# U.P. Bhumi Sudhar Nigam Thru. Managing Director v. Appellate Authority Under P.G. Act Lko. & Ors

- **Citation:** (2024) 10 ILRA 883
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-04
- **Case number:** Writ-C No. 11317 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-bhumi-sudhar-nigam-thru-managing-director-v-appellate-authority-under-p-g-51151
- **Pages:** 7

## Headnote

A. Service Law - Gratuity - Gratuity will
have to be paid to all those persons whose
employment came to an end after the
coming into force of the Act for that
period during which he came within the
definition of an employee within the
meaning of Section 2(e) of the Payment of
Gratuity Act. To hold otherwise may render a
whole class of persons who all their lives got
wages of less than Rs.1000/- per month, but on
the eve of their retirement started getting
wages of Rs.1000/- per month. Surely that
could not have been the intention of Parliament.
The only reasonable way of construing
Section 4 in the light of the definition of
employee in Section 2(e) is to hold that a
person whose services are terminated for
any of the reasons mentioned in Section
4(1), after the coming into force of the Act
is entitled to the payment of gratuity, if he
has rendered continuous service for not
less than five years, for that period during
which he has satisfied the definition of
employee u/s 2(e) of the Act. (Para 19)

Terms and conditions of employment of the
private respondents are evident by means of
various agreements entered into between the
parties from time to time. Act of 1972 does not
talk of salary but the Payment of Gratuity Act,
1972 has cautiously used the word "wages" and
has linked the same with the terms and
conditions of employment. (Para 16)

The terms and conditions of employment are
evident from the contract. Thus, the services of
opposite party no.3 would be deemed to be a
fixed service as contemplated u/s 2A of the Act
of 1972 and the fixed amount paid to him would
be included within the ambit of "wages" as
described u/s 2(s) of the Act. (Para 17)

The term "completed year of service" and
"continuous service" as defined u/s 2(b), 2(c)
and 2A of the Act of 1972 also lead to only one
interpretation that the employment of the
opposite party no.3 has to be treated as
continuous employment. (Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

Ahmedabad Pvt. Primary Teachers' Assn Vs
Administrative Officer & ors., (2004) 1 SCC 755
(Para 19)

Present petition challenges the orders
dated 08.02.2019 and 07.09.2020, passed
by the Prescribed Authority and the
Appellate Authority under the provisions
of the Payment of Gratuity Act, 1972.

## Text

10 All. U.P. Bhumi Sudhar Nigam Thru. Managing Director Vs. Appellate Authority Under P.G.
 Act Lko. & Ors.
883
26. Having regard to the foregoing
discussions, the principles with regard to the
applicability of the U.P. Revenue Code, 2006,
may be summarized as follows:

 26.1. The provisions of the Revenue
Code shall apply to the whole of Uttar Pradesh,
except: (i) Chapter VIII which deals with
management of land and other properties of
Gram Panchayat or other local authorities, and
(ii) Chapter IX which deals with tenures.

 26.2. The provisions of Chapters
VIII and IX, together with the provisions under
the remaining chapters of the Revenue Code,
shall apply to the areas to which the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950, or U.P. Urban Areas
Zamindari Abolition and Land Reforms Act,
1956, were applicable on the date immediately
preceding their repeal by the Revenue Code.

27. As a corollary to the aforesaid
principles, it may be stated that an area which
was included in the municipal limits after July
7, 1949 and to which Z.A. Act, 1950 continued
to be applicable by virtue of the provisions
contained under Section 1(2) thereof, would be
governed by the provisions of the U.P. Revenue
Code, 2006, in its entirety, after the repeal of the
Z.A. Act, 1950 by the Revenue Code.

28. In the case at hand, the village
in question, having been included within
the municipal limits, in terms of a
notification dated 31.12.2019, issued under
the provisions of the Uttar Pradesh
Municipalities
Act,
1916,
and
the
provisions of the Z.A. Act, 1950, being
applicable to it as on the date of
enforcement of the U.P. Revenue Code,
2006, which is February 11, 2016, in terms
of Section 2 thereof, the provisions of the
U.P. Revenue Code, 2006, would apply to
the area, in its entirety.
29. There is thus no manner of doubt
with regard to the applicability of the provisions
under Sections 25, 26 and 27 of the Revenue
Code under Chapter V thereof to the area in
question. The objection raised by the petitioner
with regard to the jurisdiction of the concerned
respondent authority in passing of the order
exercising powers under Section 25, is therefore
held to be legally untenable.

