Back
2003 Supreme(Guj) 477
Gujarat High Court
Judgename :H.K.RATHOD
Indian Red-Cross Society - Appellant
Versus
Vidyaben H.Vyas - Respondent
Special Civil Appln. 10611 of 1993
Decided On : 08/27/2003
Headnote:
Industrial Disputes Act, 1947 -Section 2 - Gratuity Act, 1972 -Constitiuion of India –Article 227-Petititoner-Society has challenged the order passed by the controlling authority as well as the appellate authority At the time of issuing notice by this court in both the petitions, this Court has passed the following order:"notice returnable. petitioner to deposit the entire amount as per the award of the controlling authority. amount to be deposited before the controlling authority. On complying with the aforesaid direction, ad interim stay in terms of para 10 (B ). The learned counsel for the petitioner assures that the amount will be deposited. "the aforesaid order has been passed by this Court. Then this court has issued Rule. The order passed by this Court is quoted as under:"it appears that pursuant to the order petitioner has already deposited the due amount with the controlling authority. It is stated on behalf of the petitioner that the amount includes the interest as available on the said amount. Considering the question as to whether the Indian Red- cross Society is subjected to the provisions of the Gratuity Act or not and in view of the other incidental questions, the matter is required to be considered in depth. Rule returnable Ld. Advocate, waives service of Rule on behalf of respondent No. 1. Affidavit-in-reply, if any may be filed within 15 days of receipt of Notice of this court and Rejoinder thereto if any, be filed within one week thereafter. It is made clear that the Controlling authority may deposit the said amount in short Term Fixed Deposit with any nationalised Bank and the respondent No. 1 may be given the interest accruing on such deposit, without prejudice and subject to the result of this petition. "in both the petitions, this court has passed identical orders and granted identical relief by passing first order and second order. On behalf of respondent No. 1 in both the petitions, affidavit-in-reply has been filed by the respondent –Held purpose of powers conferred on High Court, held, is to advance Justice, not to thwart it, even where Justice is the by-product of an erroneous interpretation of law, High Court ought not to wipe out such Justice in the name of correcting the error of law. The relevant paragraph 12 is quoted as under:"we are greatly disturbed by the insensitivity reflected in the impugned judgement rendered by the learned single Judge in a case where Judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. High Court nonsuited him in exercise of a supervisory and extraordinary Jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High court under Articles 226 and 227 of the constitution is to advance Justice and not to thwart it The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law, the lookout of the High court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If Justice became the by-product of an erroneous view of law the High Court is not expected to erase such Justice in the name of correcting the error of law. "IN view of the above observations and considering the facts of the case, according to my opinion, there is no substance in the present petition and therefore present petition is dismissed with costs. Rule is discharged. Interim relief stands vacated –Petition is Dismissed.
( 1 ) IN both these petitions, on behalf of the petitioner learned advocate mr. K. M. Thakkar is appearing and learned advocate Mr. P. V. Hathi is appearing on behalf of the respondent No. l.
( 2 ) IN both the petitions, the petititoner-Society has challenged the order passed by the controlling authority as well as the appellate authority under payment of Gratuity Act, 1972 the Act for short ). At the time of issuing notice by this court in both the petitions, this Court has passed the following order:"notice returnable on 1. 11. 93. The petitioner to deposit the entire amount as per the award of the controlling authority. The amount to be deposited before 1. 11. 93 before the controlling authority. On complying with the aforesaid direction, ad interim stay in terms of para 10 (B ). The learned counsel for the petitioner assures that the amount will be deposited. "the aforesaid order has been passed by this Court on 11,10. 1993. Then this court has issued Rule on 19. 8. 1994. The order passed by this Court an 19. 8. 1994 is quoted as under:"it appears that pursuant to the order dated 11. 10. 1993 the petitioner has already deposited the due amount with the controlling authority. It is stated on behalf of the petitioner that the amount includes the interest as available on the said amount. Considering the question as to whether the Indian Red- cross Society is subjected to the provisions of the Gratuity Act or not and in view of the other incidental questions, the matter is required to be considered in depth. Rule returnable on 19,10. 1994. Mr. P. V. Hathi, Ld. Advocate, waives service of Rule on behalf of respondent No. 1. Affidavit-in-reply, if any may be filed within 15 days of receipt of Notice of this court and Rejoinder thereto if any, be filed within one week thereafter. It is made clear that the Controlling authority may deposit the said amount in short Term Fixed Deposit with any nationalised Bank and the respondent No. 1 may be given the interest accruing on such deposit, without prejudice and subject to the result of this petition. "in both the petitions, this court has passed identical orders and granted identical relief by passing first order on 11. 10. 1993 and second order on 19. 8. 1994. On behalf of respondent No. 1 in both the petitions, affidavit-in-reply has been filed by the respondent.
( 3 ) LEARNED advocate Mr. P. V. Hathi has submitted that inspite of having a direction from this court to the petitioner to deposit the entire amount as ordered by the controlling authority, the petitioner has not deposited the entire amount. But in case of Vidyaben Harilal Vyas the petitioner has deposited the amount of rs. 28326. 00 before the controlling authority and in case of Valiben, the amount of Rs. 26625. 00 has been deposited before the controlling authority. According to Mr. Hathi this being not the entire amount as ordered by the controlling authority.
( 4 ) IN both the petitions the respondents have filed application before the controlling authority under the Act claiming the amount of gratuity from the petitioner. Before the controlling authority, the contention raised by the petitioner is that there is delay in filing the application by the respondents and also to the effect that the Act is not applicable to the petitioner-Society and petitioner-society is not a commercial establishment and therefore, the Act itself is not applicable. Except that, no other contention was raised before the controlling authority by the respondents. This contention has been dealt with by the controlling authority and ultimately the controlling authority has come to the conclusion that the petitioner-Society is covered by the definition of industry under Section 2 (J) of the industrial Disputes Act, 1947 as well as being an establishment under Section 1 sub-clause (3) (b) of the Act. This finding was arrived at by the controlling ( authority on the basis of oral and documentary evidence produced by respective pa
