Gujarat High Court
Balaram vs Chauhan on 27 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/5083/2010 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5083 of 2010
To
SPECIAL
CIVIL APPLICATION No. 5085 of 2010
=========================================================
BALARAM
SAGHAN KSHETRA SAMITI - Petitioner(s)
Versus
CHAUHAN
AMARABHAI NARSINHBHAI & 3 - Respondent(s)
=========================================================
Appearance
:
MR
CHETAN K PANDYA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 27/04/2010
ORAL
ORDER
Heard learned advocate Mr. Chetan Pandya on behalf of petitioner - Balaram Saghan Kshetra Samiti, Chitrasani, Taluka Palanpur, District Banaskantha.
The petitioner Samiti has challenged order passed by Controlling Authority, Patan and Appellate Authority, Ahmedabad under provision of Payment of Gratuity Act in favour of Chauhan Amarabhai Narsinhbhai, Vaishnav Manchharam Beniprasad and Parmar Reshamben Dhirubhai.
The Controlling Authority, Patan has passed an individual order on 23/4/2009 in favour of each workman, but Appellate Authority has passed common order in appeal no. 66/2009, 67/2009 and 68/2009 dated 9/12/2009.
In respect to Chauhan Amarabhai Narsinhbhai, Controlling Authority, Patan has decided Gratuity application no. 6/2008 and granted amount of gratuity of Rs. 1,03,085/- with 10% simple interest w.e.f. 1/7/2008. In respect to Vaishnav Manchharam Beniprasad, Controlling Authority, Patan has passed order in Gratuity application 5/2008 decided on 23/4/2009 and awarded amount of gratuity Rs. 1,30,500/- with 10% simple interest w.e.f. 1/8/2008. Similarly, in case of Parmar Reshamben Dhirubhai, Controlling Authority, Patan has passed an order on 23/4/2009 in Gratuity application no. 4/2008 and awarded Rs. 1,34,685/- with 10% simple interest w.e.f. 2/12/2006.
Learned advocate Mr. Pandya has raised contention before this Court that circular issued by Deputy Secretary, Social Welfare Department on 14/2/2005 Annexure H page 31 wherein, it has been decided by State Government that employees, those who are working in State Government in different Ashramshala, are not entitled any lien, pension, Gratuity (retirement benefits) from State Government. The demand which was made by employees of different Ashramshala in State Government has been rejected.
He submitted that this circular was challenged by concerned employees in SCA no. 13666/94 with SCA no. 1632/95, SCA no. 2915/95 and SCA no. 10883/95, which was decided on 28/4/1997 (Coram: Honourable Mr. Justice R. Baliya). The said petitions filed by concerned employees were rejected and it is held that under Art. 226 of Constitution of India, the High Court can not compel State Government to implement that policy which did not so far decided to implement.
He also submitted that Gujarat Rajya Ashramshalal Karmachari Sangh has also challenged aforesaid decision before this Court decided on 4/2/2006 reported in 2006 (0)GLHEL-HC 216255, wherein this Court has held that non implementation of Government resolution dated 16/8/1994 is discriminatory and unconstitutional. Against which, LPA has been preferred which has been admitted by Division bench of this Court on 23/4/2007.
He submitted that page 50, circular dated 14/2/2005 has been referred it. The Appellate authority has not considered circular annexed at page 31. The service condition of such employees governed by State government from date of appointment not only that but from date of advertisement issued by petitioner and grant is made available by State Government for salary of concern employees. This aspect has not been considered by either of authority under provisions of Payment of Gratuity Act.
In short his submission is that petitioner is a Registered Trust under provisions of Bombay Public Trust Act, 1950 and also registered under Society Registration Act, 1960. The petitioner is rendering various Educational Institution, for which, under different scheme State Government is providing salary as well as maintenance grant. On 14/2/2005, Deputy Secretary, Social Welfare Department passed an order that employees of Ashramshala are not entitled retirement benefits like pension and gratuity. Therefore, respondent no. 1 is not entitled amount of gratuity and Gratuity Act is not applicable to Educational Institution and also not applicable to petitioner Trust looking to number of employees in each Educational Institution. In case if respondent no. 1 is entitled amount of gratuity then State Government may be directed to pay amount of gratuity as State Government is providing salary as well as maintenance grant as fully controlled with respect to appointment, termination and service condition of employee. Except that, learned advocate Mr. Pandya not raised any other contention before this Court.
