Gujarat High Court
Wadhwan Mahajan Panjarapole vs B.D. Bhavasar And Ors. on 15 February, 1994
Equivalent citations: [1995(70)FLR457], (1994)2GLR1418
JUDGMENT Pandya, J.
1. The petitioner is a Panjarapole operating within the District of Surendranagar in and around Wadhwan City. It is dealing mainly with taking care of disabled animals as set out in its Constitution annexed to the petition as Annexure 'A'-page 13. A question arose whether its employee is entitled to payment of gratuity under the Act having similar name Ponimum Act, 1972. The authority under the Act has decided in favour of the employee and the matter was carried in Appeal provided under the said Act and there also, the present petitioner lost.
2. As could be expected in the aforesaid background, the moot question agitated in the petition is whether the said Gratuity Act of 1972 applies to the petitioner or not?
3. In Sub-section (3) of Section 1 the applicability of the Act is specified and there are three sub-clauses (a), (b) and (c) mentioned therein. Admittedly, if at all the petitioner is covered by the Act, it will fall within the purview of clause (b) of sub-section (3) of Section 1 of the said Act. The said clause (b) reads as under :
"Section 1(3)(b) :- Every shop or establishment within the meaning of any law for the time being in force in relation to Shops and Establishment in a State in which ten or more persons are employed, or were employed, on any day of the preceding 12 months;"
The aforesaid definition refers to an establishment within the meaning of any State law. For this purpose, reference will have to be made to the Bombay Shops and Establishment Act, 1948. The commercial establishment to which the Act applies is in sub-section (4) of Section 2 which reads as under :
"Section 2(4) :- Commercial establishment means an establishment who carries on any business, trade or profession or any work in connection with a incidental or ancillary to any business, trade or profession and includes a Society registered under the Societies Registration Act, 1860 (XXI of 1860) and a Charitable or other trust, whether registered or not, which carries on whether for the purpose of gain or not any business, trade or profession or work in connection with a incidental or ancillary thereto but does not include a factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment".
4. The moment the aforesaid definition and statutory material is taken into consideration, it appears that the petitioner does have a very strong case.
5. However, learned Advocate Mr. Lakhia appearing for the respondent No. 3 had first referred to the decision reported in AIR 1978 SC 548. The learned Judges of the Supreme Court were dealing with a question under the Industrial Disputes Act and its applicability to non-profit making organisations amongst other organisations. It is the famous case of Bangalore Water Supply and Sewerage. The learned Judge Shri V. R. Krishna Iyer for the Bench has set out that profit motive is never a consideration and the underlying idea of rendering service whether to human being or to dum animals both can be taken into consideration and philanthrophy motive by itself will not be sufficient to take the organisation away from the purview of the idea. On that line, according to learned Advocate Mr. Lakhia the present matter should also be approached.
6. However, as all industries need not be establishments as understood under the said Gratuity Act or under the said Bombay Act, and when there are special definitions contained in both the enactments, the question raised in the present petition will have to be resolved with reference to the respective statutes which specifically apply to the claim of Payment of Gratuity.
7. With reference to the statutory material if it is found out that the establishment like Panjarapole if at all it is referred to as an establishment, will not fall within the definition of commercial establishment obviously the Gratuity Act will not apply to the petitioner. No doubt, learned Advocate Mr. Lakhia has drawn my attention to the fact that purposes of gain are to be overlooked and when Bombay Act applies to the Societies registered under the Societies Registration Act, 1860 or a Trust whether registered or not with reference to the excluding part of the definition given in the latter part of sub-section (4) the petitioner Panjarapole should be treated as an establishment.
8. I do not agree with learned Advocate Mr. Lakhia because, the Charitable or other Trusts whether registered or not or Society under the said 1860 Act has to be shown as engaged in activity related to the business, trade, profession or work in connection with or incidental or ancillary thereto.
9. When it could not be shown that Panjarapole is doing either business or trade or profession or any work in connection with or incidental or ancillary to it, obviously, it will not be covered by that definition.
10. Once the matter is appreciated in this light, the question involved in the petition has to be answered in favour of the petition. In the result, the petition is allowed. Pursuant to earlier order, an amount of Rs. 3,462/- is deposited in this Court. The amount with accrued interest, if any, is ordered to be refunded to the petitioner or its learned Advocate. Rule is made absolute. No order as to costs.
11. Petition allowed.