# State of U.P. and another v. Ram Chandra Ram and another

- **Citation:** (2009) 1 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-27
- **Case number:** Civil Misc. Writ Petition No. 63409 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-another-v-ram-chandra-ram-and-another-41360
- **Pages:** 4

## Headnote

U.P. Retirement Benefit Rules 1961Section 2 (c)-readwith civil Services
classification
Regulation-Regulation
368-work charge employer appointed in
1968 Regularised on 31.12.93 retired on
31.08.01-gratuity w.e.f. Regulation-till
the date of retirement given but the
initial date of appointment not includedauthorised controller found entitled the
period of initial appointment in work
charge establishment be counted-heldthe status of work charge employee a
govt. employee holding substantive postprovisions of payment of gratuity Act not
applicable-order passed by authorized
controller without jurisdiction-However
the employee may approach before the
state
authority
for
redressal
of
grievances-gratuity
if
payable
w.e.f.
1968 to till the retirement-same be given
within 2 month.

Held: Para 6

A perusal of the aforesaid definition of
the word employee clearly indicates that
employee in an establishment, factory,
etc. will not include a person who holds a
post under a State Government and is
1 All] State of U.P. and another V. Ram Chandra Ram and another
273
governed by any Act or by any Rules
which provides for the payment of
gratuity. The amount of gratuity under
the Act is determined under Section 7
and only a person who is eligible for
payment of gratuity can file such an
application.
Section
4
of
the
Act
contemplates that gratuity shall
be
payable to an employee on termination
of his employment. A conjoint reading of
Section 4 read with Section 7 of the said
Act coupled with the definition clause of
the word "employee" as defined in
Section 2 (e) will make it absolutely
clear that a Government employee who
is governed by separate Act and Rules
relating to payment of gratuity is not
entitled to file an application under the
Payment of Gratuity Act. Consequently,
the impugned order passed by the
controlling authority cannot be sustained
and is quashed. The writ petition is
allowed. Any amount deposited by the
petitioner,
before
the
controlling
authority, is liable to be refunded to the
petitioner.

## Text

272 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
petitioner no. 1 is in illegal custody of the
respondents.

7. I have given my thoughtful
consideration to the submissions made by
the learned counsel for the parties.

8. From the facts and circumstances
of the case, it appears that petitioner no. 1
is the only witness of murder of his
mother, which is alleged to have been
committed by the father of petitioner no.
1. He has already deposed under section
164 Cr.P.C. against his father and on the
basis of his statement the father of
petitioner no. 1 has been detained in
custody. If the child is handed over to his
grand father i.e. the father of Ravi
Khandelwal, the possibility that the
evidence in the case shall be destroyed
cannot be over ruled. It has also born out
from the facts and circumstances of the
case that the child has not been illegally
detained and he is happily living with his
Nana and Nani. I do not find it fit to hand
over the custody of the child to petitioner
no. 2, the grand father of petitioner no. 1.

9. The writ petition is devoid of
merit and is liable to be dismissed.

10. The petition is dismissed
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 63409 of 2005

State of U.P. and another...Petitioners

Versus
Ram Chandra Ram and another

 ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar
Sri Amit Sthalekar
S.C.

Counsel for the Respondents:
Sri Dhananjay Kumar Rai

U.P. Retirement Benefit Rules 1961Section 2 (c)-readwith civil Services
classification
Regulation-Regulation
368-work charge employer appointed in
1968 Regularised on 31.12.93 retired on
31.08.01-gratuity w.e.f. Regulation-till
the date of retirement given but the
initial date of appointment not includedauthorised controller found entitled the
period of initial appointment in work
charge establishment be counted-heldthe status of work charge employee a
govt. employee holding substantive postprovisions of payment of gratuity Act not
applicable-order passed by authorized
controller without jurisdiction-However
the employee may approach before the
state
authority
for
redressal
of
grievances-gratuity
if
payable
w.e.f.
1968 to till the retirement-same be given
within 2 month.

