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Gujarat High Court
Judgename :S.D.Pandit
ANDHJAN VIVIDHLAXI TALIM KENDRA - Appellant
Versus
PUSHPABEN N.CHANDALIA - Respondent
S.C.A. 8123 of 1997
Decided On : 08/19/1998
Out of the four objects mentioned in the said constitution, the fourth object clearly shows that it is the aim of the institute to run a cottage industry. Now alongwith the said aims and objects of the petitioners institute, the evidence which has come on the record during the inquiry held by the competent authority is to be considered as had been considered by the competent authority. It has come in the evidence of the workmen Bhavanjibhai that the work of stationey, napkins, towels, registers, notebooks are carried out. Shri Maganbhai Gangadas was examined on behalf of the Institute has stated that institution prepares note-books, towels, stationery etc., and those institution which are prepared to accept readymade goods, they are supplied readymade goods and rest as per the order placed by them. The other witness Arvindbhai has also given the same admission about the preparation and selling of stationery, note-books, napkins and towels. The competent authority has also found that on the documents produced by the institution, it has been mentioned that the institution is a training cum production centre. Now, in view of the said evidence coming on record, the competent authority has came to the conclusion that the petitioner is liable to pay the gratuity and it falls within the perview of the said Act of 1972. The said conclusion recorded by the competent authority could not be said to be either perverse or grossly erroneous resulting into miscarriage of justice so as to interfere with the same by exercising the powers under Arts. 226 and 227 of the Constitution of India.
[Para 8]
The Court hold that the orders passed by the respondents No. 2 and 3 are quite proper and just and no interference is called for the same by exercising the powers under Arts. 226 and 227 of Constitution of India. Court, therefore, hold that the present petitions will have to be dismissed. The amount of gratuity which has been deposited by the petitioner as per the order in question should be paid to the workmen on or before 11th September, 1998.
[Para 15]
(b) Payment of Gratuity Act, 1972 — Sec. 1(3)(b) — Definition & meaning of word any used in relation to shop and establishment — Discussed. (Emphasis)
If the above provisions of Sec. 1(3) (b) is considered, then it would be quite clear that in order to have the application for the Payment of Gratuity Act, 1972, the employer must be other a shop or an establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State. It is very pertinent to note that the word used is of any law in force in relation to shops and establishments. When the word any is used, it indicates that the law may be either in relation to shops or in relation to establishments. The Sec. 1(3) (b) does not lay down that it must be a law of both the shops and establishments. If that was intended or meant by the section that the law must be applicable to both then in that case instead of any the word the would come.
[Para 5]
(c) Bombay Shops & Establishments Act, 1948 — Sec. 2, Sub-sec. (4)(8) — Meaning and difference of words — Commercial Establishment & Establishment — Discussed. (Emphasis)
If the above definitions are read then it would be quite clear that Sub-sec. 4 is giving the definition of Commercial Establishment whereas Sub-sec. 8 is giving the definition of Establishment. But it must be remembered that the definitions given under the said Act of 1948, are for the purpose of deciding and considering the claim or liability under the said Act of 1948. If the definition given in Sub-sec. 4 of the said Act of 1948 is taken into consideration then the present petitioner could come within the said definition.
[Para 6]
( 1 ) RULE. Mr. D. H. Vaghela. learned Advocate waives service of notice of Rule on behalf of respondent No. 1. Mr. D. A. Bambhania, learned a. G. P. waives service of notice of Rule on behalf of respondent No. s. 2 and 3, in each of these three petitions.
( 2 ) THE petitioner is one and the same and the respondent No. 1 in each of the petitions was the employee of the petitioner. The orders, passed by the competent authority under the Payment of Gratuity Act. 1972 against the petitioner to pay the gratuity to the respondent No. 1 and which have been confirmed by the appellate authority, are being challenged in these three petitions. Hence, these three petitions are heard together with consent of parties and they are disposed of by this common judgment.
( 3 ) THE petitioner-Andhjan Vividhlaxi Talim Kendra is a Public Trust, registered under the Bombay Public Trust Act, 1950. The respondent in Petition No. 8124 of 1997 was working in the workshop of the petitioner, whereas, the respondent No. 1 in each of Petition Nos. 8123 of 1997 and 8125 of 1997 was working in the hostel section of the petitioner. The petitioner is having about 106 persons as trainees. Out of these 106 persons. 80 persons are totally blind whereas 26 persons are partially blind and physically handicapped. It is claim of the petitioner that the petitioner is imparting training to the said 106 students in weaving, binding note-books and preparing register. The production which come on account of said training is being sold. It is claim of the petitioner that petitioner is not an establishment under the provisions of Sec. 1 (3) (b) of the Payment of Gratuity Act, 1972 and consequently, it could not be fall within the purview of the Payment of Gratuity Act. 1972. It is contended that petitioner is not a commercial establishment and is not an establishment within the meaning of the Bombay Shops and Establishments Act. It is, therefore, contended that the decision taken by the respondent No. 2 in holding the petitioner liable to pay the gratuity to the respondent No. 1 in each petition and which has been confirmed by the respondent No. 2 is illegal and invalid. Petitions, therefore, deserves to be allowed and the impugned orders be quashed and set aside.
( 4 ) AS against this, it is contended on behalf of the respondent No. 1 that the order passed by the respondent No. 2 is quite legal and no interference is called for with the said order by exercising powers under Arts. 226 and 227 of Constitution of India. It is further contended that the petitioners claim that it does not fall within the purview of the provisions of Payment of Gratuity Act. 1972 is illegal and improper and the same deserves to be rejected.
( 5 ) IN order to consider the controversy between the parties, it is necessary to consider the provisions of Sec. 1 (3) (b) of the Payment of Gratuity Act. 1972 as well as the provisions of the Bombay Shops and Establishments Act. The provisions of Sec. 1 (3) (b) of the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act of 1972") is as under :" (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 arc employed, or were employed, on any clay of the preceding twelve months,"if the above provisions of Sec. 1 (3) (b) is considered, then it would be quite clear that in order to have the application of the Payment of Gratuity Act, 1972, the employer must be either a shop or an establishment within the meaning of any law lor the time-being in force in relation to shops and establishments in a State. It is very pertinent to note that the word used is of any law in force in relation to shops and establishments. When the word "any" is used, it indicates that the law may be either in relation to shops or in relation to establishments. Sec. 1 (3) (b) does not lay down that il must be a law of both the shops and establishme
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