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2023 Supreme(Bom) 1306
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Noor Mohammed Abdul Rehman Mulla – Appellant
Versus
BCJ Hospital an Asha Parekh Research Center – Respondent
Writ Petition No. 5645 of 2022
Decided on : 01-09-2023.
Advocate Appeared:
For the Appellant : Mr. A. S. Peerzada, i/b. Iqbal Shaikh
For the Respondent: Mr. S. C. Naidu, a/w. Mr. Manoj Gujar a/w. Mr. T. R. Yadav a/w. Mr. Abhishek Ingale a/w. Mr. Pradeep Kumar i/b. C. R. Naidu & Co.
Headnote:
Constitution of India ,1950 - Article 227 – Payments of Gratuity Act 1972 - Section 7(vii) – Service Law – Post of Regional Manager – Entitled to receive gratuity – Challenged judgment and order – Whether Petitioner can be termed as an ‘employee’ within the meaning of Section 2(e) of Payment of Gratuity Act – Held, Petitioner admitted during course of his cross examination that he never signed any muster register or wage register – These admissions would further contribute to conclusion that Petitioner was engaged merely as a consultant by Respondent – Hospital and his engagement was not in capacity as an employee – Court is not expected to reappreciate evidence while determining correctness of finding recorded by Industrial Court in exercise of jurisdiction under Article 227 of Constitution of India – Court do not find any perversity in findings recorded by Industrial Court – After considering entire conspectus of case, Court have no hesitation in holding that judgment and order passed by Industrial Court is unexceptionable – Writ Petition dismissed
JUDGMENT:
1. Rule.
2. Rule is made returnable forthwith. With the consent of parties, petition is taken up for final hearing.
3. By this petition, Petitioner challenges judgment and order dated 26 March 2021 passed by the Industrial Court, Mumbai in Appeal No.55 of 2019. The appeal was filed by Respondents under the provisions of Section 7(vii) of the Payments of Gratuity Act 1972 challenging the judgment and order dated 26 July 2019 passed by the Controlling Authority & Labour Court, Mumbai (Controlling Authority), by which Petitioner was held to be entitled to receive gratuity of Rs.2,69,165/- alongwith interest at the rate of 10%. By judgment and order dated 26 March 2021 impugned in the present petition, the Industrial Court has proceeded to allow the appeal of Respondents and has set aside Controlling Authority’s order dated 26 July 2019. Aggrieved by the judgment and order dated 26 March 2021 of the Industrial Court Petitioner has filed the present petition.
4. Briefly stated, facts of the case are that Petitioner was an employee of Bombay Mercantile Co-operative Bank and held the post of Regional Manager. Respondent No. 1 is the hospital run by the Santacruz Residents’ Association. Considering Petitioner’s expertise in valuation and procurement of machines, Respondents decided to utilize his services. Petitioner claims to have joined services of Respondent hospital with effect from 26 November 2007 as Director and Administrator and worked with them for 9 years and 02 months until his retirement on 01 February 2017. Since he was not paid gratuity by the Respondent hospital, Petitioner filed application dated 01 August 2017 before the Controlling Authority under the Payment of Gratuity Act claiming gratuity. The Respondent hospital filed its written statement on 08 November 2017. Petitioner and Respondents led their respective evidence. The Controlling Authority passed judgment and order dated 26 July 2019 partly allowing the Petitioner’s application held him entitled to receive gratuity amount of Rs.2,59,165/- with interest at the rate of 10% per annum with effect from 02 February 2017 till the date of payment.
5. Respondents challenged the order of the Controlling Authority dated 26 July 2019 by filing appeal (PGA) No.55 of 2019 before the Industrial Court. By its judgment and order dated 26 March 2021, the Industrial Court has reversed the decision of the Controlling Authority while allowing Respondents’ appeal and has set aside the same. Petitioner has accordingly filed present petition challenging judgment and order dated 26 March 2021 passed by the Industrial Court.
6. Appearing for Petitioner, Mr. Peerzada the learned counsel would submit that Petitioner was engaged as an employee of the Respondent hospital. That he was given designation as Director- Administrator. He was also allotted a cabin in the Respondent hospital and that he was reporting to the trustees. That he was assigned clerical work during the course of his service with the hospital. He would also submit that the Controlling Authority considered the evidence on record and arrived at a finding that Petitioner was an employee of the Respondent and rejected their theory of Petitioner’s engagement as professional consultant. He was paid salary of Rs.50,000/- per month at the time of association of his employment as professional or consultant. That the Industrial Court erred in reversing the order of the Controlling authority. Mere filing of return in a particular Form or reflection of amounts received under various headings could not be a reason for the purpose of coming to the conclusion that Petitioner’s engagement with the Respondent-Hospital was of professional basis. That payment of fixed salary every month, accord of designation and provision of cabin, Petitioner had proved beyond any iota of doubt that Petitioner was an employee of Respondent-Hospital. He would submit that Trial Court has erroneously reversed the order of the Controlling Authority and wo
