These petitions have been filed seeking to challenge a common order dated 04.02.2012 passed by the Controlling Authority under the Payment of Gratuity Act, 19721/Deputy Labour Commissioner, U.P., Bareilly in Case Nos.138/P.G.A./2004, 139/P.G.A./2004, 140/P.G.A./2004, 141/P.G.A./2004, 143/P.G.A./2004, 147/P.G.A./2004, 148/P.G.A./2004, 149/P.G.A./2004, 151/P.G.A./2004, 159/P.G.A./2004 and 160/P.G.A./2004. The necessary particulars in this regard are as follows:-
Serial Numbers Writ Petitions Parties Particulars of the cases before the Controlling Authority 1 Writ-C No.14272 of 2012 Bareilly Nagar Nigam Vs. Smt. Sudama & Ors.
Case No.139/P.G.A./2004/04.02.2012 2 Writ-C No.14156 of 2012 Bareilly Nagar Nigam through its Municipal Commissioner Vs. Fatima Begum & Ors.
Case No.140/P.G.A./2004/04.02.2012 3 Writ-C No.14274 of 2012 Bareilly Nagar Nigam Vs. Munni Devi & Ors.
Case No.147/P.G.A./2004/04.02.2012 4 Writ-C No.14276 of 2012 Bareilly Nagar Nigam Vs. Masih Charan & Anr.
Case No.151/P.G.A./2004/04.02.2012 5 Writ - C No.14278 of 2012 Bareilly Nagar Nigam Vs. Sushila & Ors.
Case No.149/P.G.A./2004/04.02.2012 6 Writ-C No.14280 of 2012 Bareilly Nagar Nigam Vs. Kamla & Anr.
Case No.143/P.G.A./2004/04.02.2012 7 Writ-C No.14281 of 2012 Bareilly Nagar Nigam Vs. Chanda & Anr.
Case No.138/P.G.A./2004/04.02.2012 8 Writ-C No.14282 of 2012 Bareilly Nagar Nigam Vs. Naresh Chand Saxena & Anr.
Case No.141/P.G.A./2004/04.02.2012 9 Writ-C No.14284 of 2012 Bareilly Nagar Nigam Vs. Duli & Ors.
Case No.148/P.G.A./2004/04.02.2012 10 Writ-C No.14285 of 2012 Bareilly Nagar Nigam Vs. Ramvati & Ors.
Case No.151/P.G.A./2004/04.02.2012 11 Writ-C No.14286 of 2012 Bareilly Nagar Nigam Vs. Raman Lal & Anr.
Case No.159/P.G.A./2004/04.02.2012
3. The writ petitions being based on similar set of facts, with the consent of parties, are being taken up and decided together.
4. Writ-C No.14272 of 2012, has been treated to be the leading petition, wherein the order dated 04.02.2012 passed by the Controlling Authority in Case No.139/P.G.A./2004 (decided alongwith the connected matters), is under challenge.
5. The records of the case indicate that upon an application filed by the respondent-workmen, Case No.139/P.G.A./2004 was registered before the Controlling Authority under the Payment of Gratuity Act, 1972/Deputy Labour Commissioner, U.P., Bareilly. In terms of the aforementioned application it was stated that only a part of the total gratuity amount due to them had been paid by the employer and accordingly claims were raised for payment of the balance amount. The aforementioned application came to be decided by the Controlling Authority by means of the order dated 17.03.2005 directing payment of the balance amount of gratuity.
6. Upon similar applications being filed by the workmen who are parties in the connected writ petitions, different orders bearing date 17.03.2005 were passed by the Controlling Authority allowing the claims for payment of difference of gratuity.
7. The aforementioned orders dated 17.03.2005 passed by the Controlling Authority came to be challenged by the petitioner, Bareilly Nagar Nigam, by filing writ petitions on the ground that the P.G. Act, 1972 was not applicable to the Bareilly Nagar Nigam. The particulars of these writ petitions are as follows:-
Serial Numbers Writ Petitions Parties 1 WRIT-C No.41977 of 2005 Bareilly Nagar Nigam through Municipal Commissioner Vs. Fatima Begum & Ors.2 WRIT-C No.41988 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Kamla & Ors.3 WRIT-C No.41932 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Masih Charan & Anr.4 WRIT-C No.41991 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Sushila & Ors.5 WRIT-C No.41929 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Ramvati & Ors.6 WRIT-C No.41982 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Smt. Sudama & Ors.7 WRIT-C No.41984 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Duli & Anr.8 WRIT-C No.41989 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Munni Devi & Ors.9 WRIT-C No.41936 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Raman Lal & Anr.10 WRIT-C No.41972 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Chanda & Others 11 WRIT-C No.41952 of 2005 Bareilly Nagar Nigam through Municipal Commissioner Vs. Naresh Chandra Saxena & Anr.12 WRIT-C No.60132 of 2005
Bareilly Nagar Nigam through Municipal Commissioner Vs. Munshi Lal & Anr.