30. The order dated 03.01.2023 passed
by the respondent No. 4 exercising powers
under Section 25 of the Revenue Code, having
been held to be unassailable on the ground of
lack of jurisdiction, the contention raised by the
petitioner with regard to the bar of the
availability of the statutory alternative remedy
under Section 27 being not applicable, cannot
be sustained.

31. The writ petition is therefore not
entertained on the ground of the availability of
the statutory alternative remedy of a revision
under Section 27 of the Revenue Code.

32. The petition stands disposed of,
leaving it open to the petitioner to take recourse
to the statutory alternative remedy.
----------
(2024) 10 ILRA 883
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 11317 of 2020

U.P. Bhumi Sudhar Nigam Thru. Managing
Director ...Petitioner
Versus
Appellate Authority Under P.G. Act Lko. &
Ors. ...Respondents

Counsel for the Petitioner:
884 INDIAN LAW REPORTS ALLAHABAD SERIES
Anurag Tripathi

Counsel for the Respondents:
C.S.C.

A. Service Law - Gratuity - Gratuity will
have to be paid to all those persons whose
employment came to an end after the
coming into force of the Act for that
period during which he came within the
definition of an employee within the
meaning of Section 2(e) of the Payment of
Gratuity Act. To hold otherwise may render a
whole class of persons who all their lives got
wages of less than Rs.1000/- per month, but on
the eve of their retirement started getting
wages of Rs.1000/- per month. Surely that
could not have been the intention of Parliament.
The only reasonable way of construing
Section 4 in the light of the definition of
employee in Section 2(e) is to hold that a
person whose services are terminated for
any of the reasons mentioned in Section
4(1), after the coming into force of the Act
is entitled to the payment of gratuity, if he
has rendered continuous service for not
less than five years, for that period during
which he has satisfied the definition of
employee u/s 2(e) of the Act. (Para 19)

Terms and conditions of employment of the
private respondents are evident by means of
various agreements entered into between the
parties from time to time. Act of 1972 does not
talk of salary but the Payment of Gratuity Act,
1972 has cautiously used the word "wages" and
has linked the same with the terms and
conditions of employment. (Para 16)

The terms and conditions of employment are
evident from the contract. Thus, the services of
opposite party no.3 would be deemed to be a
fixed service as contemplated u/s 2A of the Act
of 1972 and the fixed amount paid to him would
be included within the ambit of "wages" as
described u/s 2(s) of the Act. (Para 17)

The term "completed year of service" and
"continuous service" as defined u/s 2(b), 2(c)
and 2A of the Act of 1972 also lead to only one
interpretation that the employment of the
opposite party no.3 has to be treated as
continuous employment. (Para 18)

Writ petition dismissed. (E-4)

Precedent followed:

Ahmedabad Pvt. Primary Teachers' Assn Vs
Administrative Officer & ors., (2004) 1 SCC 755
(Para 19)

Present petition challenges the orders
dated 08.02.2019 and 07.09.2020, passed
by the Prescribed Authority and the
Appellate Authority under the provisions
of the Payment of Gratuity Act, 1972.

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

1. The petitioner which is a
corporation of the State of U.P. has filed
the present writ petition challenging the
orders dated 22.01.2019 and 24.01.2020
passed by the Prescribed Authority and the
Appellate Authority under the provisions of
the Payment of Gratuity Act, 1972.

2. The facts in brief are that the
respondent no.3 was employed with the
petitioner on the basis of contract entered
into between the parties on consolidated
salary w.e.f 09.06.1996 He had worked
with the petitioner for a period of 11 years
and his services were dispensed with on
02.01.2007 after working for 11 years.

3. Respondent no.3 had filed an
application for grant of gratuity as per
provisions of the Payment of Gratuity Act,
1972.
He
has
stated
that
he
has
continuously worked with the petitioner
and he was covered within the definition of
"employee" as provided in the Act of 1972
but despite his application the amount of
gratuity was not paid by the petitioner,
accordingly, he filed an application for
Payment of Gratuity before the controlling
10 All. U.P. Bhumi Sudhar Nigam Thru. Managing Director Vs. Appellate Authority Under P.G.
 Act Lko. & Ors.
885
authority/ Assistant Labour Commissioner,
Lucknow.