I have considered submission made by learned advocate Mr. Pandya and I have perused order passed by Controlling Authority as well as Appellate Authority in each case. Before Controlling Authority, on behalf of petitioner, one Bharat M. Patel Official Administrator was remained present. During hearing before Controlling authority, there is no dispute between parties in respect to number of years of service rendered by respondents and last salary received by them. The only contention was raised by petitioner that grant which was received by petitioner Trust from State Government that grant has been discontinued by State Government. Out of three persons, two were working as Kamathi and one was working as Cook. Before Controlling authority, relevant documents have been produced on record i.e. date of joining in service, date of retirement, total numbers of year of service and last drawn salary. On that basis, calculation has been made by Controlling authority and accordingly order was passed by Controlling authority. It is necessary to note that before Controlling authority only one contention was raised by petitioner that grant in respect to amount of gratuity has been discontinued by State Government. Therefore, petitioner is not able to make payment of gratuity to respondent.
Before Controlling authority Social Welfare Officer (Vicharit Jati) Palanpur was not join as a party but Social Welfare Officer (Vicharit Jati) was join as a party before Appellate authority. So, before Controlling authority, no other contention was raised and almost matter has been decided on the basis of undisputed fact between parties. The amount of gratuity calculated by Controlling Authority and directed to be paid with 10% simple interest in favour of respondents.
Before Appellate authority, contention has been raised which was raised before this Court. The Appellate authority has considered definition of Establishment given under section 1 subsection 3(b), where Act shall apply to every shop or establishment within a 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 proceeding twelve months. Such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of proceeding twelve months, as the Central Government may, by notification, specify in this behalf. By a notification No. S. O. (F. No. S 42013/1/95-SS, II), Central Government has extended Act upon Educational institutions in which ten or more persons are or were employed on any days of preceding twelve months. The meaning of Establishment under section 1(3)(b) of Act is not restricted as referring to Commercial establishment alone. The Act has been held to apply even to institutions which are exempted under Shops and Establishments Act.
Therefore, in view of aforesaid notification issued by Central Government, Gratuity Act is made applicable to Educational Institution and Petitioner Trust being an Educational Institution, Act is made applicable.
Similar view taken by A. P. High Court in case of V. Venketeswar Rao Vs. Chairman, Governing Body, SMVM Polytechnic, Tanuku reported in 1997 (77) FLR 428, where A. P. High Court has held that in a case that Act will apply to Polytechnic being an Educational Institution. Therefore, Appellate Authority has come to conclusion that petitioner being a Trust and an Educational Institution and as per Central Government notification, Act is made applicable and no exemption has been given by Central Government in favour of petitioner trust. Before Appellate authority also petitioner has raised only contention that State Government is liable to pay amount of gratuity to concern respondents because grant is paid by State Government and salary of concern respondents were also paid by petitioner Trust after receiving grant from State Government. The Appellate authority has also considered that merely receiving grant from State Government, this employees are not considered to be an employees of State Government.
