# Nagar Ayukt, Nagar Nigam, Kanpur v. Brij Kishore Bajpai & Anr 400 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 3 ILRA 399 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-02 - **Bench:** Pankaj Mithal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-ayukt-nagar-nigam-kanpur-v-brij-kishore-bajpai-anr-400-indian-law-reports-43542 - **Pages:** 4 ## Headnote Payment of Gratuity Act, 1972 or under the alternative Regulations framed by the State Government. Held, where there is no notification under Section 5 of the Act exempting the Nagar Nigam from its operation, the employees are entitled to gratuity under the statutory provisions of the Act. The burden lies on the employer to produce a valid exemption notification and establish that alternative regulations provide more beneficial gratuity terms. Writ Petition Dismissed List of Cases cited: ## Text 3 All. Nagar Ayukt, Nagar Nigam, Kanpur Vs Brij Kishore Bajpai & Anr. 399 of ill-repute and of furious nature then why firearm licence was issued to him. It has nowhere been recorded that prior to the present incident, the petitioner has ever misused his firearm or any criminal case is pending against him. Merely on the basis of police report, that too without based on any concrete material, in my view, an opinion could not be formed by the Licensing Authority for cancellation of the petitioner's firearm licence. Once the statute confers the power upon the authority to cancel or suspend the licence on the basis of police report or otherwise, the authority empowered under the statute ought to apply his own mind independently looking into the contents of the police report, reply of the licencee and other attending circumstances. Passing of an order treating the police report sacrosanct is neither desirable nor intention of the Legislature. Before the licensing authority, the police report is to be treated on the one side and reply of the licensee on another side and thereafter, after perusing the record and other attending circumstances opinion for cancellation suspension should be formed independently which part is lacking here as there was no concrete material before the licencing authority to arrive at that it is the petitioner who has been instrumental in breach of public peace and safety. 17. Learned standing counsel appearing for the State respondents could not show, either from the perusal of the impugned order passed by the District Magistrate or from the order passed by the learned Commissioner, any material substantiating the allegations of misuse of fire arm by opening fire in the public resulting in breach of public peace or public safety. The only basis is the police report, which has been denied by the petitioner, except this there is no material, therefore, in my considered opinion, the Licensing Authority has erred in cancelling the petitioner's fire arm licence and misused his power for cancellation of firearms licence vested in him. The appellate authority too has committed the same error by not considering the grounds of appeal and dismissing the same on the reasons recorded by the District Magistrate without there being any application of mind. Therefore, impugned orders passed by the District Magistrate as well as Commissioner cannot be sustained in the eye of law. 18. The writ petition succeeds and is allowed. The order dated 5.2.2015 passed by the District Magistrate, Shamli in Case No. 7/2012-13 (State vs. Shahid) as well as the order dated 28.5.2015 passed by the Commissioner, Saharanpur Division, Saharanpur in appeal No. 02 of 2015 C2015090000228 (Shahid vs. State) are hereby quashed. The District Magistrate, Shamli is directed to take follow up action within a shortest period of two weeks in accordance with law from the date of receipt of certified copy of the order of this Court. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 02.02.2016 BEFORE THE HON'BLE PANKAJ MITHAL, J. Writ C No.- 37586 of 2012 Nagar Ayukt, Nagar Nigam, Kanpur ...Petitioner Versus Brij Kishore Bajpai & Anr ...Respondents 400 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Petitioner: Sri Y.S. Sachan, Sri Anil Tiwari Counsel for the Respondents: Sri C.S.C., Smt. Fashiha Fatma Whether the employees of Nagar Nigam (Municipal Corporation) are entitled to gratuity under the Payment of Gratuity Act, 1972 or under the alternative Regulations framed by the State Government. Held, where there is no notification under Section 5 of the Act exempting the Nagar Nigam from its operation, the employees are entitled to gratuity under the statutory provisions of the Act. The burden lies on the employer to produce a valid exemption notification and establish that alternative regulations provide more beneficial gratuity terms. Writ Petition Dismissed List of Cases cited: (Delivered by Hon'ble Pankaj Mithal, J.) 1. Heard Sri Y.S. Sachan, learned counsel for the petitioner and perused the pleadings exchanged between the parties. 2. The order dated 22.5.2012 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter Act only) is under challenge in this writ petition. 