# Nagar Palika Parishad & anr v. Controlling Authority & ors

- **Citation:** (2008) 3 ILRA 843
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-29
- **Case number:** Civil Misc. Writ Petition No. 55129 of 2006
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-palika-parishad-anr-v-controlling-authority-ors-41242
- **Pages:** 6

## Headnote

Municipalities Act 1916-Section 297Gratuity-claimed
by
employees
not
governed by centralized Services Rulesno exemption granted as per Rule 5 of
the Act-held-entitled for gratuity under
regulation framed by the Government
and not under Payment of Gratuity Act.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
844
Held: Para 18

Viewed as above, I find sufficient force
in the argument of the learned counsel
for the petitioner and it is held that the
contesting respondent is entitled to get
the gratuity as per the Regulations
framed by the State Government in this
regard and not under the Payment of
Gratuity Act. The writ petition succeeds
and is allowed and the impugned order is
quashed.
Case law discussed:
AIR 1999 SC 293; (2001) 3 SCC 71;.(1993) 2
SCC 144; (1977) 1 SCC 750; (2000) 4 SCC
406; AIR 1956 SC 614; 1987 UPTC 850; AIR
1999 SC 293.

## Text

3 All] Nagar Palika Parishad and another V. Controlling Authority and others
843
officer or by any officer authorised by
him in this behalf and further the offences
under Rules 57 and 70 are non-cognizable
offences, but at the same time since the
petitioner has also been challaned under
section 379/411 IPC, alongwith the
offences under Rules 57 and 70 of the
Rules 1963 and since the offences of both
the
categories
emanate
from
the
integrated
facts,
the
police
is
not
prevented from investigating the noncognizable
offences
along-with
cognizable
offences
as
cognizable
offences. In this connection we feel called
to revert to the contents of the F.I.R
lodged by the police constable on the
basis of the written report submitted by
the S.D.M. Zamania. In the F.I.R, the
police constable explicitly stated that the
accused person was engaged in illegal
excavation of sands and its sale without
there being any valid licence and acting
upon the report of the S.D.M. Zamania,
the police swung into action and initiated
criminal action of raiding the place and
lodging the F.I.R. Since the accused
person has been charged with offence
under section 379/411 IPC which are
cognizable offences, in the circumstances
we have no reason to take a view different
from the view taken by the Apex Court in
state of Orissa (supra) that the police was
authorised to investigate the cognizable
offence alongwith non-cognizable offence
irrespective of the fact who was the
author of the report lodged at the police
station regard being had to the provisions
of Rule 76 which envisages that the
officer referred to in Rule 66 may request
for the help of the local police for lawful
exercise of his powers under these rules
and the local police shall render all
possible assistance as may be necessary to
enable the officer to exercise the powers
under these rules. The view we are taking
in this matter, also finds reinforcement
from the decisions cited above.

15. The learned counsel for the
petitioner has not brought forth anything
cogent or convincing to manifest that no
cognizable offence is disclosed Prima
facie on the allegations contained in the
F.I.R. or that there was any statutory
restriction operating on the police to
investigate the case.

16. Having scanned the allegations
contained in the F.I.R. the Court is of the
view that the allegations in the F.I.R. do
disclose
commission
of
cognizable
offence and therefore no ground is made
out warranting interference by this Court.
The petition is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2008

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 55129 of 2006

Nagar Palika Parishad & anr ..Petitioners
Versus
Controlling Authority & ors. ...Respondents

Counsel for the Petitioners:
Sri. R.K. Awasthi

Counsel for the Respondents:
Sri. Vishnu Sahai
Sri. Bhupeshawar Dayal
S.C.

Municipalities Act 1916-Section 297Gratuity-claimed
by
employees
not
governed by centralized Services Rulesno exemption granted as per Rule 5 of
the Act-held-entitled for gratuity under
regulation framed by the Government
and not under Payment of Gratuity Act.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
844
Held: Para 18

Viewed as above, I find sufficient force
in the argument of the learned counsel
for the petitioner and it is held that the
contesting respondent is entitled to get
the gratuity as per the Regulations
framed by the State Government in this
regard and not under the Payment of
Gratuity Act. The writ petition succeeds
and is allowed and the impugned order is
quashed.
Case law discussed:
AIR 1999 SC 293; (2001) 3 SCC 71;.(1993) 2
SCC 144; (1977) 1 SCC 750; (2000) 4 SCC
406; AIR 1956 SC 614; 1987 UPTC 850; AIR
1999 SC 293.

(Delivered by Hon'ble Prakash Krishna, J.)

