Calcutta High Court
Sakal Gore vs Secretary, Bar Library Club, High Court on 3 July, 2000
Equivalent citations: (2001)ILLJ1594CAL
Author: Satyabrata Sinha
Bench: Satyabrata Sinha
JUDGMENT
1. Leave in terms of prayer (a) is granted.
The question which arises for consideration in this appeal is as to whether the Payment of Gratuity Act, 1972 is applicable in relation to Bar Library Club. The Payment of Gratuity Act, 1972 applies 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 and (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. Clauses (a) and (d) of the said provisions admittedly can have no application in the instant case.
2. The question raised herein is whether the respondent is a 'shop1 or an 'establishment' within the meaning of the provisions of West Bengal Shops & Establishments Act, 1963. The word 'shop' has been defined in Section 2 Sub-section (13) of the said Act which reads thus-
'13. "Shop" The basic ingredients of a Shop under the Act are:
(1) Must have a premises:
(a) offices, store-rooms, godowns etc. whether on the same premises or not but if used in connection with sale or storage for sale; (2) Sale of services or commodities or articles to Customers or if trade and business carried on; (3) The State Government, may, by notification declare any premises as "Shop" under the Act.'
3. The word "Establishment" has been defined in Section 2 Sub- section (5) of the West Bengal Shops & Establishments Act, 1963 which reads thus-
'(5) "Establishment" means a commercial establishment or an establishment for public entertainment or amusement;'
4. It is not in dispute that the Bar Library Club is merely an association of a section of the legal practitioners practising in this Court. The said Association has neither been set up with a profit motive nor has been set up for commercial venture. A bare perusal of the definition of 'shops' and 'establishments' as quoted (supra) would clearly demonstrate that for the purpose of attracting the aforementioned provisions certain trade and business activities must be carried on. If the profession of a legal practitioner cannot come within the purview of the definition of the aforementioned provisions we fail to understand as to how an Association of the legal practitioners would be. In fact earlier an attempt had been made to include the chambers of the legal practitioners within the purview of the definition of the commercial establishment. The vires of the said provisions came up for consideration before this Court in Dipti Kumar Basu v. Chief Inspector, Shops & Establishments and Anr., 90 CWN 353, and this Court had declared the said provisions as ultra vires. A similar matter was considered by the Bombay High Court in Narendra Keshrichand Faladi and Anr. v. State of Maharashtra, reported in 1985-II-LLJ-24, wherein also it was held that the establishment of a legal practitioner does not come within the purview of the word 'establishment' under the Bombay Shops and Establishments Act, Yet again the same principles have been reiterated in Dorab Pirojsha Signaporia v. The President and Appellate Authority of the Industrial Tribunal, Bombay, reported in 1986-II-LLJ 501. The matter also stands covered by a decision of the Apex Court in V. Sashidharan v. Peter Karunakar, .
5. Mr. Sarkar, learned Counsel appearing on behalf of the petitioner however submits that the learned Trial Judge while allowing the writ application filed by the respondent herein committed an error in entertaining the application in view of the fact that an appeal was maintainable against the order passed by the Controlling Authority under the provisions of the Payment of Gratuity Act. It may be so. But the fact remains that the matter had been entertained and was pending consideration before the learned trial Judge for more than two years. It is now well settled in view of several decisions of the Apex Court that when the matter has been entertained, the same should not be normally thrown out on the ground of availability of the alternative remedy. Reference in this connection may be made to L. Hriday Narain v. ITO, Bareilly, . Yet again in Whirlpool Corporation v. Registrar of Trademarks, , the Apex Court has clearly laid down the law in the following terms:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain: restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case laws on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
6. As in view of the finding on jurisdictional fact as noticed (supra) the learned trial Judge as also this Court have held that the Controlling Authority under the Payment of Gratuity Act being the respondent No. 2 herein had no jurisdiction in the matter, the writ application was clearly maintainable. A jurisdictional error may be rectified by this Court by exercising the power under the judicial review whether the authority lacked inherent jurisdiction or has committed jurisdictional error while exercising his power.
For the reasons aforementioned there is no merit in this appeal which is dismissed.
7. Before parting with the case Mr. Sen very fairly states that on the earlier occasion the members of the Bar Library Club had voluntarily donated by way of ex-gratia payment to the appellant herein. The appellant therefore may file an appropriate representation before the General Secretary of the Bar Library Club for the said purpose.
8. The appeal, treating the same as on the day's list, and the application are disposed of accordingly.
9. All parties are to act on a xeroxed certified copy of this judgment, to be delivered on priority basis, on the usual undertaking.