# State of U.P. & Ors v. Sri Sudama Prasad Tiwari

- **Citation:** (2024) 2 ILRA 1052
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Writ - C No. 1002256 of 2013
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-sri-sudama-prasad-tiwari-51406
- **Pages:** 4

## Headnote

Civil Law Payment of Gratuity Act, 1972 -
Sections 2(e), 14 - Daily Wage Employee
- Entitlement to Gratuity - Government
Order - Article 226 - The St. of Uttar Pradesh
challenged the order dated 27.06.2012 by the
Controlling Authority under the Payment of
Gratuity
Act,
1972,
granting
gratuity
to
respondent No. 1, Sudama Prasad Tiwari, a
daily wage employee (Tindail) in the Irrigation
Department from 02.01.1984 to 08.11.2004,
and later as a Work Supervisor (Karya
Paryavekshak) until retirement on 31.07.2009.
The respondent claimed gratuity for 25 years, 6
months, and 29 days of continuous service. The
St. argued that daily wagers are not entitled to
gratuity under Civil Service Regulations and a
Government Order dated 28.07.2006, and that
the respondent's regularized service (20042009) was less than five years, disqualifying
him. Held: The respondent, as a daily wage
employee,
fell
within
the
definition
of
"employee" under Section 2(e) of the 1972 Act,
as he was not covered by any other gratuityproviding law or rules. Section 14 of the Act
overrides
inconsistent
enactments
or
government
orders,
rendering
the
2006
Government Order inapplicable. The respondent
proved continuous service from 1984 to 2009,
satisfying the Act's requirements. The St.'s claim
of regularization was not substantiated before
the Controlling Authority, and even if true, the
daily wage period (1984-2004) qualified for
gratuity. The court upheld the Controlling
Authority's order, finding no infirmity, but
modified it to award simple interest instead of
compound interest on the gratuity amount from
the due date until payment.

The petition was dismisse

## Text

1052 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint filed by him under the U.P. Self
Financed
Independent
Schools
(Fee
Regulation) Act, 2018, Complaint before
the Police Authorities as also Complaint on
the IGRS portal against the institution and
its teaching staff and submit an undertaking
that such conduct shall not be repeated in
future. The petitioner No. 1 shall also
deposit the defaulted fee (waived fee) as
also the future fee as and when the same
shall falls due. The respondent No. 7 in
turn will withdraw the defamation case and
/ or any other cases instituted against the
parents of the petitioner Nos. 2 and 3. The
respondent No. 7 shall withdraw the
transfer certificates dated 23.3.2023 accept
the fee in respect of the petitioner Nos. 2
and 3, restore their names on the school
rolls and readmit them for the academic
session 2024-2025.

22. Ordered accordingly. No order as
to costs.
----------
(2024) 2 ILRA 1052
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 1002256 of 2013

State of U.P. & Ors. ...Petitioners
Versus
Sri Sudama Prasad Tiwari ...Respondent

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondent:
C.S.C., Ashish Mishra

Civil Law Payment of Gratuity Act, 1972 -
Sections 2(e), 14 - Daily Wage Employee
- Entitlement to Gratuity - Government
Order - Article 226 - The St. of Uttar Pradesh
challenged the order dated 27.06.2012 by the
Controlling Authority under the Payment of
Gratuity
Act,
1972,
granting
gratuity
to
respondent No. 1, Sudama Prasad Tiwari, a
daily wage employee (Tindail) in the Irrigation
Department from 02.01.1984 to 08.11.2004,
and later as a Work Supervisor (Karya
Paryavekshak) until retirement on 31.07.2009.
The respondent claimed gratuity for 25 years, 6
months, and 29 days of continuous service. The
St. argued that daily wagers are not entitled to
gratuity under Civil Service Regulations and a
Government Order dated 28.07.2006, and that
the respondent's regularized service (20042009) was less than five years, disqualifying
him. Held: The respondent, as a daily wage
employee,
fell
within
the
definition
of
"employee" under Section 2(e) of the 1972 Act,
as he was not covered by any other gratuityproviding law or rules. Section 14 of the Act
overrides
inconsistent
enactments
or
government
orders,
rendering
the
2006
Government Order inapplicable. The respondent
proved continuous service from 1984 to 2009,
satisfying the Act's requirements. The St.'s claim
of regularization was not substantiated before
the Controlling Authority, and even if true, the
daily wage period (1984-2004) qualified for
gratuity. The court upheld the Controlling
Authority's order, finding no infirmity, but
modified it to award simple interest instead of
compound interest on the gratuity amount from
the due date until payment.