1. Raising a somewhat interesting
question the present writ petition has been
filed. The question involved in the present
petition is regarding the applicability of
Payment
of
Gratuity
Act,
1972
(hereinafter referred to as the Act) and the
U.P. Nagar Mahapalika Non Centralized
Services Retirement Benefit Regulations,
1984 (hereinafter referred to as the
Regulation) with respect to employees of
Nagar
Mahapalika
Non
Centralized
Services.

2. The facts of the case are not much
in dispute. Ram Saran Ruhela, the
respondent no.3, who was working with
the
petitioner
was
placed
under
suspension,.
charge-sheeted
and
his
services were terminated vide order dated
.8th of January, 1991. He was dismissed
by the order dated 8th of December, 1995.
The said order was modified by the
appellate authority and dismissal was
substituted by an adverse entry and
stoppage of two increments. The matter
came up before this Court in two writ
petitions being writ petition nos. 1998 of
1996 and 7140 of 1996. Both the writ
petitions were clubbed together and were
decided by a common judgement dated
15th of October, 2003. It was held by this
Court that the contesting respondent
herein is entitled for subsistence allownce
and in addition thereto 30 per cent of back
wages from the date of suspension to the
date of reinstatement. The, amounts were
directed to be paid within three months.
The necessary payments were made to the
respondent no.3 which is evident from the
receipt dated 27th February, 2004. In the
meantime, the respondent retired and he
filed an application before the Controlling
Authority under the Payment of Gratuity
Act, 1972 claiming gratuity for a total
period of service i.e. 40 years three
months and 11 days. The said proceeding
was contested on the ground that the
petitioner is not entitled for any gratuity
as he was removed from the services by
the order dated 18th February, 1995. It was
further stated that in view of the Rule 10,
the respondent no.3 is not entitled either
for gratuity or family pension. The
Controlling Authority by the order dated
7th October, 2005 directed the petitioner to
pay a sum of RS.61,347/- as gratuity with
interest etc. as per the Gratuity Act. The
said amount has also been paid. However,
an appeal being appeal NO.138 of 2005
was filed before the appellate authority
under the Act.

3. The Appellate Authority, U.P.,
under the Payment of Gratuity Act by the
impugned order dated 3rd of May, 2006
has allowed the appeal and directed that
the gratuity amount should be calculated
as per the provisions of the Act instead of
Regulation. Challenging the said order the
present writ petition has been filed.
3 All] Nagar Palika Parishad and another V. Controlling Authority and others
845

4. Shri R.K. Awasthi, the learned
counsel for the petitioner submits that the
provisions of the Act are not attracted.
The
Appellate
Authority
committed
illegality in ordering the calculation of the
gratuity amount as per the Regulation. He
submits that the Regulations having been
framed under the provisions of U.P.
Municipalities Act will be applicable to
the facts of the present case. Shri Vishnu
Sahai, learned counsel for the respondent
no.3, on the other hand, submits that the
provisions of the Act will be applicable
and has placed reliance upon a judgement
of
the
Apex
Court
in
Municipal
Corporation
Delhi
Vs.
Dharam
Prakash AIR 1999 SC 293.

5. A pristine question of law is
involved as to whether the provisions of
the Regulation will be attracted as
submitted by the learned counsel for the
petitioner or the gratuity shall be payable
as per the provisions of the Gratuity Act.

6.

Considered
the
respective
submissions of learned counsel for the
parties.

7. The Act applies to every factory,
mines, oilfields, plantations ports, railway
companies, shops or other establishments
or classes of establishments in which ten
or more persons are employed, or were
employed, on any date of the preceding
twelve
months,
as
the
Central
Government may, by notification, specify
in this behalf, as provided by section 1 of
the Act. The learned counsel for the
respondents submits that the petitioner is
an establishment and therefore, the
provisions of the Act shall apply ipso
facto. He submits that section 14 of the
Act provides that it will prevail over the
other enactments notwithstanding any
thing in consistence therewith contained
in any enactment other than the Act or in
any instrument or contract. Power to grant
exemption by the appropriate government
has been provided for by section 5 of the
Act. The crux of the argument is that
there being no exemption notification by
the State of U.P. in respect of non
centralized services of Nagar Mahapalika,
the Regulations shall not be applicable.