8. The aforementioned writ petitions were decided together as a bunch by means of a common judgment and order dated 04.04.2011. The judgment dated 04.04.2011 is being reproduced below:-
"1. In this entire bunch of writ petitions, the order passed by Prescribed Authority under Payment of Gratuity Act, 1972 (hereinafter referred to as "1972 Act") has been assailed on the ground that the said Act has no application to Bareilly Nagar Nigam.
2. However, it is not demonstrated or shown to this Court as to how 1972 Act is not applicable to Bareilly Nagar Nigam. Application of 1972 Act is provided in Section 1(3) of the Act itself and read with definition clause, in my view, the Prescribed Authority has not erred in passing the impugned order applying the aforesaid Act to petitioner.
3. Learned counsel for the petitioner, however, submitted that it was pleaded before the Prescribed Authority that the workman having already availed benefit of gratuity under the rules framed by Municipal Corporation and the same having been paid, cannot claim benefit under 1972 Act, inasmuch as, payment of gratuity can be claimed either under 1972 Act or under the terms of statutory rules framed by Municipal Corporation and not both.
4. This question has been considered by the Apex Court in Beed District Central Coop. Bank Ltd. Vs. State of Maharashtra & Ors. (2006) 8 SCC 514 and referring to Section 4(5) of 1972 Act, the Apex Court has held that provisions of the Act envisage for one scheme. It can not be segregated. Sub-section (5) of Section 4 of 1972 Act does not contemplate that the workman would be at liberty to opt for better terms of the contract, while keeping the option open in respect of a part of the statute. While reserving his right to opt for the beneficent provisions of the statute or the agreement, he has to opt for either of them and not the best of the terms of the statute as well as those of the contract. He cannot have both. The Apex Court in para 16 categorically held that the workman cannot opt for both the terms. Such a construction would defeat the purpose for which sub-section (5) of Section 4 has been enacted.
5. To the same effect is the decision of Delhi High Court in Municipal Corporation of Delhi Vs. Smt. V.T. Naresh & Anr. In Civil Misc. Writ Petition No.128/83 decided on 14th August, 1985.
6. In taking the above view I am also fortified by a judgement of this Court in Nagar Ayukt, Nagar Nigam, Kanpur Vs. Mujib Ulla Khan & Ors. 2008(117) FLR 277.
7. Learned counsel for the workmen-respondents submitted that they have been directed to be paid only the difference and not more than that which fact could not be shown to be incorrect by learned counsel for the petitioner.
8. Since only difference has been directed to be paid to respondents-workmen so as to give the benefit of only one scheme and not both, I do not find any reason to interfere with impugned orders. However, only by way of clarification, I provide that the claim of workmen having been made under 1972 Act shall be confined to the benefit admissible thereunder and if payment of gratuity has been made under the rules framed by the Municipal Corporation, such amount would be taken into consideration while satisfying demand of workmen under impugned orders.
9. In the circumstances, I find no reason to interfere with the impugned order.
10. Writ petitions lacks merit. Dismissed."
9. An application seeking clarification of the judgment dated 04.04.2011 was filed, which was rejected vide order dated 22.11.2011.
10. Pursuant to the aforementioned judgment dated 04.04.2011 a common order dated 04.02.2012 has been passed by the Controlling Authority in all the connected matters pertaining to the workmen who are parties in the present writ petition and the connected petitions. The Controlling Authority in terms of the order dated 04.02.2012 has directed the petitioner to make necessary deposit in terms of the earlier order dated 17.03.2005 whereunder the claims of the workmen for payment of difference of the amount of gratuity had been allowed.
11. The order dated 04.02.2012 which is a common order in the bunch of matters decided together, has been sought to be assailed on the ground that as per terms of sub-section (5) of Section 4 of the P.G. Act, 1972 the workmen could not opt for the benefit of the terms of the statute as well as those of the contract and benefit of only one scheme could be taken.
12. Learned Standing Counsel appearing for the State-respondents has supported the order passed by the Controlling Authority by submitting that in terms of the order passed by the Controlling Authority only difference of the gratuity amount has been directed to be paid and as such it could not be said that the claims have been raised seeking benefit of the terms of the statute as well as those of the contract.