3. The respondent no.1 Brij Kishore was an employee of the Nagar Nigam, Kanpur. He worked there from 18.5.1956 to 30.6.1995 and retired after putting in total service of 39 years one month. At time of his retirement he was drawing salary of Rs. 3,533/- including D.A. etc. He claimed gratuity of Rs. 69,090/- on his retirement but the Nagar Nigam paid Rs. 51,035/- only. Therefore for the balance amount of Rs. 18,055/ he approached the Controlling Authority under the Act. 4. The matter was contested by the Nagar Nigam but after filing reply, it failed to appear before the Controlling Authority. Thus, the Controlling Authority by the impugned order on the basis of the pleadings of the parties and the evidence adduced by respondent no. 1 ordered for payment of the balance gratuity of Rs. 18,055/- to him with 6% interest from the date of retirement till its payment. 5. In assailing the above order, the submission of Sri Sachan, learned counsel for the petitioner is that the payment of gratuity to the employees of the Nagar Nigam is governed by the provisions of Retiral Dues and General Provident fund and Regulations, 1962 as amended in 1988. The said Rules are more beneficial than the payment of gratuity under the Act. Therefore by necessary implication the Nagar Nigam gets exempted vide Section 5 of the Act from its applicability and its employees are entitled to gratuity only according to the Regulations. 3 All. Nagar Ayukt, Nagar Nigam, Kanpur Vs Brij Kishore Bajpai & Anr. 401 6. In support he has placed reliance upon the decision of this Court dated 29.8.2008 in Nagar Palika Parishad Muzaffarnagar Vs. Controlling Authority under Payment of Gratuity Act 1972 Saharanpur 2008-Laws (All)-8-92:2008- ESC-5-3105. 7. In the aforesaid case before this Court, the question which had cropped up was whether the gratuity would be payable to the employees of the non centralized services of Nagar Palika as per the provisions of the Act or as per the Regulations framed by the State Government. 8. The learned Single Judge by a detailed judgment held that the employees of the non centralized services of Nagar Mahapalika are entitled to gratuity as per the Regulations framed by the State Government and not under the payment of Gratuity Act, 1972. 9. The aforesaid decision was in connection with the employees of the non-centralized service of the Nagar Palika and not in respect to the employees of the Nagar Nigam and as such would not apply in the present case. 10. The payment of gratuity in general is governed by the provisions of the Act and it has the overriding effect over all previous enactments by virtue of Section 14 of the Act, unless the establishment is exempted by the State Government under Section 5 of the Act. 11. In other words, all establishments as provided vide Section 1 of the Act including Nagar Nigam are covered the provisions of the Act unless exempted. 12. Section 5 of the Act lays down the power of exemption. It provides if the appropriate government is satisfied that the employees of the establishment are receiving better benefits than those under the Act may by a notification exempt such an establishment from the operation of the Act. This means for exempting an establishment from the operation of the said Act there has to be a notification by the appropriate Government and that it should be satisfied that the employees were in receipt of benefits more beneficial than under the Act. 13. The petitioner has not pleaded or brought on record any notification issued by the appropriate government issued under Section 5 of the Act exempting Nagar Nigam from the operation of the Act and at the same time the exact benefit permissible under the Regulations vis-a-vis those under the Act to establish that benefits under the Regulations were much more than what the petitioner would receive under the Act. 14. In view of the aforesaid facts and circumstances, the employees of the Nagar Nigam are not outside the purview of the Act and are held entitle to gratuity under it. 15. Apart from the above, the dispute is only for a petty amount of Rs. 18,055/- for which the Court does not feel inclined to interfere in exercise discretionary jurisdiction. 402 INDIAN LAW REPORTS ALLAHABAD SERIES 16. The writ petition as such is held to be devoid of merit and is dismissed. ---------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.03.2016 BEFORE THE HON'BLE MRS. VIJAY LAKSHMI, J. Criminal Revision No. 1104 of 2012 & Connected With Other Cases Lekhraj Maithil ...Revisionist Versus State of U.P. & Ors. ...Respondents Counsel for the Revisionist: Sri H.M.B. Sinha, Smt. Archna Singh Counsel for the Respondents: Govt. Advocate, Sri M.K. Mishra, Sri Vishal Jaiswal Maintenance of Spouse and Children - Concurrent Jurisdiction with Family Court - Application under Section 127 Cr.P.C. - Validity of rejection and partial acceptance - Maintenance of major daughter under Section 125 Cr.P.C. read with Hindu Adoptions and Maintenance Act, 1956 - Right of major unmarried daughter to maintenance when dependent on father - Hindu Marriage Act, 1954 - Divorce decree - Application of law where personal law provisions supersede criminal procedure law regarding maintenance of major daughters. REVISION ALLOWED List of Cases cited: 1. Noor Saba Khatoon Vs. Mohammad Quasim, 1997 SCC (6) 233 2. Jagdish Jugtawat Vs. Manju Lata, 2002 CJ (SC) 432 3. Raj Kumari Awasthi Vs. State of U.P., 2008(3) ALJ 100 4. Amarendra Kumar Paul Vs. Maya Paul and Others, (2009) 8 SCC 359 (Delivered by Hon'ble Mrs. Vijay Lakshmi, J.) 1. Both these revisions, arising out of the same impugned judgment, were connected and both are being hereby decided by this common judgment.