8. The Regulations have been
framed in exercise of power under sub
section (2) of section, 297 of the
Municipalities
Act,
1916
by
the
Governor. Section 297 of the U.P.
Municipalities Act empowers a Board to
make Regulations consistent with the
Municipalities Act in respect of matters
enumerated
therein
including
the
conditions of service, including period of
service of all servants of Board as also the
conditions under which gratuities or
compassionate allowances may be paid to
the surviving relatives of any such servant
whose death has been caused through the
execution of his duty vide clause (K) of
Section 297. Under sub section (2) of
section 297, the State Government has
been empowered to make Regulations
consistent with the provisions of the
Municipalities Act in respect of the
matters specified in clauses ( d, h to n) of
Section 1. A conjoint reading of Section 1
and sub section (2) of Section 297 amply
makes it clear that the State Government
has
been
empowered
to
provide
Regulations
consistent
with
the
Municipalities Act with respect to the
payment of gratuities. Thus, the power of
the State Government to frame the
Regulation for payment of gratuity cannot
be doubted. The validity of the Regulation
has not been questioned by the respondent
in the present writ petition.
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
846

9. The only question which survives
is whether the gratuity would be payable
to non centralized services of Nagar
Mahapalika as per provision of the
Gratuity Act or as per Regulations framed
by the State Government.

10. A brief survey of the provisions
of the Act would show that the Act is
general enactment for the purposes of
payment of gratuity and is applicable to
the all the factories, mine, oilfields,
establishments as mentioned in section 1
of the Act. This enactment by section 14
has been given overriding effect over the
other Statutes. Section 5 of the Act
empowers the State Government to
exempt any employee or class of
employee etc. by issuing a notification if
in the opinion of the State Government
such employee or class of employee is in
receipt of gratuity or pensionary benefits
not less favourable than the benefits under
the Act. A close reading of section 5
would show that if there is already in
existence any scheme for payment of
gratuity or pensionary benefits and if the
appropriate government is of the opinion
that the said scheme is more favourable
than the benefits conferred under the Act,
it by issuing a notification may exempt
the operation of the Act. In other words, it
talks about such schemes which were in
existence and were more beneficial on the
date of commencement of the Act.

11. A scheme which has been
framed subsequent to the commencement
of the Act by an appropriate government,
does not come within the ambit of section
5 of the Act.

12. The Regulation has come into
force subsequent to the enactment of the
Act, w.e.f. 1st of October, 1984. The date
on which the Regulations were framed, it
is presumed that the State Government
was aware about the existence of the Act
on the Statute book. The argument that
there being no exemption notification,
therefore, the provisions of Regulation
will not be attracted, is liable to be
rejected for the reasons more than one.
Firstly, section 5 of the Act which talks
about the power to exempt is not
applicable to such enactments which have
come into operation subsequent to the
commencement of the Act. Secondly, the
Regulations have been validly made by
the appropriate government in exercise of
power conferred on it by section 297 (2)
of the Municipalities Act. It cannot be
presumed that the Act has denuded the
power of the State Government which is
otherwise possessed by it under section
297 of the Municipalities Act.

13. There is another aspect of the
case. The Act is a general Act to deal with
the subject of payment of gratuity in
general to all the employees working in
factories etc.. The Regulation is a special
Act and has its limited area of the
operation. Under the said Regulation, the
non centralized employees of the U.P.
Nagar Mahapalika are only covered. Even
if it is taken that the Act and Regulations
both are special Acts, it has been laid
down by the Apex Court in no uncertain
terms that in such an event it is a later Act
which must prevail, as observed in
Solidaire India Limited Vs. Fairgrowth
Financial Services Limited and others
(2001) 3 SCC 71. In this case the
Supreme Court has referred, in this
context the following cases:-

1. Maharashtra TubeS Ltd. v. State
Industrial & Investment Corpn. of
Maharashtra Ltd. (1993) 2 SCC 144;
3 All] Nagar Palika Parishad and another V. Controlling Authority and others
847
2. Sarwan Singh v. Kasturi Lal (1977) 1
SCC 750;
3. Allahabad Bank v.Canara Bank
(2000) 4 SCC 406 and
4. Ram Narain V. Simla Banking &
Industrial Co. Ltd. AIR 1956 SC 614.

