Punjab-Haryana High Court
Joginder Singh vs Shiromani Gurdwara Prabandhak ... on 28 November, 2013
Author: Mahesh Grover
Bench: Mahesh Grover
C.W.P. No.7414 of 2001 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.W.P. No.7414 of 2001 (O&M)
DATE OF DECISION : 28.11.2013
Joginder Singh PETITIONER
VERSUS
Shiromani Gurdwara Prabandhak Committee, Sri Amritsar
... RESPONDENT
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Ms.Vanita Sapra Kataria, Advocate for the petitioner.
Shri R.S.Khosla, Advocate for the respondent.
MAHESH GROVER, J.
This writ petition along with numerous others has been pending in this Court on the premise of a similarity and commonality of question of law involved in all of them. The questions of law which were propounded are as below :-
(1) Whether the services of an employee of the Shiromani Gurdwara Parbandhak Committee (hereinafter referred to as the S.G.P.C.) can be terminated without following the process of law contained in the statute i.e. the Sikh Gurdwara Act, 1925 (hereinafter referred to as the Act) ? (2) Dass Ghanshyam 2013.12.12 13:52
Whether the proceedings arising out of the said order of termination I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -2- are amenable to an alternative relief under Section 142 of the Act ?
Upon due consideration of the matter, I am of the opinion that the aforesaid issues are no longer res integra in view of the judgment of the Hon'ble Supreme Court rendered in Mewa Singh v. Shiromani Gurdwara Prabandhak Committee J.T. 1998(8) S.C. 503 wherein the Hon'ble Supreme Court observed as follows :-
"7. A mere reading of various provisions of the Act and rules set out above unmistakably show that SGPC is a creation of the statute and Service Rules framed by it in exercise of its statutory power have force of law. Any violation of the provision of the Act and the Rules will certainly make SGPC amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. We do not find any basis for the SGPC to contend that no writ can be issued against it even if its action is contrary to the provision of law and the Rules framed thereunder. SGPC is a creation of the statute. It has to act within the four corners of the law constituting it and the rules framed by it under the powers conferred upon it under the Act. We do not think any discussion is needed to dispel this argument by the SGPC that it is immune from the writ jurisdiction of the High Court. Language of Article 226 does not admit of any limitation on the powers of the High Court for the exercise of its jurisdiction thereunder. Subba Rao, J. in Dwarkanath v. ITO (1965 (3) SCR 536) said that Article 226 "is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -3- language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised."
8. We have examined the provisions of Section 142. It does not provide any alternative remedy to an employee of the SGPC, who has been dismissed or whose services have been terminated. section 142 does not cover any such type of case. In our view High Court in Ajaib Singh case rightly held that section 142 of the Act was inapplicable in the case and that petitioner therein could not seek remedy under Section 142, which does not provide any alternative remedy."
In view of the above, it is now apposite to decide all the related matters individually to see whether any cause of grievance personal to the petitioner survives, as it would have to be determined whether the principles of natural justice have been complied with and the procedure enshrined in the statute intended to ensure the observance of the principles of natural justice have been violated or not.
The petitioner who was an employee of Gurdwara Manji Sahab since 4.8.1982 as a Store Keeper and confirmed as such on 1.12.1984, superannuated from service on 22.7.1999. He prays for release of his gratuity and leave encashment which has been denied to him by the respondents on the ground that the petitioner did not complete 10 years of requisite service. The petitioner bases his claim on Rules 28 and 29 of the S.G.P.C. Service Rules which are extracted here below :-
"Rule 28 : Salary in lieu of Casual Leave credited. In case of any employee from Gurdwara service either on Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -4- retirement or on resignation shall be paid a salary of 6 months from the account of his privilege leave. The authority to make payment shall vest with Assistant Secretary/Additional Secretary/Secretary.
Rule 29 : Gratuity.
