# Dr. Ashok Kumar Tomar v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Writ-C No. 7730 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ashok-kumar-tomar-v-state-of-u-p-ors-50230
- **Pages:** 6

## Headnote

(A) Civil Law - Constitution of India, 1950
- Article - 226 - Payment of Gratuity Act,
1972 - Sections 1(3)(c) & 2(e) - Writ
Petition - for quashing impugned orders by
which authorities are denying Gratuity -
petitioner was appointed as lecturer in an aided
educational institution - thereafter, he applied
and appointed as Principal - when he reached
age of 50 years in 2009, he opted for voluntary
retirement after completing 27 years, 9 months
of service - all the voluntary retirement dues
was accepted by the authorities and paid accept
Gratuity - Petitioner filed PG Case before the
Controlling Authority under PG Act, 1972 -
allowed - St. Govt. challenged in appeal -
appeal allowed - petitioner challenged the
appellate court order including denied order of
authorities - court finds that, in view of
Amending Act, No. 47 of 2009 it cannot be said
that the petitioner would fall under the
exceptional or exclusion clause of the definition
of 'employee' - and government order or
regulation - 11 would not restrain a teacher
from seeking voluntary retirement at the age of
58 year or prior thereto - held, petitioner is fully
covered by the definition of employee so as to
entitle him to get gratuity - writ petition allowed
- directions issued for payment of gratuity with
@ 9% interest per annum.

Writ Petition Allowed. (E-11)

List of Cases cited:

## Text

1612 INDIAN LAW REPORTS ALLAHABAD SERIES
compromises between the prosecutrix and
the accused to get married, suggest or
mandate mediation between the accused
and
the
survivor, or
any
form
of
compromise as it is beyond their powers
and jurisdiction;

(f)
Sensitivity
should
be
displayed at all times by judges, who
should
ensure
that
there
is
no
traumatization of the prosecutrix, during
the proceedings, or anything said during the
arguments, and

(g) Judges especially should not
use any words, spoken or written, that
would undermine or shake the confidence
of
the
survivor
in
the
fairness
or
impartiality of the court."

 (Emphasis by Court)

9. This Court had occasions to consider
in Pravin Kumar Singh and others v. State
of U.P. Thru. Prin. Secy. Home Deptt. and
another, 2023 SCC OnLine All 131, the
issue whether prosecutions under the Act of
2012 can be quashed on an application under
Section 482 Cr.P.C founded on a compromise.
In Pravin Kumar Singh (supra) it was held
by Hon?ble Ajai Kumar Srivastava-I, J. thus:

"14. So far as the question of
quashing of criminal proceeding of S. T.
No.20 of 2014 "State vs. Pravin Kumar Singh
and others" arising out of Case Crime No.345
of 2013, under Sections 376, 363, 366, 504,
506 1.P.C. and 3/4 POCSO Act, is concerned,
Hon'ble Supreme Court in Narinder Singh and
others vs. State of Punjab and another reported
in (2014) 6 SCC 466, has specifically held that
the matter under Section 376 I.P.C. is also
such an offence, which, though committed in
respect of a particular victim, cannot be termed
to be a private dispute between the parties. It
has serious adverse societal effect. Therefore,
any proceeding on the basis of alleged
compromise of the accused vis-a-vis the
victim cannot be quashed. Hon'ble Apex Court
in State of Madhya Pradesh vs. Madanlal
reported in (2015) 7 SCC 681 while repelling
the acquittal on the basis of compromise in the
matter pertaining to Sections 376 read with
511 I.P.C., has placed reliance upon principles
laid down by three-Judge Bench in Shimbhu
vs. State of Haryana reported in (2014) 13
SCC 318."

10. It has been held by the Punjab and
Haryana High Court in similar terms in
Nardeep Singh Cheema @ Navdeep
Singh Cheema v. State of Punjab and
others, CRM-M-2270-2020, decided on
07.09.2022. I also had occasion to consider
this issue in Om Prakash v. State of U.P.
and another, 2023 SCC OnLine All 93,
where it was held that the proceedings
under Section 376 I.P.C. and POCSO Act,
cannot be quashed on the basis of a
compromise between the accused and the
victim.

