# Nagar Palika Parishad, Saharanpur & anr v. D.D. / R.D. Employees State Insurance

- **Citation:** (2012) 3 ILRA 1558
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-20
- **Case number:** Civil Misc. Writ Petition No. 5473 of 2006
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagar-palika-parishad-saharanpur-anr-v-d-d-r-d-employees-state-insurance-42363
- **Pages:** 3

## Headnote

Employees State Insurance Act-1948Recovery
of
amount
of
employees
insurance-from Corporation on Nagar
Palika-held-provisions of Insurance Act
not applicable either upon Municipal or
Corporation-recovery order quashed.

Held: Para-4

In view of above authorities ESI Act does
not apply to the petitioner; neither it
applied when it was Municipality nor it
3 All] Nagar Palika Parishad, Saharanpur & anr. V. D.D. / R.D. Employees State Insurance
1559
applies after it became corporation.
Accordingly all the orders passed and
notices issued against petitioner by the
authorities
under
ESI Act
including
orders and notices dated 07.12.2005, 22
or
23.12.2005,
06.12.2005,
23/28.09.2005,
20.01.2006
are
set
aside. The amount of Rs. 16 lacs
recovered by E.S.I.Corporation from the
petitioner shall be returned to the
petitioner within three months from date
of service of certified copy of this order
upon the authority concerned of ESI
Corporation.
Case Law discussed:
1996 (7) SCC 488; 2011 (2) LLJ 256 (UC)

## Text

1558 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
basis of facts on record that the house of
respondents exist on 3.6.1995 therefore
the land covered by their houses shall be
deemed to be settled with them by the
tenure holder of the land in question. It is
immaterial whether they have built their
houses with the consent/ permission of the
tenure holder of the land in question or
otherwise by taking forceful possession
of the land or their such possession is
unauthorized or as of tresspasser. It was
concluded that no other view is possible,
for the reason that it would completely
distort and defeat the very purpose of
deeming provisions which are coupled
with non-obtante clause of Section
123(2) of the Act.

14. Taking into consideration of the
said judgment, it may be noticed that in the
present case, no opportunity of hearing was
provided to the petitioner nor there is any
report of any of the authorities that the
respondent no. 3 has built her house and
such house existed on 3.6.1995 on the land
of the petitioner. The act of keeping
Mandahi, charni and chak will not amount
to building of a house as intended and
required under Section 123(2) of the Act.
This apart, the order dated 18.7.1996 passed
by the Up Ziladhikari is a non-speaking
order. The land of the petitioner could not
have been settled by one word order
(Sweekrit) by the Up Ziladhikari. No
opportunity of filing any objection for
contesting the matter was given to the
petitioner by the Up Ziladhikari.

15. The revisional court also did not
consider this aspect of the matter and not
considered the objections raised by the
petitioner. Moreover, the report of Lekhpal
and Revenue Inspector dated 4.7.1996, if
considered, would further substantiate the
case of the petitioner that the benefit of
Section 123(2) of the Act could not have
been given to the respondent no. 3
However, as a suit No. 447 of 1996 was
filed by respondent no. 3 against the
petitioner and she has got temporary
injunction thereunder, the suit is being
contested by the petitioner. Both the parties
can get their rights decided in the pending
suit. Both the impugned orders dated
18.7.1996 and 16.12.2004 are quashed.

16. The writ petition is allowed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 5473 of 2006

Nagar Palika Parishad, Saharanpur And
Another

 ...Petitioner
Versus
Deputy
Director/
Regional
Director
Employees State Insurance

 ...Respondents

Counsel for the Petitioner:
Sri C.K. Parekh
Sri Mukhtar Alam

Counsel for the Respondents:
Sri P.K. Pandey
Sri Rajesh Tiwari

Employees State Insurance Act-1948Recovery
of
amount
of
employees
insurance-from Corporation on Nagar
Palika-held-provisions of Insurance Act
not applicable either upon Municipal or
Corporation-recovery order quashed.

Held: Para-4

In view of above authorities ESI Act does
not apply to the petitioner; neither it
applied when it was Municipality nor it
3 All] Nagar Palika Parishad, Saharanpur & anr. V. D.D. / R.D. Employees State Insurance
1559
applies after it became corporation.
Accordingly all the orders passed and
notices issued against petitioner by the
authorities
under
ESI Act
including
orders and notices dated 07.12.2005, 22
or
23.12.2005,
06.12.2005,
23/28.09.2005,
20.01.2006
are
set
aside. The amount of Rs. 16 lacs
recovered by E.S.I.Corporation from the
petitioner shall be returned to the
petitioner within three months from date
of service of certified copy of this order
upon the authority concerned of ESI
Corporation.
Case Law discussed:
1996 (7) SCC 488; 2011 (2) LLJ 256 (UC)

(Delivered by Hon'ble Sibghat Ullah
Khan, J.)