4.

The
Assistant
Labour
Commissioner/
Prescribed
Authority
considered
the
arguments
and
the
averments made by the opposite party no.3
and came to the conclusion that he had
worked for more than 5 years continuously
and was entitled for gratuity irrespective of
the fact that his employment was of
contractual nature.

5. With regard to the petitioner he
concluded
that
the
petitioner
is
a
Corporation and falls within a definition of
Section 2 (f) of the Act of 1972 wherein it
has been provided that :-

 "employer? means, in relation to
any establishment, factory, mine, oilfield,
plantation, port, railway company or shop
-

 i. belonging to, or under the
control of the Central Government or a
State Government, a person or authority
appointed by the appropriate Government
for the
supervision and
control of
employees, or where no person or
authority has been so appointed, the Head
of the Ministry or the Department
concerned."

6. Considering the aforesaid
provision he concluded that there was no
doubt that the petitioner falls under the
aforesaid provisions of the Act of 1972 and
?wages? have been defined to be all
emoluments which are carried by the
employee while on duty or on leave and in
accordance with the terms and conditions
of the employment and held that the
respondent no.3 was entitled to receive
gratuity under the Act of 1972.
7. The petitioner being aggrieved
by the order of the Prescribed Authority
dated 22.01.2019 preferred an appeal
before
the
Appellate
Authority.
The
Appellate Authority also affirmed the
findings
recorded
by
the
controlling
authority and rejected the appeal by means
of the judgment dated 24.01.2020.

8. It has been submitted that prior
to filing of the said appeal the petitioner
had deposited amount of gratuity payable
to the private respondents before the
controlling authority and after judgment of
the appellate authority the said amount was
duly withdrawn by the private respondents.

9. It has been submitted by the
learned counsel for the petitioner that both
the
orders
are
illegal
and
arbitrary
inasmuch as it has been presumed that the
private respondents has been in continuous
services for more than five years inasmuch
as there was no specific term in the
agreement or the contract that they would
be allowed to continue for such a period. It
has further been stated that the appointment
of the private respondents was for a
specific period and whenever the said
period came to an end a fresh contract was
entered into and, accordingly, it cannot be
said that the private respondents has been
under continuous service as defined under
Section 2 (A) of the Act of 1972 to hold
that
the
respondents
have
been
in
continuous service.

10. It has further been stated that
the
respondents
were
contractual
employees and the services were governed
by the specific terms and conditions and,
consequently, provisions of Payment of
Gratuity Act, 1972 could not be attracted
and, hence, have assailed the impugned
orders.
886 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Learned counsel for the private
respondents have on the other hand
submitted that the Prescribed Authority as
well as the Appellate Authority has dealt
with these objections raised by the
petitioner in detail and also relied upon the
various case laws in the matter and rejected
the conditions holding that the petitioner
has been in continuous service for more
than five years and was fully covered by
the provisions of the Payment of Gratuity
Act, 1972 and the petitioner also falls
within the definition of "employee" and,
hence, concluded that there is no infirmity
in the impugned orders and prays for
dismissal of the writ petition.

12. We have considered the
submissions
of
the
learned
counsel
appearing for the parties and perused the
record.

13. It is noticed that the respondent
no.3 was appointed on contract basis by the
petitioner and the said contract period was
extended on the expiry of the previous
contract period and in this regard he
continued to work for 11 years.

14. Neither before the authorities
below or in the present writ petition is there
any averment or material which may
indicate that after expiry of the period of
contract, the employee was out of job and
on the contrary it has been demonstrated
that on expiry of the contract a fresh
contract was entered into and, accordingly,
he continued into services continuously
since
1996-2007.
It
could
not
be
demonstrated that there was any break in
service or that period of 11 years in
employment
were
not
covered
by
"continuous service" as described in
Section 2 A of the Act of 1972.

