Calcutta High Court
Surendra Vikram Singh Agarwala vs Kanhaya Lal Agarwalla And Ors. on 25 July, 1995
Equivalent citations: (1999)IIILLJ404CAL
JUDGMENT Surya Kumar Tiwari, J.
1. This appeal arises out of the order passed by MR. JUSTICE UMESM CHANDRA BANERJEE, on December 12, 1994 in Civil Suit No. 702 of 1903.
2. One Babulal Agarwal died in the year 1973. Before his death, he executed a will and Testament whereby he created a trust for religious and charitable purposes. There was some dispute between Amrita Bibi. the widow of pre-deceased son of Babulal Agarwal and other heirs of Babulal Agarwal. The same was agitated in Civil Suit No. 702 of 1940. The suit was decided on February 6, 1944 whereby a comprehensive scheme was framed for administration of the trust. Besides other matters, the scheme provided for grant of pension and other facilities to the employees of the trust. The following provisions were made in the scheme:
"Office and Employees:
(a) The trustees at their discretion may grant to such of the employees of the Estate who have satisfactorily served with the Estate for a period of not less than 30 years, pension either by monthly payments or by payment of a lump sum.
(b) The pension granted to an employee in case of monthly payments should not ordinarily be more than one third of his pay and in case of lumpsum payment should not ordinarily be a sum more than four thousand rupees.
(c) The Trustees may at their discretion also pay gratuity to such members of the family of an employee dying during his service with the Estate as they think fit. The amount of such gratuity shall not ordinarily exceed one year full pay last drawn by such deceased employees".
3. The petitioner is a retired employee of the trust who claims that he has served the trust right from April 1, 1950 to March 31, 1993 and at the time of his superannuation, he was receiving a salary of Rs. 2322/- per month. As per terms of the scheme prepared by the High Court he is entitled to pension to the tune of one third of the last salary drawn by him and also entitled to receive gratuity as per rules, in accordance with the provisions of Payment of Gratuity Act, 1972. Inspite of the demand, the trustees failed to release the amount of pension and gratuity payable to him. Hence, the petitioner filed an application in the original suit decided in 1944 to direct the trustees to pay the amount of pension and gratuity with 18% interest per annum on the sum due.
4. The trustees in their affidavit-in-reply denied that the petitioner is entitled to any pension or gratuity.
5. The learned Judge of the trial Court was of the view that the petitioner was entitled to pension as well as gratuity and he, therefore, allowed the application and granted the prayers made by the petitioner. Hence, this appeal.
6. It appears that the provisions of the Payment of Gratuity Act were not argued before the learned trial Judge minutely. Section 1(3) of the Payment of Gratuity Act reads as follows :
"(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.
(3-A) A shop or establishment to which this Act has become applicable shall continue to be governed by this Act notwithstanding that the number of persons employed therein at any time after it has become so applicable falls below ten."
7. Clause (a) does not apply to the trust, because it is neither a factory nor mine and etc. As regards Clause (b), it is admittedly, not a shop. The question whether it is an 'establishment' the definition given to an 'establishment' in the West Bengal Shops and Establishments Act, 1963 has to be looked into. The definition of establishment in Section 2(5) of the W.B. Act is as follows :
"Establishment means a commercial establishment or an establishment for public establishment or amusement."
8. Thus, the definition given to an establishment in the West Bengal Act, does not apply to a charitable trust. As regards Clause (c) it can be attracted only if the Central Government may by notification extend it to public and charitable trusts. It has not been argued that the Central Government has issued any such notification extending the provisions of the Act to public and charitable trusts. From the aforesaid discussion, it would be clear that the learned Judge was under a mistaken notion that the Payment of Gratuity Act is applicable to public and charitable trusts also.
9. Now, we come to the definition of employee given in Section 2(e) of the Act. According to the definition an employee is one whose wages do not exceed Rs. 2500/- per mensem. 'Wages' include all emoluments which was earned by employee while on duty and include dearness allowance under Section 2(s) ibid. We do not know whether the petitioner was getting basic pay to the tune of Rs. 2322/- inclusive of D. A. or not. Even assuming that the Payment of Gratuity Act applies to the petitioner's case, Section 7(4) of the Act says that if there is any dispute as to the amount or as to the admissibility of any claim, or in relation to an employee for payment of gratuity, and any dispute in regard to any matter or matters, the employer and employees or any other person raising the dispute may make an application to the controlling authority for deciding the dispute. Under Sub-section (7) of Section 7 any person aggrieved by an order issued under Section (4) of the Act, may prefer an appeal to the State Government. Section 8 provides that the arrears of gratuity are recoverable as arrears of revenue on the strength of a certificate issued to controlling authority. Section 14 of the Act provides that the provisions of the Payment of Gratuity Act shall have over-riding effect notwithstanding anything inconsistent contained in any other enactment or any construction or contract having effect by virtue of any enactment than this Act. Therefore, the procedure contained in the Act has an overriding effect and no Civil Court has any jurisdiction to adjudicate upon the matter covered by the said Act. Thus this High Court in exercise of powers under Section 92 of the Code of Civil Procedure could not adjudicate upon the rights and liabilities of the parties with regard to payment of gratuity.
10. As regards pension, the pension may be payable under the provisions of the scheme by the High Court, but it has to be remembered that the petitioner should have filed a suit for pension, if it had not been granted. The interlocutory application in the garb of amending the scheme is not a substitute for a Civil Suit. The learned trial Judge has relied on the case of Raje Ananda Rao v. Shyam Rao , wherein it has been observed that the Court is competent to amend the scheme if the circumstances so require. The Supreme Court observed, thus it is open in a suit under Section 92 where scheme is to be settled to provide in the scheme for modifying there and when necessity arises by inserting a clause to that effect. In paragraph 10 of the judgment, the Supreme Court made that the amendment should relate to the administration of the trusts and should not in any way affect the private rights of the parties. Here, in this case, the petitioner has not prayed for amending the scheme. All the reliefs, sought by him in paragraph 12 of the petition relate to his personal claims. The provision of Section 92 of the Code of Civil Procedure cannot be invoked for personal claim. I, therefore, hold that the petition was not competent.
11. The appeal is, therefore, allowed and the order passed by the learned trial Judge is set aside. The petition filed by the petitioner is rejected. We leave the parties to bear their own costs.