Gujarat High Court
C R Gandhi vs State Of Gujarat on 9 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11464/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11464 of 2013
C R GANDHI
Versus
STATE OF GUJARAT
Appearance:
MS TEJAL A VASHI(2704) for the PETITIONER(s) No. 1
(MR J V BHAIRAVIA)(156) for the RESPONDENT(s) No. 3
ADVOCATE NOTICE UNSERVED(82) for the RESPONDENT(s) No. 3
MR DEVNANI AGP for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 09/04/2018
ORAL ORDER
1. Heard Ms. Vashi, learned advocate for the petitioner and Mr. Devnani, learned AGP.
2. Learned advocate for the petitioner submitted that present petition came to be decided vide order dated 3.11.2017. The Court vide said order pronounced decision with regard to petitioner's claim for retiral benefits viz. G.P.F., leave salary, gratuity and compassionate pension as well as suspension allowance.
3. The original petitioner, thereafter, carried the decision in appeal (Letters Patent Appeal No. 119 of 2018).
4. After considering appeal, Hon'ble Division Bench has, being of the view that any reason with regard to the decision Page 1 C/SCA/11464/2013 ORDER touching the claim for gratuity is not recorded, remanded the petition for reconsideration and fresh decision so far as said limited issue and limited claim viz. gratuity, is concerned.
5. Learned advocate for the petitioner submitted that in view of the order dated 2.2.2018 by Division Bench in Letters Patent Appeal No. 119 of 2018, in this remand proceedings, single issue and limited claim i.e. with regard to petitioner's claim for gratuity, is required to be examined and decided.
6. So far as said claim viz. for gratuity is concerned, learned advocate for the petitioner submitted that since the petitioner was compulsorily retired from service, there is no provision under GCSR which provide for gratuity in case of compulsory retirement and that therefore petitioner's claim for gratuity should be examined in light of the Payment of Gratuity Act. It is submitted that the petitioner has raised said claim under Payment of Gratuity Act. With said submission learned advocate for the petitioner placed reliance on the provision under Payment of Gratuity Act.
Page 2 C/SCA/11464/2013 ORDER She submitted that in view of the provision under the said Act the petitioner is entitled for gratuity inasmuch as before he came to be compulsory retired the petitioner had rendered minimum service required for eligibility under the Act. She submitted that the petitioner rendered service for more than 5 years before the respondent compulsorily retired the petitioner and therefore, the petitioner should be paid gratuity in accordance with the provisions under the Act.
7. That is sole contention raised by Ms. Vashi, learned advocate for the petitioner (in this remand proceedings) so far as petitioner's claim for gratuity is concerned.
8. Any other contention to support and justify the claim for gratuity is not raised.
9. At the outset it is necessary to mention that at the time when submissions by the parties contesting Special Civil Application No.11464 of 2013 were heard any contention related to claim for gratuity including the submission with regard to applicability of the Payment of Gratuity Act 1972 (hereinafter referred to as the 'Act'), to the establishment Page 3 C/SCA/11464/2013 ORDER where the petitioner was employed as well as eligibility / entitlement of the petitioner under the provision of the Act, was never raised by the petitioner, before this Court.
10. Therefore, question of dealing with any contention or submission with regard to applicability of the Act and / or maintainability of the claim in light of provisions of said Act or the claim for gratuity under the Act, did not arise before this Court.
11. Unfortunately this aspect does not appear to have been mentioned before Hon'ble Division Bench while raising contention that the claim for gratuity is rejected without reason and discussion. The said submission seems to have been made before Hon'ble Division Bench without disclosing and without clarifying and without declaring that that any submission with regard to claim for gratuity under the Act was not raised before this Court.
11.1 However today while arguing this petition, the only contention which is raised before this Court is that there is no provision under Gujarat Civil Services Rules ('GCSR' for short) for gratuity in case where employee is compulsory Page 4 C/SCA/11464/2013 ORDER retired, and that therefore petitioner raises claim under Payment of Gratuity Act.
11.2 In view of the fact that today at the time of hearing of this petition above mentioned sole contention is raised and to justify the claim reliance is placed on provision under Payment of Gratuity Act, the first ground in light of which the said claim deserves to be rejected is that if the petitioner seeks gratuity under and as per the provisions under the Act, then statutory remedy is provided under the Act which requires the employee, who claims gratuity on the allegation that though he is entitled to gratuity in accordance with and under the Act however gratuity is not paid by the employer, is obliged to avail statutory alternative remedy prescribed under the Act by virtue of Section 7 read with Section 4 of the Act. The petitioner has not availed statutory alternative remedy.
11.3 Therefore in first instance the petitioner should approach statutory remedy.
11.4 The second reason for not entertaining the contention on the strength of the provision under the Act is the fact Page 5 C/SCA/11464/2013 ORDER that the petitioner seeks to raise the claim before this Court, for the first time, in a petition under Article 226 which is filed in 2013 i.e. after gross delay that too without first approaching Controlling Authority under the Act, and that therefore the petition does not deserve to be entertained.