11. On the conspectus of above facts, I
do not find any good ground to quash
proceedings of the ongoing trial.

12. This application is, accordingly,
rejected.
----------
(2023) 5 ILRA 1612
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 7730 of 2016

Dr. Ashok Kumar Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
5 All. Dr. Ashok Kumar Tomar Vs. State of U.P. & Ors.
1613
Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Constitution of India, 1950
- Article - 226 - Payment of Gratuity Act,
1972 - Sections 1(3)(c) & 2(e) - Writ
Petition - for quashing impugned orders by
which authorities are denying Gratuity -
petitioner was appointed as lecturer in an aided
educational institution - thereafter, he applied
and appointed as Principal - when he reached
age of 50 years in 2009, he opted for voluntary
retirement after completing 27 years, 9 months
of service - all the voluntary retirement dues
was accepted by the authorities and paid accept
Gratuity - Petitioner filed PG Case before the
Controlling Authority under PG Act, 1972 -
allowed - St. Govt. challenged in appeal -
appeal allowed - petitioner challenged the
appellate court order including denied order of
authorities - court finds that, in view of
Amending Act, No. 47 of 2009 it cannot be said
that the petitioner would fall under the
exceptional or exclusion clause of the definition
of 'employee' - and government order or
regulation - 11 would not restrain a teacher
from seeking voluntary retirement at the age of
58 year or prior thereto - held, petitioner is fully
covered by the definition of employee so as to
entitle him to get gratuity - writ petition allowed
- directions issued for payment of gratuity with
@ 9% interest per annum.

Writ Petition Allowed. (E-11)

List of Cases cited:

1. Birla Institute of Technology Vs St. of
Jharkhand & ors. (2019 vol. 4 SCC 513),

2. Ahmedabad Private Primary Teachers' Assc.
Vs Administrative Officer (2004 vol. 1 SCC 755),

3. Independent Schools' Federation of India Vs
U.O.I. & ors. (2022 SCC Online SC 1113),

(Delivered by Hon'ble Kshitij Shailendra, J. )

1. Heard Shri Siddharth Khare,
learned counsel for the petitioner and
learned Standing Counsel for the Staterespondents.

2. The petitioner was appointed on the
post of lecturer in 1982 in an aided
educational institution. Thereafter, pursuant
to the process issued for appointment on
the post of Principal, the petitioner applied
and was appointed on the post of Principal
on 23.10.2002.

3. The date of birth of the petitioner
being 5.11.1959, when he reached age of
50 years in 2009, he opted for voluntary
retirement after completing the length of
service of 27 years, 9 months and 28 days.
The voluntary retirement of the petitioner
was accepted by the authorities.

4. While the retirement dues of the
petitioner were not being paid, petitioner
filed Writ-A No.58376 of 2010, which was
disposed of by this Court vide order dated
22.9.2010, whereby the Joint Director of
Education,
Saharanpur
Region
Saharanpur was directed to consider the
grievance of the petitioner with regard to
non-payment of his dues. Pursuant to the
order dated 22.9.2010, passed by this
Court, the Joint Director of Education,
Saharanpur,
passed
an
order
dated
9.12.2010, whereby the payment of
pension to the petitioner was granted,
however
the
gratuity
was
refused.
Thereafter, the petitioner filed filed P.G.
Case No.2 of 2012 before the Controlling
Authority under the Payment of Gratuity
Act, 1972 (herein after referred to as 'the
Act, 1972'). The said authority vide order
dated 6.9.2013 directed the respondents
to pay a sum of Rs.6,46,041, as the
amount of gratuity to the petitioner.
1614 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Challenging the order dated
6.9.2013, the State filed Writ-C No.5108 of
2014, which was dismissed by this Court
vide order dated 27.1.2014 on the ground
of availability of alternative remedy by
filing statutory appeal.