The petition was dismisse

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri S.K. Khare, learned
Standing Counsel for the State/petitioners.
No one has appeared on behalf of the
respondent no. 1 and perused the material
available on record.

2. The State of Uttar Pradesh has filed
the present writ petition being aggrieved by
the judgment dated 27.06.2012 passed by
the
Controlling
Authority
under
the
2 All. State of U.P. & Ors. Vs. Sri Sudama Prasad Tiwari
1053
provisions of Payment of Gratuity Act,
1972 whereby the claim of respondent no.
1/workman has been allowed and he has
been held to be entitled for payment of
gratuity for working on daily wages for a
period of 25 years, 6 months and 29 days.

3. The facts in brief are that the
respondent no. 1 Sudama Prasad Tiwari
had worked as Daily Wage Employee on
the post of TINDAIL in the office of
Sinchai Khand, Sharda Nagar, Lakhimpur
Kheri with effect from 2.1.1984 to
8.11.2004. According to the claim made by
respondent no. 1, he had continuously
worked from 2.1.1984 to 31.07.2009 and
attained superannuation on his retirement
on his attaining the age of 60 years. He has
stated that for his entire length of service,
he had worked on daily wages/Muster Roll
in the Irrigation Department, Sitapur in the
Work-Charge Establishment on the post of
Karya Paryavekshak.

4. It is in the aforesaid fact that
despite working for 25 years, 6 months and
29 days, the respondent no. 1 was not given
gratuity by the petitioner and consequently
had moved an application before the
Controlling Authority. The notices were
issued to the petitioners being the employer
and they appeared before the Controlling
Authority
and
filed
their
objections
opposing the claim of the workman. It was
stated on behalf of the petitioner that the
service in a work charge establishment falls
in a different category and also admitted
that he does not fall as a regular
government servant and hence he cannot be
treated as regular government servant and
no gratuity is payable to him. It was further
stated that under the various government
orders issued by the State of Uttar Pradesh,
the daily-wagers are not entitled for
gratuity, inasmuch as, according to the
Civil Service Regulations, the daily wagers
are neither entitled for pension nor gratuity.
Thus, the petitioners also relied upon the
government orders issued by them.

5. It was further stated that while
discharging his duties on the post of Work
Supervisor as work charge employee w.e.f.
8.11.2004 till 31.07.2009, the respondent
no. 1 had worked only for a period of four
years, eight months and twenty three days,
which is less than a period of five years,
hence on this account also he was not
entitled for payment of gratuity. Lastly it
was stated that the government order dated
18.07.2006 itself provides that a daily-wage
employee shall not be entitled for gratuity,
hence prayed for rejection of the claim
made by employee/respondent no. 1.

6. The Controlling Authority duly
considered the objections filed by the
petitioners, as well as the evidence, which
was made available on record. It duly
considered all the arguments raised by the
petitioner in their written submissions with
regard to the admissibility of the gratuity to
the employee.

7. The arguments of the petitioners
were rejected on the ground that as per
Section 14 of the Payment of Gratuity Act,
1972. The said Act of 1972 overrides all
the other Acts or Rules, which are
inconsistent with the said Act. Accordingly,
the Authority was of the view that the
Government Orders or any other Rules
made by the State of Uttar Pradesh in this
regard cannot be invoked by the petitioners
for denying the valid claim of payment of
gratuity to the workman. It also returned
the finding that it was duly demonstrated
and proved by the workman that he had
worked from 2.1.1984 to 31.07.2009
continuously
on
daily-wages
and
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
accordingly, all the ingredients were
available for him under the Payment of
Gratuity Act, 1972.

8. This Court has also perused the
impugned judgment and considered the
arguments
raised
by
the
petitioners
assailing
the
impugned
order
dated
27.06.2012. For admissibility of payment
of gratuity, it is to be considered whether
the workman falls in the definition of an
employee as provided for under Section 2
of the Act of 1972. The definition of an
employee is quoted here-in-below:-

"2 (e) ["employee" means any
person (other than an apprentice) who is
employed for wages, whether the terms of
such employment are express or implied, in
any kind of work, manual or otherwise, in
or in connection with the work of a factory,
mine, oilfield, plantation, port, railway
company, shop or other establishment to
which this Act applies, 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;]."

9. From perusal of the aforesaid
definition, it is clear that any person who is
employed for wages in the establishment
defined therein would be entitled for
payment of gratuity subject to the condition
that such employment should not be under
the Central Government or the State
Government and is not governed by any
Act or Rules provided for payment of
gratuity.