14. Facts in brief from the case of
Solidaire India Ltd.(supra) relevant for
the present purposes may be noticed. The
appellant therein had taken a loan from
the respondent therein and the agreement
was to repay the loan within the specified
time together with interest at 15% per
annum. The respondent was notified
under section 3 of the Special Court (Trial
of Offences Relating to Transactions in
Securities) Act, 1992 and; proceedings
were initiated by the custodian for
recovery of the said amount before the
Special Court. During the pendency of the
appeal before the Apex Court, the
appellant
has
become
sick
and
proceedings were initiate under the
provisions
of
the
Sick
Industrial
Companies (Special Provisions) Act,
1982. It was contended that in view of
special provisions contained in the Sick
Industrial Companies (Special Provisions)
Act, 1955 no proceedings should have
been initiated or continued under the
Special Court Act 1992. In this factual
background Apex Court took the view
that the Legislature being aware of the
provisions of section 22 under the Sick
Industrial Companies (Special Provisions)
Act, 1985 still empowered only the
Special Court under the 1992 Act to give
directions to recover and to distribute the
assets of the notified persons in the
manner set down under Section 11 (2) of
the 1992 Act. It was held that this only
means that the Legislature wanted the
provisions of Section 11 (2) of the 1992
Act to prevail over the provisions of any
other law including those of the Sick
Industrial Companies (Special Provisions)
Act, 1985. Thus, it is clear that in the
instant case, there was no intention of the
legislature to permit the 1985 Act to
apply, notwithstanding the fact that
proceedings in respect of. a company may
be going on before the BIFR. The 1992
Act is to have an overriding effect
notwithstanding any provision to the
contrary in another Act.

15. The learned counsel for the
petitioner could not place any exemption
notification issued by the State of U.P.
under section 4 of the Act but in my view
that
is
of
little
consequence.
The
Regulation may be treated as a combined
notification
both
the
exemption
notification under section 5 of the Act as
also the intention of the State Government
to make a special provision through the
Regulation for its non centralized services
of U.P. Nagar Mahapalika so far as
payment
of
gratuity
is
concerned.
Somewhat a similar situation came for
consideration before the Apex Court in a
slightly different context in a sales tax
matter in Commissioner of Sales Tax
U.P. Vs. Agra Belting Work, 1987
UPTC 850. In this case the commodity in
question was exempt from payment of
sales tax under section 4 of the U.P. Sales
Tax Act. Subsequently a notification was
issued under section 3-A of the Act
levying the tax. Repelling the argument of
the dealer that unless a notification
withdrawing the exemption under section
4 is issued, the notification levying tax
under section 3A of the Act would not be
operative, it was held that, in fact, the
notification under section 3 A can easily
be treated as a combined notification both
for withdrawal of exemption as also for
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
848
providing higher tax. The relevant portion
is reproduced below:-

"In fact, the second notification can
easily
be
treated
as
a
combined
notification both for withdrawal of
exemption and also for providing higher
tax. When power for both the operations
vests in the State and the intention to levy
the tax is clear we see no justification for
not giving effect to the 2nd notification.
We would like to point out that the
exemption was in regard to a class of
goods and while the exemption continues,
a specific item has now been notified
under section 3-A of the Act. "

16. Municipal Corporation of
Delhi Vs. Dharam Prakash Sharma and
another AIR 1999 SC 293 was heavily
relied upon by the learned counsel for the
respondents. From the report it appears
that the Pension Rules were already in
existence at the time of commencement of
the Act. The Apex Court was of the view
that unless an exemption notification
under section 5 of the Act is issued, the
provisions of the Act will be applicable.
In the case on hand, the Regulation has
come into force subsequent to the
commencement of the Act, thus the ratio
as laid down in the above case by the
Apex Court is distinguishable.

17. Apart from the above, the Apex
Court proceeded to decide a controversy
on the footing that the Payment of
Gratuity Act being a special provision for
payment of gratuity unless there is any
provision which excludes its applicability
to an employee who is otherwise
governed by the provisions of Pension
Rules, it is not possible to hold that an
employee of Municipal Corporation of
Delhi is not entitled to the gratuity under
the Act. In the present case, position is
different in as much as the Regulations
for payment of gratuity have been enacted
by the State Legislature for a class of its
employees. In this view of the matter also,
on facts the ruling given in the case of
Municipal Corporation of Delhi (supra)
is distinguishable.

18. Viewed as above, I find
sufficient force in the argument of the
learned counsel for the petitioner and it is
held that the contesting respondent is
entitled to get the gratuity as per the
Regulations
framed
by
the
State
Government in this regard and not under
the Payment of Gratuity Act. The writ
petition succeeds and is allowed and the
impugned order is quashed.

But no order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.
THE HON'BLE B.N. SHUKLA, J.

Criminal Appeal No. 2853 of 1982

Ram Babu and others
...Appellants
Versus
State of U.P.

 ...Respondent

Counsel for the Appellants:
Sri. Akhilesh Singh.
Sri. Janardan Yadav.

Counsel for the Respondent:
A.G.A.

Indain Penal Code Section 34, 302Punishment of life imprisonment-eye
witness stated in examination -in -chiefapplicant was armed with lathi-but
nothing whisper about carrying lathi