6. Thereafter, the respondents filed
P.G.A. Appeal No.2 of 2014 before the
appellate authority under the Act, 1972,
which has been allowed by the impugned
order dated 3.12.2015.

7. This petition was filed in the year
2016 and during the pendency of the writ
petition, an affidavit was filed on behalf of
respondents annexing therewith another
order dated 11.9.2020, whereby the Deputy
Director
of
Education
(Intermediate),
Saharanpur Division Saharanpur again
denied gratuity to the petitioner by placing
reliance upon Government Order dated
29.8.1981. The petitioner by means of an
amendment application challenged the
order dated 11.9.2020. The amendment
application was allowed and, therefore, the
said order is also under challenge.

8. Shri Siddharth Khare, learned
counsel for the petitioner, submits that the
order impugned is based upon wrongful
interpretation of Section 2 (e) of the 1972
Act and authority has taken a wrong view
that the petitioner falls within the exclusion
clause of the definition 'employee', as he is
an employee of the State Government. Shri
Khare further submits that another ground
taken for denying the gratuity to the
petitioner is applicability of Government
Order dated 29.8.1981, which, in fact, does
not apply in the case of the petitioner. He
further submits that even the subsequent
order dated 11.9.2020 is based upon same
proposition of the applicability of the
Government Order dated 29.8.1981.

9. Shri Khare has referred to the
definition of 'employee' as contained under
Section 2 (e) of the Act, 1972, which reads
as follows:

"(e)
"employee"
means
any
person
(other
than
an
apprentice)
employed on wages, in any establishment,
factory, mine, oilfield, plantation, port,
railway company or shop to do any skilled,
semi-skilled,
or
unskilled,
manual,
supervisory, technical or clerical work,
whether the terms of such employment are
express or implied, and whether or not
such person is employed in a managerial or
administrative capacity, but does not
include any such person who holds a post
under the Central Government or a State
Government and is governed by any other
Act or by any rules providing for payment
of gratuity."

10. He further submits that as per
Section 1 (3)(c) of the Act, the provisions
of the Act shall be applicable to such other
establishments as the Central Government
may by notification specify in this behalf.
Shri Khare has placed reliance upon the
notification F.No. S-42013/1/95-SS dated
3.4.1997, which reads as follows:

"F.No.
S-42013/1/95-SS
dated
April 3, 1997.--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 specifies the educational institution in
which ten or more persons are employed or
were employed on any day preceding 12
months as a class of establishments to which
the said Act shall apply with effect from the
date of publication of this notification:

Provided that nothing contained
in
this
notification
shall
affect
the
5 All. Dr. Ashok Kumar Tomar Vs. State of U.P. & Ors.
1615
operation of the notification of the Ministry
of Labour, S.O. No.239, dated 8th January,
1982 (See above)."

11. He, therefore, submits that since
educational institutions employing 10 or
more
persons
are
covered
by
the
notification issued in exercise of powers
under Section 1 (3)(c) of the Act, 1972, the
ground taken for rejecting the claim of the
petitioner by placing reliance upon Section
2 (e) becomes unsustainable. Shri Khare
further points out that, later on, in the year
2009, the definition of 'employee', as
contained in Section 2 (e) of the Act, 1972
was amended by Act No.47 of 2009 with
retrospective effect from 3.4.1997, in the
light of the aforesaid notification dated
3.4.1997.

12. In this regard, he has placed
reliance upon the decision of Supreme
Court in Birla Institute of Technology vs.
State of Jharkhand and others, (2019) 4 SCC
513, wherein the Supreme Court dealt with a
contrary decision taken in the case of
Ahmedabad Private Primary Teachers' Assn.
vs. Administrative Officer, (2004) 1 SCC 755.
However, taking into consideration the
retrospective effect of amendment made by
amending Act No.47 of 2009, the Supreme
Court held that reliance could not be placed
upon the decision of Ahmedabad Private
Primary Teachers' Assn. (supra). The Supreme
Court
also
observed
that
though
the
constitutional validity of amending Act No.47
of 2009 was challenged before the Supreme
Court in a writ petition, mere pendency of writ
petition would not affect the constitutionality
of the amending Act nor would it affect the
rights of the parties concerned, unless the
statute is declared ultra vires.