1. List revised. No one appears for
respondent.

2. Heard Sri C.K. Parekh, learned
counsel for the petitioners.

3. The question involved in this case
is whether Employees' State Insurance
Act
1948
(E.S.I.
Act)
applies
on
Municipal Corporations/Municipalities or
not? Recovery Officer, ESI Corporation,
Kanpur had already recovered an amount
of about Rs.16 lacs from the petitioner
and issued notice for payment of further
amount of about Rs.17 lacs. Neither any
counter affidavit has been filed nor any
one is present for respondents Deputy/
Regional Director and Recovery Officer,
ESI
Corporation,
Kanpur.
Learned
counsel for the petitioner has cited two
authorities, one of Hon'ble Supreme Court
and the other of Uttrakhand High Court.
The Hon'ble supreme Court in its
authority reported in 1996(7) SCC 488,
Municipal Committee, Abohar Vs.
Regional
Commissioner,
E.S.I.
Corporation and another held that ESI
Act does not apply on a Municipal
corporation. That case was from Punjab.
Following that judgment Uttarakhand
High Court decided the case of Nagar
Palika
Hardwar
through
its
Administrator Vs. E.S.I. reported in
2011 (2) LLJ 256 (UC) Corporation
and others and applying the said
judgment of Hon'ble Supreme Court held
that Municipalities constituted under U.P.
Municipalities Act are also exempted
from the operation of ESI ACt. Learned
counsel for the petitioners states that
Nagar
Palika
Saharanpur
which
is
petitioner in this writ petition has now
become Corporation with effect from
October 2010.

4. In view of above authorities ESI
Act does not apply to the petitioner;
neither
it
applied
when
it
was
Municipality nor it applies after it became
corporation. Accordingly all the orders
passed
and
notices
issued
against
petitioner by the authorities under ESI Act
including
orders
and
notices
dated
07.12.2005,
22
or
23.12.2005,
06.12.2005, 23/28.09.2005, 20.01.2006
are set aside. The amount of Rs. 16 lacs
recovered by E.S.I.Corporation from the
petitioner shall be returned to the
petitioner within three months from date
of service of certified copy of this order
upon the authority concerned of ESI
Corporation.

5. Writ petition is allowed.
---------
1560 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 6730 of 2010

Khem Chand

 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Srivastava

Counsel for the Respondents:
C.S.C.

U.P. Police Oficers of Subordinate Ranks
(Punishment and Appeal) Rules 1991Rule
17
(6)-subsistence
allowancepetitioner was placed under suspension
on
contemplated
enquiry-reinstatedclaim for subsistence allowance during
suspension period-denial on pendency of
criminal case-held-illegal-words "shall"
used
in
rule
held
mandatory-not
dependent upon whim of authorities-non
payment
of
subsistence
allowanceamounts
to
denial
of
Fundamental
Rights-under Article 21 of Constitutiondirection for payment within 8 weeks
made.

Held: Para-8 and 9

The aforesaid Rule provides, that where
a Government Servant is placed under
suspension, he shall be entitled to a
subsistence allowance. The word ''shall'
is mandatory and it is not directory and
is not dependent on the whims and
fancies of the appointing authority.
Suspension is not a punishment and a
government employee is entitled to
survive during the period when he was
under suspension, otherwise it would be
in
violation
of
Article
21
of
the
Constitution
of
India.
Whenever
a
disciplinary
authority
suspends
an
employee, it is the bounden duty of the
disciplinary authority to pay suspension
allowance
and
non-payment
of
the
suspension
allowance
would
be
in
violation of the fundamental rights of the
petitioner to live with dignity as provided
under Article 21 of the Constitution of
India.

Mere pendency of a criminal case does
not entitle the disciplinary authority not
to release the suspension allowance. The
discretion can be exercised by the
disciplinary authority with regard to the
balance payment of the salary, but no
discretion can be exercised for payment
of the suspension allowance.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for the
petitioner and the learned standing counsel
for the respondents.

2. The petitioner was posted as a Head
Constable at Police Station Loni in District
Ghaziabad
and
was
placed
under
suspension by the Superintendent of Police,
by an order dated 20.5.1996, on the ground,
that a criminal case was registered against
the petitioner. Subsequently, by an order
dated
22.6.1996,
the
petitioner
was
reinstated. Subsequently, for the same
criminal case, the petitioner was again
suspended on18th April, 1998 and was
reinstated in service on 7.4.2000. The
petitioner made a representation contending
that for the suspension period he should be
given his salary and other allowances. Since
the same was not paid, the petitioner filed
Writ Petition No.41892 of 2006, which was
disposed of by a judgment dated 29.6.2009
directing the Senior Superintendent of
Police to pass appropriate orders with
regard to the release of his salary and other
benefits for the period when the petitioner
was under suspension. Pursuant to the said