Municipal Council Udaipur vs Mohd. Safi & Ors on 20 January, 2010

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    S.B. CIVIL WRIT PETITION NO.5681/2009

         Municipal Council, Udaipur v.

                   Mohd Safi & ors.

Date of order:20th January, 2010

         HON'BLE MR JUSICE AJAY RASTOGI

Mr B.S. Charan, for the petitioner

    Instant writ petition has been filed by

the Municipal Council, Udaipur assailing the

order   passed     by   the     Controlling          Authority

under Payment of Gratuity Act, 1972, awarding

payment of gratuity to respondent-employee in

terms   of   sec.7(4)(c)        and    computation          under

sec.3-A of the Act, along with interest at

the rate of 12 percent per annum.



    Counsel for the petitioner submits that,

however,     the   issue      raised    in    the       instant

petition has been considered by this Court in

judgment     reported      in    2000       (1)      RLR     742-

Municipal Board, Gangapur City & anr v. Salim

Khan and anr; holding that employees of the

Municipal     Board/Council           are     entitled          to

payment of gratuity under the Act of 1972 but

submission,    which    he      wants    to   make         before
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this Court has not been considered and that

requires examination by this Court.



      The bone of contention of counsel for the

petitioner        is    that,       however,       there         is    a

provision for exemption of the establishment

under notification issued by the appropriate

government in exercise of powers under sec.5

of the Act of 1972, which indisputably, has

not been published so far; but once the State

Government              has            framed           "Rajasthan

Municipalities          (Contribution            to      Provident

Fund    &    Gratuity)        Rules,      1969",       it    may       be

considered        to    be    a   deemed       exemption         under

sec.5       of    the    Act      of     1972     and       in    such

circumstances, the employees are entitled to

payment of gratuity as held under Rules of

1969.



      In the opinion of this Court submission

of    the    counsel     is       without       merit,      for       the

reason that very Rules, on account of which

exemption from payment of gratuity is sought

to be deemed, are of 1969 while the Central

Act    came      into   force      in    the     year     1972        and
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after     it   has    come    into      force,      if      the

appropriate     government      wants    to     grant       any

exemption      notification     is    required        to     be

issued in exercise of powers under sec.5; in

absence     whereof    no    deemed     presumption          by

legal fiction can be claimed.



      So far as other questions are concerned,

since   they    are   already    considered        by      this

Court in the judgment of which reference is

made supra, this Court finds no substance in

present petition.

      The petition stands dismissed.



                                      [AJAY RASTOGI],J.

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