13. Shri Khare further argues that
insofar as the constitutional validity of
amending Act No.47 of 2009 is concerned,
the same has been upheld by the Supreme
Court in its subsequent decision dated
29.8.2022
passed
in
the
case
of
Independent Schools' Federation of India
(Regd.) vs. Union of India and another,
2022 SCC OnLine SC 1113.

14. Shri Khare has further placed
reliance upon a decision of this Court in the
Case of Sarnam Singh vs. Smt.Pushpa
Devi and others [1986 UPLBEC 348], in
which this Court has held that Committee
of
Management
of
an
educational
institution
is
not
an
agency
or
instrumentality of the State Government
nor does a teacher hold a post under the
Government.

15. In view of the above, the
contention of learned counsel for the
petitioner is that the first ground taken in
the order impugned that the petitioner
would fall in the exceptional clause of
Section 2 (e) of the Act, 1972 and,
therefore, not entitled to get payment of
gratuity, becomes unsustainable.

16. Insofar as the second ground
contained in the order impugned that is
applicability of the Government Order
dated 29.8.1991 is concerned, Shri Khare
Submits that the said Government Order
deals with a situation where the teacher
concerned gives an option for retirement at
the age of 58 years. He, therefore, submits
that
the
Government Order
has
no
application in the case of the petitioner nor
does it affect those matters where a
Principal or a Teacher opts for voluntary
retirement at any age.

17. Respondents have filed counter
affidavit in which a stand has been taken
that the retirement age of the teachers has
been extended from 60 years to 62 years
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
and since the petitioner opted for 60 years
as age of retirement in place of 58 years,
he would not be entitled for gratuity.

18. Learned Standing Counsel has
vehemently argued that petitioner is
estopped from claiming payment of
gratuity as despite giving an option of
retirement at the age of 60 years, he took
voluntary retirement at the age of 50
years. Learned Standing Counsel, with
reference to paragraph-17 of the counter
affidavit, has argued that the petitioner
could not abandon the services prior to 60
years.

19. After hearing learned counsel
for the parties, I find that in view of
amending Act No.47 of 2009, which
came
into
force
retrospectively
on
3.4.1997 and in view of the judgment of
Supreme Court in Birla Institute of
Technology (supra) and Independent
Schools' Federation of India (supra), it
cannot be said that the petitioner would
fall under the exceptional or exclusion
clause of the definition 'employee'. I find
that petitioner is fully covered by the
definition of employee so as to entitle
him to get gratuity. Insofar as the
applicability of Government Order dated
29.8.1981 is concerned, I do not find that
it is a restriction in claiming voluntary
retirement by a teacher concerned. The
said Government Order only provides for
submitting option for retirement either at
the age of 58 years or 60 years and has
nothing to do with the aspect of voluntary
retirement. I further find from perusal of
the said Government Order that it is
accompanied by Regulations, Clause-4
whereof reads as follows:

"४. इस मनयिावली की मवज्ञप्ति की
मतमथ के उपराुंत मनयुप्ति अध्यापकोुं द्वारा
स्थायीकरण की मतमथ के िो वर्षों के अुंिर ५८
वर्षष के आयु पर सेवामनवृत होने के पक्ष िें
अपना मवकल्प न िेने पर यह मनयिावली उस
पर लागू नहीुं होगी . मवकल्प का एक बार
प्रयोग कर लेने पर वह अुंमति सिझा जायेगा."