13. The issue with regard to the applicability of the P.G. Act, 1972 to municipal corporations, governed in terms of the provisions contained under the U.P. Municipal Corporation Act, 1959 is no longer res integra in view of the pronouncement made in the judgment in the case of Nagar Ayukt, Nagar Nigam, Kanpur Vs. Mujib Ullah Khan & Ors. with Nagar Nigam, Gorakhpur Vs. Ram Shanker Yadav & Anr.2 wherein taking into view of the provisions of the P.G. Act, 1972 and the notification dated 08.01.1982 issued under Section 1(3)(c), the P.G. Act, 1972 was held to be applicable. The relevant observations made in the aforesaid judgment are being extracted below:-
"3. The appellant, the Municipal Corporation, Kanpur is governed by the Uttar Pradesh Municipal Corporation Act, 1959, whereas, the Respondent is an employee of the appellant. The employees in both cases claimed gratuity by invoking the jurisdiction of the Controlling Authorities under the Act. The argument of the Appellant before the learned Single Judge was that the gratuity is payable in accordance with the Retirement Benefits and General Provident Fund Regulations, 1962 framed Under Section 548 of the 1959 Act as amended on 11.01.1988. Such Regulations contemplate payment of gratuity at the rate of 15 days' salary per month for 16.5 months. It was found by the High Court that it is the Act which is applicable, whereby, gratuity calculated at the rate of 15 days' salary for every completed year without any ceiling of months or part thereof.
4. The argument raised by the appellant before the High Court is, that the gratuity is payable in terms of Rule 4(1) of the 1962 Regulations published Under Section 548 (1) of the 1959 Act as amended on 11.01.1988. Therefore, the employees of the Municipalities are entitled to gratuity only in terms of such Regulations and not under the Act.
5. The High Court relied upon a judgment reported as Municipal Corporation of Delhi v. Dharam Prakash Sharma AIR 1999 SC 293 to hold that only employees of Central Government or the State Government are exempt from the applicability of the Act, therefore, the employees of the Appellants would be governed by the Act and are entitled to gratuity in terms of the scale mentioned therein. It was held that the Act is not applicable only to the Central Government or State Governments in terms of definition of an "employee" under Section 2 (e) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the provisions of the Act.
6. The appellant relies upon Section 3 of the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act.
7. On the other hand, the learned Counsel for the Respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities..."
x x x x x
10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified local bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply....
11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e. the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under:
"14. Act to override other enactments, etc. The provisions of this Act or any Rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."
12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of gratuity will be inapplicable in respect of the employees of the local bodies.
13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi. The said judgment is in the context of CCS (Pension) Rules, 1972 which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.
14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority."
14. The notification dated 08.01.1982, referred to above, had been issued in terms of Section 1(3)(c) of the P.G. Act, 1972 whereunder the Central Government specified local bodies in which ten or more persons are employed or were employed, on any day preceding twelve months, as a class of the establishment to which the Act shall apply. The notification dated 08.01.1982 reads as under:-
"New Delhi, the 8th January, 1982 NOTIFICATION S.O. No. 239....-In exercise of the powers conferred by Clause (c) of Sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified 'local bodies' in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette.
Sd/.
(R.K.A. Subrahmanya) Additional Secretary (F. No. S-70020/16/77-FPG)"
15. The judgment in the case of Nagar Ayukt Nagar Nigam, Kanpur Vs. Mujib Ullah Khan & Anr. has been followed in a recent judgment of this Court in Nagar Nigam, Gorakhpur through Nagar Ayukt Vs. Suresh Pandey & two Ors.3 wherein the relevant statutory provisions and the case law on the subject has been considered in detail.
16. The contention of the learned counsel for the petitioner with regard to the point that the workmen concerned could not opt for better terms of gratuity as per the terms of the statute as well as those of the contract, was specifically considered by this Court in the earlier round of litigation which was decided by the judgment dated 04.04.2011 in Writ-C No.41977 of 2005 (and connected matters) and the said argument was repelled by stating that in terms of the orders passed by the Controlling Authority since only difference in the amount of gratuity had been directed to be paid to the respondent-workmen so as to give benefit of only one scheme and not both, there was no reason to interfere with the orders impugned. The judgment also clarified that the claim of the workmen having been made under the P.G. Act, 1972 shall be confined to the benefit admissible therein and if payment of gratuity has been made under the rules framed by the municipal corporation, such amount would be taken into consideration.
17. The judgment dated 04.04.2011 being inter partes and the same having not been put to challenge, the said judgment has attained finality and the petitioner cannot be allowed to re-agitate the same grounds again.
18. The order dated 04.02.2012 which is sought to be challenged in the present bunch of petitions having been passed in pursuance of the observations made in the judgment dated 04.04.2011 passed in Writ-C No.41977 of 2005 (and connected matters), the same cannot be faulted with.
19. Counsel appearing for the petitioner has not been able to dispute the legal proposition with regard to the applicability of the provisions of the P.G. Act, 1972 to municipal corporations, including the petitioner-Nagar Nigam.
20. No other ground was raised by the counsel for the petitioner.
21. The writ petitions lack merit and are accordingly dismissed.
Order Date :- 13.11.2019 Shahroz (Dr. Y.K. Srivastava,J.)