The employees of SGPC and other institutions under it (excepting educational institutions and employees of printing press and workers who are enjoying benefits under the Labour Act) those employees of gurdwara under Section 85 and Section 87 who have been transferred from gurdwaras of 85 and other concerned institutions or have been sent on deputation in the event of retirement or registration shall be paid gratuity from 1.12.1983 in the following terms :-
10 years service : 3 months salary 11 years service : 4 months salary 12 years service : 5 months salary 13 years service : 6 months salary 14 years service : 7 months salary 15 years service : 8 months salary 15 to 16 years service : 9 months salary 16 to 18 years service : 10 months salary 18 to 20 years service : 11 months salary 20 onwards years service : 12 months salary.
The power to grant gratuity shall vest with Assistant Secretary/Additional Secretary/Secretary. The payment of gratuity shall be paid on the basis of the salary drawn at the time of leaving the service. The employees who have been Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -5- terminated from service shall not be entitled to receive the payment of gratuity."
The respondents in turn, refute the claim with reference to these very rules and also certain developments such as the Gurdwara having been brought under the purview of Section 85 in the year 1998 by virtue of a notification of the Central Government and thus, it is pleaded that since the petitioner became an employee of the gurdwara within the meaning of Section 85 of the Act, after 1998 he had not completed 10 years of service in this regard even though he was an employee of Gurdwara which was managed by a local committee as contemplated under Section 87 of the Act prior to the said notification.
Learned counsel for the petitioner contends that the local committee was not functional and the effective control of Gurdwara Manji Sahab was taken over by the S.G.P.C. even prior to the issuance of a formal notification in 1998 as would be indicated by certain facts i.e. grant of regular pay scales to the employees of Gurdwara Manji Sahab vide resolution No.742 dated 18.6.1986. The control of Gurdwara Manji Sahab by the S.G.P.C. is also indicated from the subsequent transfer of the petitioner to a Gurdwara at Amritsar. It is sought to be contended that for all intents and purposes, the petitioner was an employee of the S.G.P.C. and therefore, the plea of the respondents that Gurdwara Manji Sahab was not within the purview of Section 85 of the Act and continued under the purview of Section 87 of the Act, would be of no avail to the respondents to justifiably deny the claim of the petitioner for gratuity.
The respondent has controverted the stand of the petitioner further by stating that apart from the notification of 1998, the resolution itself was passed by the S.G.P.C. taking over the direct management of Gurdwara Manji Sahab on 26.2.1990 and thus even if the best case of the petitioner is construed, then his service could have been considered to be under the Gurdwara under Section 87 of Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -6- the Act under the control of S.G.P.C. from this date onwards and the petitioner still does not complete 10 years of requisite service.
I have considered the arguments raised by the respective parties and would proceed to determine the issue as under :-
To understand the distinction between gurdwaras functioning under Section 87 of the Act, it would be pertinent to extract the said section :-
"87. Constitutions of committee not specially provided for.- (1) Every Committee shall consist of five members out of which one at least shall be a person belonging to the scheduled castes and shall be constituted as follows :-
(a) The Board shall nominate the members, with their written consent, of the committee of the Gurdwara or Gurdwaras, whose gross annual income does not exceed three thousand rupees, who shall be residents of the district in which the Gurdwara or one of the Gurdwaras to be managed by the Committee is situated:
Provided that the Board may, if it so decides, instead of nominating the members, manage the affairs of any such Gurdwara itself in accordance with the provisions of the Act.
(b) The Committee of Gurdwara or Gurdwaras, whose annual monetary income exceeds three thousand rupees, shall consist of four elected members and one member nominated by the Board who shall be resident of the district in which the Gurdwara or one of the Gurdwaras to be managed by the Committee is Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -7- situated.
If, in the election, the required number of members is not elected, the Board may nominate such number of persons as have not been elected so as to complete the Committee for such a Gurdwara or Gurdwaras ;
provided that the person or persons so nominated shall be the resident or residents of the district in which the said Gurdwara or gurdwaras are situated.