On behalf of District Social Welfare Officer Vicharit Jati, a detailed reply has filed in Gratuity Appeal no. 66/2009 at page 34 wherein it is made clear that Kamathi, Cook and other similar employees are considered to be an employee of petitioner Trust and they are not considered to be Government Employee. Only salary grant has been paid by State Government against expenses, which has been made by petitioner Trust for paying salary to concern respondent. The respondent District Social Welfare Officer (Vicharit Jati) has also made clear that as per Government resolution dated 14/2/2005, concern employees are not entitled any retirement benefits including pension and gratuity from State Government. The decision of Controlling Authority is applicable to only petitioner Trust and not applicable to State Government. The employees concerned were appointed by petitioner Trust and service also terminated by petitioner Trust. The entire Administration and Management is to be managed by petitioner Trust after employing such employees in class III and IV viz. Kamathi and Cook and other workers those who are employees of petitioner Trust. The State Government is merely paying grant against salary as expenses of salary to petitioner Trust and entire administration and management is to be carried out by petitioner Trust. The employees, those who are working with petitioner Trust are not employee of State Government. According to State Government circular dated 14/2/2005, State Government is not bound to pay retirement benefits to such employees. Therefore, District Social Welfare Department (Vicharit Jati) specifically raised contention that it is a legal obligation and duty of petitioner Trust to pay amount of gratuity to concern employees and it is not a legal obligation of State Government to pay amount of gratuity to concern employees. No grant has been made available to petitioner Trust except salary by State Government. Therefore, Appellate authority has examined matter considering contention raised by petitioner as discussed in order passed by Controlling Authority. Ultimately, merely receiving grant from State Government, this employees are not considered to be an Employee of State Government and they are remained employees of petitioner Trust. Accordingly, it has been held that petitioner Trust is liable to pay amount of gratuity to concern respondent. The Gratuity Act is made applicable and petitioner Trust is covered by definition of Establishment and Educational Institution is covered by notification as referred above.
The contention raised by learned advocate Mr. Pandya before this Court can not be accepted because both authorities have decided factual aspect which based almost on undisputed fact between parties and only legal contention was that Act is not applicable can not be accepted considering definition of Establishment as well as Central Government notification as referred above which apply to Educational Institution. According to number of employees those who are working with petitioner Trust as per page 64 Annexure P and considering total number of employees from different Educational institution run and managed by petitioner Trust comes to 52. Therefore, petitioner Trust is covered by definition of Establishment as per section 1 subsection 3(b) of Gratuity Act. In petitioner Trust more than 10 employees are working in different Educational Institution. Therefore, also Gratuity Act is applicable. The contention has been raised by learned advocate Mr. Pandya that State Government has issued circular dated 14/2/2005 where decision has been taken that employees those who are working in different Ashramshala in State Government are not entitled any retirement benefits from State Government, but in that circular it is not decided by State Government that employees of Ashramshala are not entitled any retirement benefits from Educational Institution, where such employees are working. The circular dated 14/2/2005 is not made applicable to concern respondent because they were not Employees of State Government and they were employees of petitioner Trust. The petitioner trust is receiving only salary expenses by way of grant from State Government but except that entire administration and management is maintained by petitioner Trust. For that, State Government is not responsible at all.
According to my opinion, Controlling authority and Appellate authority have rightly examined matter based on facts. Either of authority has not committed any error which would require interference by this Court while exercising power under Art. 227 of Constitution of India. The respondents are entitled amount of Gratuity after completion of number of years service under section 4 of Gratuity Act, which has not been paid by petitioner Trust to concern respondent and rightly granted by Controlling authority in favour of respondent employees and rightly confirmed by Appellate authority. Hence, there is no substance in present petition, each petition is dismissed.
This Court is having limited jurisdiction in interfering such order passed by Controlling authority and Appellate authority while exercising power under Art. 227 of Constitution of India as per recent decision of Apex Court in case of State of Haryana & Ors Vs. Manoj Kumar reported in 2010 AIR SCW 1990. The relevant observation made in para 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
24. This court placed reliance on Nagendra Nath's case in a subsequent judgment in Nibaran Chandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895. The court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority.
25. This court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 . The court observed as under:-
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority,"
and not to correct an error apparent on the face of the record, much less an error of law. for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
26. This court again clearly reiterated the legal position in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
27. A three-Judge Bench of this court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.
28. In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 this court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits.
29. This court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit.
It is made clear by this Court that amount of gratuity with interest as directed by Controlling authority, Palanpur must have been deposited by petitioner Trust either before Controlling authority or Appellate authority in filing appeal under provisions of Gratuity Act. Therefore, it is directed to Controlling authority or Appellate authority to pay amount which has been deposited by petitioner Trust by A/c payee cheque in name of each respondent after proper verification immediately without any delay.
(H.K.RATHOD, J) asma Top