15. Continuous service has been
defined under Section 2 (A). Continuous
Service - For the purpose of this Act, -

 1. An employee shall be said to be
in continuous service for a period if he has,
for that period, been in uninterrupted
service, including service which may be
interrupted
on
account
of
sickness,
accident, leave, absence from duty without
leave (not being absence in respect of
which an order treating the absence as
break in service has been passed in
accordance with the standing orders, rules
or regulations governing the employees of
the establishment), lay-off, strike or a lock
out or cessation of work not due to any
fault of the employee, whether such
uninterrupted or interrupted service was
rendered before or after the commencement
of this Act;

 2. Where an employee (not being
an employee employed in a seasonal
establishment) is not in continuous service
within the meaning of clause (1) , for any
period of one year or six months, he shall
be deemed to be in continuous service
under the employer -

 a. For the said period of one
year, if the employee during the period of
twelve calendar months preceding the date
with reference to which calculation is to be
made, has actually worked under the
employer for not less than -

 i. One hundred and ninety days,
in the case of an employee employed below
the ground in a mine or in an establishment
which works for less than six days in a
week; and
 ii. Two hundred and forty days, in
any other case;
10 All. U.P. Bhumi Sudhar Nigam Thru. Managing Director Vs. Appellate Authority Under P.G.
 Act Lko. & Ors.
887
 b. For the said period of six
months, if the employee during the period
of six calendar months preceding the date
with reference to which the calculation is to
be made, has actually worked under the
employer for not less than

 i. Ninety five days, in the case of
an employee employed below the ground in
a mine or in an establishment which works
for less than six days in a week; and

 ii. One hundred and twenty days,
in any other case.

 Explanation - For the purposes of
clause (2), the number of days on which an
employee has actually worked under an
employer shall include the days on which -

 i. He has been laid-off under an
agreement or as permitted by standing
orders
made
under
the
Industrial
Employment (Standing Orders) Act, 1946
(20 of 1946), or under the Industrial
Disputes Act, 1947, or under any other law
applicable to the establishment;

 ii. He has been on leave with full
wages, earned in the previous year;

 iii. He has been absent due to
temporary disablement caused by accident
arising out of and in the course of his
employment; and

 iv. In the case of a female, she
has been on maternity leave, so, however,
that the total period of such maternity leave
does not exceed such period as may be
notified by the Central Government from
time to time;

 3. Where an employee, employed
in a seasonal establishment, is not in
continuous service within the meaning of
clause (1), for any period of on year or six
months, he shall be deemed to be in
continuous service under the employer for
such period if he has actually worked for
not less than on which the establishment
was in operation during such period."

 While Section 2 (f) describes
"employer" which is as under : -

 `2 (f) "employer" means, in
relation to any establishment, factory,
mine, oilfield, plantation, port, railway
company or shop -

 (i) belonging to, or under the
control of, the Central Government or a
State Government, a person or authority
appointed by the appropriate Government
for
the
supervision
and
control
of
employees, or where no person or authority
has been so appointed, the Head of the
Ministry or the Department concerned,

 (ii) belonging to, or under the
control of, any local authority, the person
appointed, the chief executive officer of the
local authority,

 (iii) in any other case, the person,
who, or the authority which, has the
ultimate control over the affairs of the
establishment,
factory,
mine,
oilfield,
plantation, port railway company or shop,
and where the said affairs are entrusted to
any other persons, whether called a
manager, managing director or by any
other name, such person;

16. Terms and conditions of
employment of the private respondents are
evident by means of various agreements
entered into between the parties from time
to time. Act of 1972 does not talk of salary
888 INDIAN LAW REPORTS ALLAHABAD SERIES
but the Payment of Gratuity Act, 1972 has
cautiously used the word "wages" and has
linked the same with the terms and
conditions of employment.

17. The terms and conditions of
employment are evident from the contract.
Thus, the services of opposite party no.3
would be deemed to be a fixed service as
contemplated under Section 2 A of the Act
of 1972 and the fixed amount paid to him
would be included within the ambit of
"wages" as described under Section 2 (s) of
the Act.

18. The term "completed year of
service" and "continuous service" as
defined under Section 2 (b), 2 (c) and 2 A
of the Act of 1972 also lead to only one
interpretation that the employment of the
opposite party no.3 has to be treated as
continuous employment.