(2) If the Board fails to nominate a member or members of the Committee in accordance with the provisions of clause (a) or (b) the manager and if there is no manager, then Granthi or Granthis of Gurdwara or Gurdwaras shall either by himself or themselves or along with the nominated or elected member or members, if any, as the case may be, perform the duties of the Committee till such time as the Board nominates the required number of members of the Committee."
A perusal of Section 85 of the Act would indicate that they are notified gurdwaras identified primarily on the basis of a criteria of income and for which a notification is issued by the Central Government on the recommendations of the S.G.P.C. and rooted through the Sikh Gurdwara Tribunal, whereas Section 87 of the Act, refers to Gurdwaras which have a meager income of Rs.3000/- (now amended to Rs.2 lacs) or above. In this regard, a mechanism has been provided to oversee the functioning of such gurdwaras to be managed by Committees, the members of whom are either nominated if the income is less than Rs.3000/-, or elected if the income is beyond Rs.3000/-. Sub-section (2) of Section 87 provides that if the Board nominates a member or members in accordance with the Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -8- provisions of this section or if there is no manager, then the Granthi may manage a gurdwara under Section 87 of the Act till the time the Board nominates the required number of members to the Committee.
These two provisions of law essentially delineate the two kinds of gurdwaras contemplated, one which are notified and the other unnotified with meager incomes.
It is nowhere the case of the respondents that Gurdwara Manji Sahab which was initially a gurdwara under Section 87 of the Act, faced functional problems as envisioned under sub-section (2) although they have made a reference to some disputes persisting in the said gurdwara which prompted the S.G.P.C. to take control, but such a condition is not visualized in Section 87 of the Act at all. It only talks of nomination of members in the event of there being any functional discord.
The facts, on the other hand, indicate that the S.G.P.C. took control of the gurdwara in the year 1986 itself when it prescribed regular pay scales and took the control of not only the gurdwara, but also its complete functionality. This was followed by separate resolutions from time to time including the one passed in the year 1990 virtually ratifying an arrangement which took place in 1986. This arrangement was further ratified when a notification was issued by the Central Government in 1998.
For the aforesaid reasons, this Court is of the opinion that for all intents and purposes, Gurdwara Manji Sahab was taken over by the S.G.P.C. by weaning it away from the provisions of Section 87 altogether which fact was subsequently acknowledged and ratified by their conduct and given statutory recognition when the notification was issued in the year 1998.
In the considered view of this Court, the respondents cannot make any distinction of Gurdwara Manji Sahab being a gurdwara under Section 87 for Dass Ghanshyam 2013.12.12 13:52 I am the author of this document high court chandigarh C.W.P. No.7414 of 2001 -9- the aforesaid reasons when they themselves took over its control and management in the year 1986 which fact as indicated above, was merely acknowledged at a subsequent date granting it post-facto approval.
Suffice it to say that so far as the claim of the petitioner for gratuity and leave encashment is concerned, it cannot be defeated on this flimsy pretext that the gurdwara came under the provisions of Section 85 of the Act by virtue of the notification in 1998, whereas it continued to exist under the control of the S.G.P.C. since 1986 which control is not even envisaged in Section 87 of the Act, except to permit nomination of the members in the eventuality of a functional discord.
For the aforesaid reasons, this Court is of the opinion that the petitioner cannot be deprived of his right to gratuity and leave encashment as contemplated under rules 28 and 29 since Gurdwara Manji Sahab would squarely fall within the ambit of Section 85 of the Act for all intents and purposes.
The petition stands allowed. The gratuity and leave encashment be paid to the petitioner as expeditiously as possible, preferably within a period of two months from the date of receipt of a certified copy of this order.
(MAHESH GROVER)
November 28, 2013 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO
Dass Ghanshyam
2013.12.12 13:52
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