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2019 Supreme(All) 2550
IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Nagar Nigam Gorakhpur Thru Nagar Ayukt – Petitioner
Versus
Lal Bahadur Singh and Others – Respondents
Writ C No. 64093, 64266, 64267, 64268, 64269, 64271, 64270, 64273, 64272, 64095 of 2010, 14867, 14866, 16325, 16324, 16321, 16318, 14872, 14871, 14869, 16539, 16541, 16542, 16545, 16546, 16549, 16550, 16538, 16536, 16533, 16531, 16528, 16342, 16337, 16334, 16333, 16331, 16330, 16328, 16551, 16553, 16554, 16677, 17263 of 2011, 29821, 29822, 29824, 29825, 29827, 29828, 29830, 29833 of 2014
Decided On : 29-08-2019
Advocate Appeared:
For the Petitioner: Sanjay Kumar Tripathi
For the Respondent: C.S.C., Gopal Narain, Shyam Narain, Sudhanshu Narain
Headnote:
U.P. Municipal Corporations Act, 1959 – Section 458 (1)(f) – Payment of Gratuity Act, 1972 – Controlling Authority, Payment of Gratuity Act – Gratuity to Employees Issue – Whether the Nagar Mahapalika Gorakhpur “Akendriyat Sevanivratti Labh Viniyam, framed under Section 458 (1)(f) of the U.P. Municipal Corporations Act would prevail in the matter of payment of gratuity to employees of the Nagar Mahapalika, Gorakhpur over the provisions of the Payment of Gratuity Act –
Facts of the Case:
Respondent no. 1 (for short the 'Employee') claimed that he was entitled to payment of gratuity under the Act that would reckon to a figure of Rs. 1,31,974/; instead, he had been paid gratuity under the Regulations, in the sum of Rs. 65,175/. He, therefore, claimed the difference between his entitlement under the Act and the sum paid to him by the petitioner, Nagar Nigam Gorakhpur (for short, the 'Employer') on that count under the Regulations, together with interest @ 12% per annum. The claim of the petitioner to gratuity aforesaid was registered on the file of the Controlling Authority, Payment of Gratuity Act as PG Case No. 56 of 2006. The aforesaid claim was made through an application dated 31.07.2006
Finding of the Court:
Plea has been taken for the first time before this Court in paragraph 20 of the writ petition, but not before the two Authorities below – Prima facie from the record, it is not apparent that House Rent Allowance or City Compensatory Allowance has been added to the wages last drawn by the Authorities, while calculating gratuity payable to the employee – The issue, therefore, is a pure question of fact which cannot be permitted to be raised for the first time before this Court in a writ petition – This Court may record here that the same position on facts and the state of pleadings holds true for the other employees, in the connected writ petitions – In the above premises, this Court does not find any good ground to interfere with the impugned orders –
Key Points: - The Act applies to employees of a Nagar Nigam as a local body under notification issued under the Act, and not by exemption (!) (!) (!) (!) (!) (!) . - The Act overrides conflicting Regulations framed by the employer under Section 548(1)(f) of the Act (!) (!) (!) (!) (!) (!) . - The issue of whether allowances form part of wages for gratuity calculation is a factual question that cannot be raised for the first time before the Court (!) (!) (!) .
What is the applicability of the Payment of Gratuity Act to employees of a Nagar Nigam governed by the U.P. Municipal Corporations Act?
What are the rights of employees to claim gratuity under the Act versus the Regulations framed by the employer?
Does the inclusion of House Rent Allowance and City Compensatory Allowance in last wages affect gratuity calculation under the Act?
JUDGMENT :
1. Heard Sri Sanjay Kumar Tripathi, learned counsel for the petitioner in the present writ petition and in connected matters and Sri Sudhanshu Narain, learned counsel appearing on behalf of respondent-employee No. 1 here, and on behalf of each of the respondent-employees in connected matters. Learned Standing Counsel has been heard on behalf of respondent Nos. 2 and 3 here and, likewise, on behalf of the State-respondents in the connected writ petitions.
2. The question involved in the present writ petition as well as all other connected matters is whether the Nagar Mahapalika Gorakhpur “Akendriyat – Sevanivratti Labh Viniyam, 1990” framed under Section 458 (1)(f) of the U.P. Municipal Corporations Act, 1959 would prevail in the matter of payment of gratuity to employees of the Nagar Mahapalika, Gorakhpur over the provisions of the Payment of Gratuity Act, 1972?
3. Respondent No. 1, Lal Bahadur Singh was appointed with the Nagar Nigam Gorakhpur on 27.03.1973, as a Safai Supervisor. He retired from the said post upon attaining the age of superannuation on 31.03.2006, completing 33 years of service. He retired from the post of a Safai Supervisor. The respondent was paid gratuity in the sum of Rs. 66,175/, in accordance with the provisions of Nagar Mahapalika, Gorakhpur “Akendriyat Seva Labh Viniyam 1990” (for short, the 'Regulations'). Respondent no. 1 (for short the 'Employee') claimed that he was entitled to payment of gratuity under the Act that would reckon to a figure of Rs. 1,31,974/; instead, he had been paid gratuity under the Regulations, in the sum of Rs. 65,175/. He, therefore, claimed the difference between his entitlement under the Act and the sum paid to him by the petitioner, Nagar Nigam Gorakhpur (for short, the 'Employer') on that count under the Regulations, together with interest @ 12% per annum. The claim of the petitioner to gratuity aforesaid was registered on the file of the Controlling Authority, Payment of Gratuity Act as PG Case No. 56 of 2006. The aforesaid claim was made through an application dated 31.07.2006.
4. The Employers filed written statement, dated 31.03.2007 before the Controlling Authority, taking a case that the Employee had been paid his gratuity in accordance with his entitlement, of course, under the Regulations. It was further urged that the said payment of gratuity falls within the definition of a final settlement, and, as such, no claim for payment of gratuity before the Authority under the Act, is maintainable. It was specifically repudiated by the Employers that gratuity can be claimed by the Employee, in the sum of Rs. 1,31,974/calculated in terms of the Act. They said that the Employee's entitlement to gratuity is governed by the Regulation, and not the Act.
5. The Controlling Authority by an order, dated 06.02.2008 allowed PG Case No. 56 brought by the employee, and ordered the arrears of gratuity, being a sum of Rs. 66,799.00 with effect from 01.03.2006, to be paid to the employee, alongwith simple interest @ 8% per annum. A sum of Rs. 200/- was awarded in costs. The Employers aggrieved by the order of the Controlling Authority, dated 06.02.2008, filed Civil Misc. Writ Petition No. 23800 before this Court. The aforesaid writ petition was summarily dismissed on 17.03.2009, on ground of there being an equally efficacious alternative remedy available by way of an appeal under the Act, to the Appellate Authority. The Employers, therefore, filed an appeal from the order of the Controlling Authority, dated 06.02.2008, on 19.05.2009, under Section 7(7) of the Act. The aforesaid appeal was registered on the file of the Appellate Authority under the Act, as Appeal No. 1 of 2010. The Employer filed an objection/reply on 22.03.2010, in the appeal last mentioned, carried to the Appellate Authority by the Employee. The Appellate Authority, vide an order dated 24.07.2010, procee