Held: Para 6

A perusal of the aforesaid definition of
the word employee clearly indicates that
employee in an establishment, factory,
etc. will not include a person who holds a
post under a State Government and is
1 All] State of U.P. and another V. Ram Chandra Ram and another
273
governed by any Act or by any Rules
which provides for the payment of
gratuity. The amount of gratuity under
the Act is determined under Section 7
and only a person who is eligible for
payment of gratuity can file such an
application.
Section
4
of
the
Act
contemplates that gratuity shall
be
payable to an employee on termination
of his employment. A conjoint reading of
Section 4 read with Section 7 of the said
Act coupled with the definition clause of
the word "employee" as defined in
Section 2 (e) will make it absolutely
clear that a Government employee who
is governed by separate Act and Rules
relating to payment of gratuity is not
entitled to file an application under the
Payment of Gratuity Act. Consequently,
the impugned order passed by the
controlling authority cannot be sustained
and is quashed. The writ petition is
allowed. Any amount deposited by the
petitioner,
before
the
controlling
authority, is liable to be refunded to the
petitioner.

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

1. Heard Sri S.S. Sharma, the
learned standing counsel for the petitioner
and Sri Dhananjai Kumar Rai, the learned
counsel for the respondents.

2. The petitioner has challenged the
orders dated 15.2.2005 and 27.6.2005
passed by the controlling authority under
the Payment of Gratuity Act, 1972. The
facts as culled out from the record is, that
respondent No.1 was appointed as a work
charged employee in the petitioner's
establishment
on
1.9.1968
and
his
services
was
regularized
w.e.f.
31.12.1993. The petitioner retired from
the service on 31.8.2001 and at that time,
an amount of Rs.17, 160/- was paid as
gratuity, taking the period of service from
31.12.1993 till the date of his retirement
dated 31.8.2001. The respondent No.1,
being aggrieved by the non-inclusion of
the period from 1968 to 1993, i.e., the
period when he had started working as a
work
charged
employee,
filed
an
application, for computation of the
gratuity, before the controlling authority
under the Payment of Gratuity Act. The
controlling authority, after considering the
matter, passed an order dated 15.2.2005
holding that, the period from 1.9.1968 to
31.12.1993 was also to be included as
period spent in service while computing
the gratuity and, accordingly directed the
petitioner to pay the balance amount of
Rs.57,412/- along with interest @ 10%
p.a. The petitioner, being aggrieved, has
filed a review application which was also
rejected by an order dated 27.6.2005. The
petitioner thereafter has filed the present
writ petition.

3. A preliminary objection was
raised that the petitioner has an alternative
remedy of filing an appeal under Section
7(7) of the Act. No doubt the petitioner
has a remedy of filing an appeal but
considering
the
facts
and
the
circumstances of the case that has been
brought on record coupled with the fact
that the writ petition was entertained in
the year 2005, this Court is of the opinion,
that it is a fit case where the Court should
exercise the writ jurisdiction under Article
226 of the Constitution of India since the
Court finds that the question with regard
to the applicability of the Act is involved
in the present writ petition and which
goes to the root of the matter.

4. According to the petitioner, the
respondent No.1 is an employee of the
State Government and therefore, the
Payment of Gratuity Act 1992 is not
applicable and that U.P. Retirement
Benefit Rules, 1961 is applicable which
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
has been framed in exercise of the powers
conferred under Article 309 of the
Constitution of India.

5. According to the petitioner the
respondent No.1 is an employee of the
State Government and holds a substantive
post as per Regulation 368 of the Civil
Service Regulations and consequently, the
U.P. Government Benefit Rules, 1961
becomes applicable upon the respondent
No.1 and gratuity is required to be paid as
per the said Rules. Section 2(e) of the
Payment of Gratuity Act defines as
under:-

"(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, semiskilled, 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 an rules providing for payment
of gratuity]."

