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2019 Supreme(Kar) 1643
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
B.V. NAGARATHNA, K.N.PHANEENDRA, B.A.PATIL, JJ.
Shri Mookambika Temple, Kollur, Represented By Its Executive Officer, Sri L.S. Maruthi - Appellant
Versus
Mr. Raviraja Shetty, S/o. Late Sanjeeva Shetty And Ors - Respondent
Writ Appeal No.1756 of 2015 [L-PG]
Decided On : 01-08-2019
Advocate Appeared:
For the Appellant :Sri Anandarama K., Advocate
For the Respondent:Sri T. Mohandas Shetty, Advocate, Sri S.S. Mahendra, AGA
Headnote:
ssKarnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 - Section 2 - Karnataka Shops and Commercial Establishments Act, 1961 - Section 2 - Working Journalists and Other Newspaper Employees and Miscellaneous Provisions Act, 1956 - Gratuity Act, 1972 - Section 1(3)(b) - Beedi and Cigar Workers Act, 1966 - Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - Section 116 - Tamil Nadu Hindu Religious Institutions Service Rules, 1964 - Constitution of India, 1950 - Article 254 – Claim of compensation – Condo nation of Delay – Employment and service - Enquiry for misconduct - Whether appellant being a temple as defined in clause (27) of Section 2 of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 answers to description of commercial establishment within meaning of clause (e) of Section 2 of Karnataka Shops and Commercial Establishments Act, 1961 and thereby is an establishment within meaning of said Act of 1961and hence Payment of Gratuity Act, 1972 is in applicable to it by virtue of clause (b) of subsection (3) of Section 1 thereof - Whether law declared by Division Bench of this Court in case of Management of Temple that a clerk in a temple is entitled to claim benefit of gratuity on attaining age of superannuation under Payment of Gratuity Act, 1972 stands in conformity with provisions of law applicable in State of Karnataka - Whether petitioner temple would fall within meaning of term establishment under Act of 1972 was no more res integral in view of decision of a learned Single Judge in case of Management of Temple and Temple District v. Deputy Lab our Commissioner and Appellate Authority under Payment of Gratuity Act as approved by Division Bench - Whether a temple as defined in Act of 1997 in State of Karnataka would be an establishment within meaning of Karnataka Shops and Commercial Establishments Act, 1961 has not been gone into by Courts and provisions of Act of 1997 and Rules there under have not been considered - Whether appellant was covered under Act of 1972 was no more res integral in view of Division Bench decision of this Court – Held, It is further stated that where under any such award agreement contract of service or otherwise a newspaper employee is entitled to benefits in respect of any matter which are more than favorable to him than those to which he would be entitled under Working Journalists Act, 1955 news paper employee shall continue to be entitled to more favorable benefits in respect of that matter notwithstanding that he receives benefits in respect of other matters under Working Journalists Act, 1955 - Comparing provisions of Working Journalists Act, 1955 with Act of 1972 Division Bench of this Court noted that both Working Journalists Act, 1955 as well as Act of 1972 contain nonobstante clause which means that despite provisions of Act mentioned in nonobstante clause law following it was to have full operation or that provision referred to in nonobstante clause would not be an impediment for operation of document - While referring to principles governing interpretation of statute when there are two nonobstante clauses generally a later enactment would prevail upon earlier one if both deal specifically with same subject – Further position would be different if earlier statute is a special statute and later though with a nonobstante clause a general one - It was thus held that Working Journalists Act, 1955 was applicable to respondent therein - Since under said Act respondent was admittedly not eligible for grant of payment of gratuity under aforesaid enactment question of conferring beneficial provisions under Act of 1972 did not arise – Therefore it was held that Working Journalists Act, 1955 being a special enactment had to be applied to working journalists and not Act of 1972 which is a general enactment - It has been held by Hon’ble Supreme Court that Section 5 of Working Journalists Act, 1955 which deals with payment of gratuity being a special law would prevail over Section 4(6) of Act of 1972 which is a general law - Section 5 of Working Journalists Act, 1955 is applicable only for working journalists whereas Payment of Gratuity Act is applicable to all employees who are covered by that Act and not limited to working journalists - Hence Working Journalists Act, 1955 is a special law whereas Payment of Gratuity Act is a general law – Appeal succeeds
JUDGMENT :
1. This Full Bench has been constituted by Hon’ble the Chief Justice pursuant to an order of reference dated 20th July 2018 made by a Division Bench headed by Hon’ble the Chief Justice to consider and determine the following questions:
(i) “As to whether the appellant, being a ‘temple’ as defined in clause (27) of Section 2 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, answers to the description of ‘commercial establishment’ within the meaning of clause (e) of Section 2 of the Karnataka Shops and Commercial Establishments Act, 1961 and thereby, is an ‘establishment’ within the meaning of the said Act of 1961; and hence, the Payment of Gratuity Act, 1972 is in applicable to it by virtue of clause (b) of subsection (3) of Section 1 thereof?
(ii) As to whether the law declared by the Division Bench of this Court in the case of Management of Venkataramana Swamy Temple (supra), that a clerk in a temple is entitled to claim the benefit of gratuity on attaining the age of superannuation under the Payment of Gratuity Act, 1972, stands in conformity with the provisions of law applicable in the State of Karnataka?”
2. The aforesaid questions follow an order of reference made on the aforesaid date. The order of reference is extracted as under:
“1. Delay of 445 days in filing this appeal has not been opposed, and rightly so, by the learned counsel for the respondents. Having examined the record, we are satisfied that delay in filing the appeal has not been intentional and has been for bona fide reasons and in the overall circumstances, it is appropriate to examine the matter on merits.
2. Accordingly, delay of 445 days in filing the appeal is condoned. I.A. No.1 of 2015 stands disposed of.
3. This intra-court appeal is directed against the order dated 18.02.2014 passed in W.P. No.54267 of 2013 (LPG), whereby a learned Single Judge of this Court has rejected the writ petition filed by the present appellant against the order dated 26.04.2012 passed by the Deputy Chief Labour Commissioner and Appellate Authority under the Payment of Gratuity Act.
4. The relevant background aspects of the matter are as follows: The appellant is said to be a temple at Kollur, governed by the provisions of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, (‘the Act of 1997’). The respondent no.1 herein had been an employee of the appellant temple since 31.07.1972. He was relieved from duties, allegedly on attaining the age of superannuation on 29.11.2005. This order was challenged by the respondent No.1 in W.P. No.27385 of 2005 wherein an interim order was granted in his favour on 20.01.2006. However, the said writ petition was ultimately disposed of on 04.01.2008 with liberty to the respondent No.1 to seek the relief at the appropriate stage, if the age of superannuation was held to be 65 years in other pending litigation; and if he could establish having not attained the age of 65 years as on the date of relieving. Thereafter, the respondent No.1 was finally relieved from duties with effect from 31.12.2008.
5. The respondent No.1, later on, approached the Assistant Commissioner and Controlling Authority under the Payment of Gratuity Act, claiming gratuity under the Payment of Gratuity Act, 1972, (‘the Act of 1972’). Such a claim of the respondent No.1 was resisted, essentially on the ground that the provisions of the Act of 1972 were not applicable to the appellant temple, who is governed by the Act of 1997 and the Rules framed thereunder. The said Controlling Authority, by its order dated 30.03.2011, accepted the claim of the respondent No.1 and directed the appellant to pay him a sum of Rs.2,91,351/-towards gratuity together with interest at the rate of 10% p.a.
6. Being aggrieved by the aforesaid order dated 30.03.2011, the appellant preferred an appeal before the Deputy Chief Labou
