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1996 Supreme(SC) 743
1996(4) Supreme 250
SUPREME COURT OF INDIA
Kuldip Singh & Faizan Uddin, JJ.
Jotindra Nath Roy -Appellant
versus
Surendra Bikram Singh Agarwal & Ors. -Respondents
Civil Appeal No. 6892 of 1996
(Arising out of SLP (C) No. 21294 of 1995)
Decided on 9-4-1996
IMPORTANT POINT
If scheme of a Trust created for religious and charitable purposes provided for pension for its employees then an employee would be entitled to such pension.
Headnote:(i) Payment of Gratuity Act, 1972-Section 2(e)-Trust for religious and charitable purposes-Scheme provided for grant of pension and other facilities to employees-Uncontroverted affidavit of appellant that last salary at his retirement drawn was Rs.2322/-There was no occasion to assume that appellant was getting wages exceeding Rs. 2500/- and was not an employee defined under Section 2(e) of the Payment of Gratuity Act-Otherwise also no reason on record to deny exercise of discretion for grant of pension as envisaged in the scheme of the Trust. (Paras 6 & 7)
(ii) Payment of Gratuity Act, 1972-Trust for religious and charitable purposes-Trust had been treated as an Establishment as per notification published by the Govt. of India-Provisions of Payment of Gratuity Act would be attracted and appellant who had served for 43 years would be entitled for gratuity. (Para 9)
JUDGMENT
Faizan Uddin, J.-Leave granted.
2. This appeal by one of the retired employees of the Trust created by one Late Babu Lal Agarwal has been directed against the order dated July 25, 1995 passed in appeal by the Division Bench of the Calcutta High Court setting aside the order passed on December 12, 1994 by a learned Single Judge of that Court in Civil Suit No. 703/1993 whereby the learned Single Judge had held that the appellant was entitled for the pension as well as the gratuity from the said Trust.
3. Late Babu Lal Agarwal, during his life time, had executed a Will and testament creating a trust for religious and charitable purposes. In a suit between one Amrita Bibi the widow of the pre-deceased son of late Babu Lal Agarwal and his other heirs a comprehensive scheme was framed for administration of the Trust. Amongst other matters, the scheme provided for grant of pension and other facilities to the employees of the Trust and the relevant provisions in the said scheme were as under:-
"(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 last pay and in case of lump sum payment should not 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 s full pay last drawn by such deceased employee."
4. The appellant being a retired employee of the Trust claimed pension and gratuity by contending that he had joined the employment of the Trust on April 1950 and retired as Personal Assistant of the Trustees on April 8, 1993 while he was receiving a salary of Rs.2322/- per month and that having regard to the relevant terms of the scheme prepared by the High Court and reproduced in the foregoing para, he is entitled to pension at the rate of one third of the last salary drawn by him and also the gratuity as per rules in accordance with the provisions of Payment of Gratuity Act, 1972. It was alleged that inspite of the demand having been made by the appellant the Trustees failed to release the amount of pension and gratuity payable to him and, therefore, the appellant approached the High Court for a direction to the Trustees to pay pension and gratuity with interest.
5. Learned Single Judge took the view that the retirement benefits are no longer bounty of the employers but they constitute a right under the law and, therefore, the appellant was entitled for the pension. As regards the gratuity the learned Single Judge relying on the provisions of Section 14 of the Payment of Gratuity Act, 1972 took the view that the scheme being silent with regard to the payment of gratuity does not alter the situation in so far as entitlement of gratuity is concerned. On appeal being preferred by the respondent, one of the Trustees, the Division Bench of the High Court took a contrary view, set aside the order of the learned Single Judge and dismissed the appellant s claim for pension and gratuity. The Division Bench took the view that the Trust cannot be regarded as an establishment as defined in Section 2(5) of the West Bengal Shops and Establishment Act, 1963 and, therefore, the provisions of Payment of Gratuity Act, 1972 could not be attracted in the case of the appellant as the appellant did not fall in any of the categories mentioned in sub-clauses (a), (b) and (c) of sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972.
6. Learned counsel for the appellant assailed the view taken by the Division Bench of the High Court and urged that the Division Bench was patently wrong