19. The Apex Court in the case of
Ahmedabad Pvt. Primary Teachers'
Assn Vs. Administrative Officer and
Others, (2004) 1 SCC 755, has ruled as
under :-

 "6. The Act is a piece of social
welfare legislation and deals with the
payment of gratuity which is a kind of
retiral benefit like pension, provident fund
etc. As has been explained in the
concurring opinion of one of the learned
Judges of the High Court ?gratuity in its
entymological sense is a git, especially for
services rendered, or return for favours
received?. It has now been universally
recognized that all persons in society need
protection against loss of income due to
unemployment arising out of incapacity to
work due to invalidity, old age etc. For the
wage- earning population, security of
income, when the worker becomes old or
infirm, if of consequential importance. The
provisions contained in the Act are in the
nature of social security measures like
employment insurance, provident fund and
pension. The Act accepts, in principle,
compulsory payment of gratuity as a social
security
measure
to
wage-
earning
population in industries, factories and
establishments.

 7. Thus, the main purpose and
concept of gratuity is to help the workman
after retirement, whether retirement is a
result of rules of superannuation or
physical disablement or impairment of vital
part of the body. The expression ?gratuity?
itself suggests that it is a gratuitous
payment
given
to
an
employee
on
discharge,
superannuation
or
death.
Gratuity is an amount paid unconnected
with any consideration and not resting
upon it, and has to be considered as
something freely, voluntarily or without
recompense. It is a sort of financial
assistance
to
tide
over
post
retiral
hardships and inconveniences."

 In the case of Management of
Goodyear India Limited (supra), the Apex
Court has ruled as under :-

 "..... Gratuity will have to be paid
to all those persons whose employment
came to an end after the coming into force
of the Act for that period during which he
came within the definition of an employee
within the meaning of Section 2 ( e ) of the
Payment of Gratuity Act. To hold otherwise
may render a whole class of persons who
all their lives got wages of less than
Rs.1000/- per month, but on the eve of their
retirement
started
getting
wages
of
Rs.1000/- per month. Surely that could not
have been the intention of Parliament. We
think the only reasonable way of construing
10 All. Shivam Yadav Vs. State of U.P.
889
Section 4 in the light of the definition of
employee in Section 2 ( e ) is to hold that a
person whose services are terminated for
any of the reasons mentioned in Section 4
(1), after the coming into force of the Act is
entitled to the payment of gratuity, if he has
rendered continuous service for not less
than five years, for that period during
which he has satisfied the definition of
employee under Section 2 (e ) of the Act."

 Having considered the aforesaid
dictum of the Apex Court as well as the
provisions of the Act, the inevitable
conclusion is that opposite party no.3 is
entitled for gratuity as he has rendered
more than five years of continuous service.
I find no illegality in the orders passed by
the Prescribed Authority as well as by the
Appellate Authority. Learned counsel for
the
petitioner
could
not
raise
any
substantial legal point to indicate that the
order suffers from any illegality in any
manner.

 The writ petition is devoid of
merit. It is accordingly dismissed."

20. Learned counsel for the
respondent have also relied upon the
judgment of this Court passed in the Writ
Petition No.310 (MS) of 2010; U.P.
Bhumi Sudhar Nigam T.C./19-B Vibhuti
Khand, Gomti Nagar, Lucknow vs.
Appellate Authority and Others where
similar controversy had arisen and the
orders of the controlling authority and
appellate authority were assailed and this
Court after considering the facts had
dismissed the writ petition.

21. Parties have not disputed that
the facts are similar and, hence, the ratio of
the said case would duly apply to the facts
of the present case also.
22. Accordingly, this Court is of
the considered view that there is no
infirmity in the impugned orders passed by
the
controlling
authority
or
by
the
Appellate Authority which may require
interference of this Court under Article 226
of the Constitution of India.

23. It is noticed that once the
judgment was available before the
authorities as rendered by this Court in
Writ Petition No.310 (MS) of 2010
[U.P. Bhumi Sudhar Nigam T.C./19-B
Vibhuti
Khand,
Gomti
Nagar,
Lucknow vs. Appellate Authority and
Others] then on the same facts multiple
writ petitions against the employees
without any discernible facts or law
should not have been filed. Such a
practice has already been deprecated by
the Hon?ble Apex Court where such
petitions have been held to be mere
certificate proceedings only to obtain
stamp of the Court and, accordingly, the
petition is dismissed.
----------
(2024) 10 ILRA 889
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 12638 of 2024

Shivam Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Atipriya Gautam, Jay Vishwanath Pandey,
Sr. Adv., Vinod Kumar Mishra

Counsel for the Respondents:
G.A.