6. A perusal of the aforesaid
definition of the word employee clearly
indicates
that
employee
in
an
establishment, factory, etc. will not
include a person who holds a post under a
State Government and is governed by any
Act or by any Rules which provides for
the payment of gratuity. The amount of
gratuity under the Act is determined under
Section 7 and only a person who is
eligible for payment of gratuity can file
such an application. Section 4 of the Act
contemplates
that
gratuity
shall
be
payable to an employee on termination of
his employment. A conjoint reading of
Section 4 read with Section 7 of the said
Act coupled with the definition clause of
the word "employee" as defined in
Section 2(e) will make it absolutely clear
that a Government employee who is
governed by separate Act and Rules
relating to payment of gratuity is not
entitled to file an application under the
Payment of Gratuity Act. Consequently,
the impugned order passed by the
controlling authority cannot be sustained
and is quashed. The writ petition is
allowed. Any amount deposited by the
petitioner,
before
the
controlling
authority, is liable to be refunded to the
petitioner.

7. The matter does not end here.
According to the respondent, he is liable
to be paid gratuity on the basis of the
period of service which he had put in
from 1968 till the date of his retirement in
2001. On the other hand, the petitioners
have calculated the gratuity from the date
when the respondent was treated as a
regular employee. No reason has been
given by the employers as to why the
period from 1968 to 1993 has not been
included under Rule 3(8) of the U.P.
Government
Benefit
Rules
1961.
Consequently, it would be open to the
respondent No.1 to move an appropriate
application for payment of the remaining
amount of gratuity before the employers
concerned. If such an application is filed,
the
employers
will
consider
his
application and pass a fresh order within
two months from the date of the
production of a certified copy of this
order. If respondent No.1 is entitled for
payment of gratuity, taking his service
from 1968 onwards till his date of
1 All] Roop Chandra V. State of U.P. and others
275
retirement,
the
arrears
would
be
calculated and paid within two months
thereafter.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 52720 of 2007

Roop Chandra

...Petitioner

Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Awadh Narain Rai

Counsel for the Respondents:
S.C.

Constitution of India-Art. 226-Pension
and gratuity-petitioner working as class
4th employee in Intermediate College
running under grant in-aid-retired on
31.10.05-G.O. dated 19.4.2006 for the
first time provides benefit of gratuity
and pension to the non teaching staffdenied on the ground of retirement date
prior to the enforcement of provision--
mis-conceived-petitioner held entitled
for benefit of G.O. 19.4.06-direction for
payment of post retired benefit with
15% interest given.

Held: Para 12

From the above proposition of law laid
down by the Apex Court and this Court it
is
clear
that
the
benefit
of
the
Government
Order
dated
19.4.2006
cannot be denied to the employees who
retired prior to 19.4.2006 and such
benefits are also available to them,
including the petitioner. The notification
is always read prospectively unless it is
made retrospective. The Government
Order dated 19.4.2006 has been further
clarified by the Government Order dated
23.11.2007 which says that the benefit is
available w.e.f. 19.4.2006. In this view
of the matter, the petitioner is entitled
for the benefit of the Government Order
dated 19.4.2006 w.e.f. 19.4.2006 and
prior to that.
Case law discussed:
1983 (1) SCC-305, 1998 (2) UPL.BEC-1525,
2001 (4) ESC-1589, 2004 (3) ESC-1690, 2002
(1) ESC-136

(Delivered by Hon'ble Rajes Kumar, J.)

1. By means of present petition, the
petitioner is seeking a direction to the
respondents to grant gratuity and other
retiral benefits.

2. The petitioner was appointed as
Class IV employee on 7.8.1971 by a
competent authority in a institution named
as Mahamana Malviya Inter College
Khekhada, District Aligarh imparting
secondary education and is under grantin-aid by the State Government. The
provision for payment of salary of 1971 is
applicable. The petitioner attained the age
of superannuation at the age of 58 years
on 31.10.2005. Admittedly, when the
petitioner retired he was not entitled for
gratuity and other retiral benefits. The
State Government by the Government
Order dated 19.4.2006 provided the
benefits of gratuity and other retiral
benefits to the non-teaching Class I V
employees. The petitioner claimed the
benefit of gratuity and post retiral benefits
on the basis of the Government Order
dated 19.4.2006 and accordingly filed a
representation
in
this
regard.
The
representation has not been decided. The
petitioner has filed the present writ
petition.

3. The respondent has filed the
counter affidavit stating therein that the