- (1.) 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 Section 7(4)(c) and computation under Section 3-A of the Act, along with interest at the rate of 12 percent per annum.
(2.) Counsel for the petitioner submits that, however, the issue raised in the instant petition has been considered by this Court in judgment Municipal Board, Gangapur City and Anr. v. Salim Khan and Anr., 2000 86 FLR 793 , 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 this Court has not bern 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 Section 5 of the Act of 1972, which indisputable 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 Section 5 of the Act of 1972 and in such circumstances, the employees are entitled to payment of gratuity as held under Rules of 1969.
(3.) 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 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 Section 5; in absence whereof no deemed presumption by legal fiction can be claimed.;