10. In the present case, the workman
was able to prove that he had worked
continuously from 2.1.1984 to 31.07.2009
on daily wages and Muster Roll pertaining
to his employment were duly proved before
the Controlling Authority. Even a perusal
of the written submissions filed by the
petitioner before the Controlling Authority,
it was not their case that the respondent no.
1 was entitled for gratuity under any other
law or rules framed by the State of Uttar
Pradesh. It could not be demonstrated that
the workman was covered by any other
rules or enactment so as to exclude with
regard to the beneficial provisions of the
Gratuity Act.

11. The case of the petitioners before
this Court is that the workman had worked
on daily wages from 2.1.1984 to 8.11.2004
but
subsequently
his
services
were
regularized and he was working on the post
of Karya Paryavekshak and was being paid
regular salary. Though this fact was never
proved before the Controlling Authority but
in any case there is no denial of the fact
that even according to the petitioner the
workman had worked continuously from
2.1.1984 to 8.11.2004.

12. Even in the writ petition in
paragraph no. 16, it has been stated that
"....... the petitioner worked on the post of
Tindail as daily wage employee and was
getting a sum of Rs.2,400/- per month, as
such, the period for which he remained
working on daily wage basis is not
computable for calculating the amount of
gratuity in view of the Government Order
dated 18.07.2006....."

13. From the above, it is undisputed
that the employee had worked from
02.01.1984
to
08.11.2014
on
daily
wages,and as such he would be entitled to
gratuity and these facts support the order
passed by the Controlling Authority.

14. The challenge in the present case
is primarily on the ground that there is a
2 All. Jagat Pal Singh Vs. State of U.P.
1055
government order dated 28.7.2006, which
provides that gratuity shall not be made
applicable to the employees working on
daily wages. To consider the submission of
the learned Standing Counsel to the
challenge of the order of the Controlling
Authority specially with regard to the
Government Order dated 28.07.2006, we
will have to take into consideration the
relevant provisions of the Gratuity Act
relating to applicability of other laws.
Section 14 of the Payment of Gratuity Act,
1972 provides for the following:-

14.
Act
to
override
other
enactments, etc.

-The provisions of this Act or any
rule made thereunder shall have effect
notwithstanding
anything
inconsistent
therewith contained in any enactment other
than this Act or in any instrument or
contract having effect by virtue of any
enactment other than this Act.

15. Accordingly, the petitioners
cannot invoke the provisions of any
government
order
contrary
to
the
provisions of the Repayment of Gratuity
Act, 1972 and in case there is any conflict,
the provisions of Section 14 of the Act of
1972 provide that the Payment of Gratuity
Act would override any such government
orders and consequently, merely because
the government order dated 28.07.2006
provides for non-payment of gratuity to the
persons employed on daily-wages cannot
be a ground for denial of gratuity to the
respondent no. 1. The provisions of
government order dated 28.07.2006 cannot
be invoked to deny benefit of gratuity to
the petitioner as it would not operate and
override the provisions of Gratuity Act,
1972and as per provisions of Section 14 of
the Act of 1972, will have to give way to
the beneficial provisions of Act, 1972.
15. Accordingly, the challenge
made by the petitioners to the impugned
order fails and after examining the
impugned order, this Court does not find
any infirmity. Accordingly, the petition
being devoid of merits is dismissed.
However, it is provided that the impugned
order is only modified only to the extent
that instead of compound interest, the
workman shall be entitled to simple interest
on the admissible amount of gratuity from
the date when it was admissible till the date
of actual payment.
----------
(2024) 2 ILRA 1055
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.02.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ - C No. 1003197 of 2010

Jagat Pal Singh ...Peitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Dhirendra Singh, Aditya Tiwari

Counsel for the Respondents:
C.S.C., Prashant Kumar Srivastava

Civil Law - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Rule 285B -
Transfer of Property Act, 1882 - Section
60 - Constitution of India - Article 300A -
Auction Sale - Right of Redemption - Arbitrary
Action - The petitioner, Jagat Pal Singh,
challenged the auction of his agricultural land in
Raebareli, conducted on 16.06.1991 by the
Collector to recover an outstanding loan of Rs.
17,929 (later Rs. 69,929) from Bank of Baroda,
taken in 1975. The St. purchased the land for
Rs. 1/- due to no bidders, with mutation
recorded
on
05.06.1992.
The
petitioner,
unaware until 2010, claimed he had repaid Rs.