20. A perusal of aforesaid Clause-4
shows that the regulations will not apply
for those teachers, who did not give option
for retirement at the age of 58 years.
Regulation-11
deals
with
voluntary
retirement aspect and I do not find
anything, which would restrain a teacher
from seeking voluntary retirement at the
age of 58 years or prior thereto.

21. From overall interpretation of
the Government Order and regulations
forming part thereof, I find that the
reasons assigned for denying gratuity in
both the orders impugned on this score
are unsustainable.

22.

Consequently,
the
writ
petition is allowed. The impugned
orders dated 3.12.2015 and 11.9.2020
are hereby quashed by issuing a Writ
of Certiorari.

23. A Writ of Mandamus is issued
to the respondents 3, 4 and 6 to compute
the amount of gratuity payable to the
petitioner after hearing the petitioner and
release the same in his favour within a
period of two months from the date of
production of certified copy of this
order. The petitioner shall also be
entitled for interest @ 9% per annum on
the amount of gratuity from the date of
his retirement till the date of actual
payment. This amount shall be in
addition to the amount of pension, which
the petitioner is already getting.
----------
5 All. Mohd. Ishaq Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
1617
(2023) 5 ILRA 1617
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 59655 of 2011

Mohd. Ishaq ...Petitioner
Versus
A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi
& Anr. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Arvind Srivastava, Sri Atul Dayal, Sri Pushkar
Srivastava

Civil
Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction)
Rules,
1972-Rule
18(2)
-
Provisions of Rule 18 are directory and not
mandatory. (Para 23-26)

The
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 -Sec 21(1) (a)-No perversity
about the findings on the question of bona
fide need-The various shops that have
been referred to by the tenant as ones
available to the landlord, either do not
belong
to
the
landlord
or
are
not
available-In a case where the tenant does
not search for alternative accommodation
after landlord initiates proceedings for
release, the answer to the issue of
comparative hardship invariably ought to
be against the tenant-A tenant holding for
rented premises a long period of time on
an absurdly low rent, ought certainly to be
held disentitled, vis-à-vis the landlord,
when
determining
the
issue
of
comparative hardship. (Para 41, 43 & 44)

Petition dismissed. (E-15)

List of Cases cited:
1. Heera Lal Vs IXth A.D.J., Kanpur & ors.,
(2005) 61 ALR 488 (All)

2. Ammal Chandra Dutt Vs Second A.D.J. & ors.,
(1989) 1 SCC 1

3. Sarju Prasad Vs VIIIth A.D.J., Faizabad &
ors., 2007 (2) AWC 1068 (L.B.)

4. Arvind Kumar Mishra Vs Jitendra Kumar
Gupta & ors., 2016 (1) A.R.C. 634.

5. Sheo Shanker Das Vs Special Judge & ors,
2006 (3) ALJ (NOC) 467 (All)

6. Ashok Kumar & ors.Vs Sita Ram, (2001) 4
SCC 478

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a tenant's writ petition
arising out of a judgment and order passed
by Mr. Vigyanram Mishra, the then
Additional District Judge/ Special Judge,
SC/ST Act, Jhansi in Rent Control Appeal
No.6 of 2009, allowing the appeal, setting
aside the judgment and order dated
07.05.2009
made
by
the
Prescribed
Authority and granting the landlord's
application for release under Section
21(1)(a) of U.P. Act No.13 of 1972.

2. An application for release was
made on behalf of Kailash Babu Agrawal
seeking release of Shop No.13, situate at
Mohalla Nanjhai Bazar, Jhansi against the
tenant, Mohd. Ishaq on the ground of his
bona fide need. The application was made
under Section 21(1)(a) of U.P. Act No.13 of
1972 (for short, 'the Act') with a case that
Shop No.13, Nanjhai Bazar, Jhansi (for
short, 'the demised shop') was purchased by
Kailash Babu Agrawal (hereinafter referred
to as 'the landlord') on 11.01.1993 for the
purpose of his own need. It is the landlord's
case that he neither has a house to live or a
shop to carry on business of his own. The