12. Third reason in light of which the claim does not deserve to be entertained, at that stage before this Court, is the fact that the petitioner came to be compulsory retired in March 1999.
12.1 For almost 13 years the petitioner did not raise the claim (for gratuity) before the Court or the authority and also did not approach the authority under the Act for as many as 13 years.
13. Under the circumstances, the claimant would have to first get the delay condoned before the Controlling Authority by placing, for Controlling Authority's consideration, appropriate reasons for not preferring the claim within prescribed time limit.
13.1 It is the Controlling Authority who is conferred with Page 6 C/SCA/11464/2013 ORDER the power to condone delay, to the extent permissible under the Act.
13.2 Since the petitioner has not approached the Controlling Authority and has not offered any explanation with regard to gross and inordinate delay in raising claim before statutory remedy under the Act, the claim does not deserve to be entertained in writ jurisdiction.
14. Now, so far as the attempt of learned advocate for the petitioner to rely on the provision of payment of Gratuity Act is concerned it is necessary to reiterate that such contention was never raised in Special Civil Application No. 11464 of 2013 which was heard before and decided by this Court. 14.1 Now so far as the attempt by learned advocate to raise and support the claim for gratuity is concerned it is now submitted that the petitioner claims gratuity in accordance with provision under the Act.
14.2 The claim and the submission are not tenable. It would be appropriate to turn to relevant provision. 14.3 At this stage it is relevant to take into account the Page 7 C/SCA/11464/2013 ORDER provision under Section 1 of the Act which contains provision with regard to applicability of the Act. Sub-section (3) of Section 1 of the Act provides that:-
"(3) It shall apply to--
(a) every factory, mine, oilfield, plantation, port and railway company;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf."
14.4 According to clause (a) of sub-section (3) of Section 1 of said provision, the Act would apply to the factory, mines, oil fields, plantation, port and railway board. 14.5 Undisputedly the petitioner was not employed in any factory, mines, oil fields, plantation, port or railway board. 14.6 Further according to the clause (b) of sub-section (3) the Act would apply to "shop" or "establishment" within the meaning of any law in force in the State where 10 or more persons are employed.
14.7 Undisputedly the petitioner was not employed in a shop.
15. So far as expression establishment is concerned the said term is not defined under the Act. However said clause Page 8 C/SCA/11464/2013 ORDER employs the term establishment with reference to "establishment" within the meaning of law for the time being in force in relation to shops and establishment in a State. 15.1 The law, in force in State of Gujarat in relation to shops and establishment is "Bombay Shops and Establishment Act". The expression 'establishment' is defined under the said Act in Section 2(8) which reads thus:-
"2(8) Establishment means a shop, commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement, or entertainment to which this Act applies and includes such other establishment as the [State] Government may, by notification in the Official Gazette, declare to be an establishment for the purposes of this Act."
15.2 The petitioner was not employed in shop or residential hotels or restaurant or eating house or theatre or place of public amusement or entertainment.
15.3 Thus, it follows that the petitioner was not employed in any undertaking / establishment to which the Act applies. It is however necessary to also take into account the term "commercial establishment".
15.4 The expression 'commercial establishment' is also defined under the said Act which reads thus:-
"2(4) Commercial Establishment means an establishment which carries on any Page 9 C/SCA/11464/2013 ORDER business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes a society registered under the Societies Registration Act, 1860 and a charitable or other trust, whether registered or not, which carries on, [whether for purposes of gain or not] any business, trade or profession or work in connection with or 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."
15.5 On plain reading of the said term it becomes clear that the petitioner was not employed in any of the undertaking which would fall under the purview of above mentioned definition of the term "commercial establishment". 15.6 Thus, the petitioner has failed to make out any case to demonstrate that he was employed in establishment where the Payment of Gratuity Act would be applicable. 15.7 Now it is relevant to take into account the definition under Section 2(e) of the Act which defines term 'employee'. The said Section 2(e) reads thus:-
(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 or 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.]"
15.8 With reference to said definition, it is necessary to mention at this stage that during tenure of his service the petitioner was employed as "Social Welfare Officer" in the office of Director, Developing Caste Welfare Department.
Page 10 C/SCA/11464/2013 ORDER
16. Undisputedly, the petitioner was regular and permanent employee holding the post of Social Welfare Officer with the respondent no.2.
17. In light of this undisputed background when the provision under Section 2(e) of the Act which defines term employee, is examined then it becomes clear that the petitioner would not fall within purview of said Section 2(e) of the Act inasmuch as the petitioner was not employed in any kind of work manual or otherwise in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company or shop, or other establishment to which this Act applies
18. Further Section 2(e) specifically excludes the person employed in Central Government or State of Gujarat i.e. person who hold post under Central Government or State Government is governed by any rule providing Payment of Gratuity.
19.. As mentioned above the petitioner herein was regular and permanent employee on the post of Social Welfare Officer with the respondent no. 2.
Page 11 C/SCA/11464/2013 ORDER 19.1 Thus, being a person who held post in the State of Gujarat, the petitioner would not come within purview of section 2(e) of the Act.
19.2 The said Section 2(e) of the Act also provides that the rules applicable to the post under the Central Government or the State Government should provide for gratuity.
20. In this context it is relevant to note that undisputedly the provision under GCSR applies to the department (respondent No.2) where the petitioner was employed and he held post of Social Welfare Officer.
20.1.The said GCSR contains provision with regard to gratuity. The provisions related to gratuity are found under Rule 80(1) of GCSR.
20.2 The said provision also prescribes that in cases where the employee is dismissed or discharged or compulsory retired for misconduct then the said employee shall not be paid pension and / or gratuity.
20.3 Meaning thereby, the provision under Rule 80(1) of Page 12 C/SCA/11464/2013 ORDER GCSR contains provision related to gratuity and it provides for gratuity to the employees covered within the purview of GCSR.
21. In this view of the matter the petitioner would not come within the purview of Section 2(e) and the term "employee".
He falls outside the purview of said section / term. He falls within the purview of excluded category. The petitioner (a) held post in State Government (b) the Rules applicable to the said post (GCSR) provide for gratuity (c) he was not employed in an "establishment" to which the Act applies. Thus, he does not fulfill the condition for eligibility / entitlement under the Act.
21.1 According to the said provision, the employees covered under GCSR are eligible for gratuity at the rate prescribed under GCSR however in case of discharge or dismissal or compulsory retirement for misconduct, the employee loses eligibility / entitlement for gratuity and he renders himself / his right for gratuity, "for forfeiture"
21.2 It will not be out of place to mention at this stage that in Special Civil application No. 11464 of 2013 the petitioner Page 13 C/SCA/11464/2013 ORDER claims all benefit including pensionary benefit by invoking provision under GCSR.
21.3.Thus, on one hand the petitioner invokes provision of GCSR to claim all benefits payable under GCSR whereas on the other hand the petitioner invokes the provision under Payment of Gratuity Act, 1972 to claim gratuity. 21.4 Even if it is assumed that the petitioner can invoke provision under the Act to claim gratuity though he is covered under GCSR then also, for reasons mentioned above the petitioner is not entitled for gratuity under the Payment of Gratuity Act, 1972.
21.5 However, in view of the fact that (1) the petitioner was regular and permanent employee holding post of Social Welfare Officer with respondent no. 2 and (2) there are rules in GCSR which provide for payment of gratuity to employees covered within the purview of GCSR, the petitioner would not fall within term under Section 2(e) of the Act. 21.6 Actually, important fact of the case is that the petitioner was compulsorily retired from service. According Page 14 C/SCA/11464/2013 ORDER to the applicable Rules, by virtue of his post, position, length of service, other criteria he was eligible for gratuity under GCSR, until the consequence / action (compulsory retirement) fell on the petition. The said action rendered gratuity liable for "non-payment" or forfeiture. Though he was, prior to the action viz. compulsory retirement, eligible for gratuity he became / was rendered "disentitled" or "disqualified" to "receive" gratuity. In this view of the matter it cannot be said that during his employment / service he was not eligible for gratuity and / or the Rules applicable to his post or the establishment where he worked do not provide for gratuity. Actually Rules provide for gratuity and also provide for "forfeiture". However, for the purpose of Section 2(e) of the Act it cannot be said that Rules do not provide for gratuity. Thus, the petitioner does not come within the purview of Section 2(e), rather he falls in the excluded category under Section 2(e) of the Act.
22. From foregoing discussion it becomes clear that the establishment where the petitioner employed is not covered under the purview of Section 1(3)(a) or (b) or (c) of the Act and the said Act would not be applicable to the said Page 15 C/SCA/11464/2013 ORDER establishment and in view of the fact that the petitioner does not fall within the purview of Section 2(e) of the Act, and that therefore even otherwise he would not be entitled to raise claim under the Act.
22.1 Thus, the said claim and the submission fail. 22.2 Any other contention to justify the claim for gratuity under the Act or even otherwise is not raised. 22.3 Therefore question of dealing with any other submission or contention does not arise. 22.4 In view of the observations in paragraph No. 5.1 and 5.2 read with paragraph No. 7.0 of the decision dated 2.2.2018 in Letters Patent Appeal No. 119 of 2018 the Division Bench remanded matter only for limited issue and consideration i.e. claim for gratuity. 22.5 Under the circumstances any aspect other than the petitioner's submission with regard to the claim for gratuity is not required to be considered.
22.6 As mentioned above any contention other than above Page 16 C/SCA/11464/2013 ORDER recorded contention with regard to the claim for gratuity is not raised.
22.7 For reasons mentioned above the submissions raised by the petitioner on strength of the provision under Payment of Gratuity Act, 1972 fail and are not sustainable. Therefore, said claim stands rejected.
With aforesaid clarifications the petition stands disposed of.
Orders accordingly.
(K.M.THAKER, J) SURESH SOLANKI Page 17