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2013 Supreme(Ori) 54
HIGH COURT OF ORISSA: CUTTACK
B.N. MAHAPATRA, J.
Indian Red Cross Secretary – Petitioner
Versus
Bankanidhi Mishra, - Opposite Party
W.P.(C) No. 6890 of 2012
Decided On : 15.03.2013
For Petitioner: M/s. Santanu K. Sarangi, B.K. Behera & A.K. Nayak
For Opp. Party :Manoj Kumar Mishra, Sr. Advocate M/s. P.K. Das, D.K. Pattnaik, M.K. Rajguru, B.K. Mishra, J.K. Mohapatra, D. Tripathy, T. Mishra & D.P. Das
Headnote:1. PAYMENT OF GRATUITY ACT, 1972 - Sec. 7(3) - Indian Red Cross Society, Orissa State Branch (Recruitment and Conditions of Service) Rules, 2001 - Opposite party after serving for more than 28 years of continuous service with petitioner retired - Payment of gratuity - As per Rules, 2001, O.P. was paid gratuity amount of Rs.50,000/- against claim of Rs.3,48,034/- - Controlling Authority allowed the claim by granting Rs.3,50,000/- towards gratuity Writ - Whether the entitlement of an employee under the Act, 1972 can be curtailed by Rules, 2001 framed by the petitioner - Indian Red Cross Society? - No rule can be framed by the employer and made applicable to the employees which is less favourable in comparison to what an employee gets under the Act, 1972 Held, statutory entitlement available to an employee cannot be curtailed by the petitioner by framing any rules of its own - No infirmity and illegality in the impugned order. (Paras 19 to 24)
2. SERVICE - 'Gratuity' - General principle underlying the gratuity scheme - By their length of service, workmen are entitled to claim a certain amount as a retiral benefit.
Gratuity has to be considered to be an amount paid connected with any consideration' and not resting upon it, and has to be considered something given freely or without recompense. It does not have foundation on any legal liability, but upon a bounty steaming from appreciation and graciousness. Long service carries with its expectation of an appreciation from the employer and a gracious financial assistance to tide over post retiral difficulties. (Para 10)
3. PAYMENT OF GRATUITY ACT, 1972 - Sec. 1(3)(b) - 'Establishment' - The object of the Act, 1972 is to achieve social justice - A liberal interpretation and wider meaning has to be given while interpreting the word 'establishment'.
The establishment having a wide meaning which includes commercial establishment as well non commercial, establishments and no limited meaning can be given to the word 'establishment' which has been referred to in Section 1 (3)(b) of the Act. 1972. (Paras 17 and 13)
Judgment
B.N. Mahapatra, J.
This writ petition has been filed with a prayer for quashing the order dated 29.11.2010 (Annexure-2) passed by the Controlling Authority under Payment of Gratuity Act-cum-Asst. Labour Commissioner, Cuttack in P.G. Case No.23 of 2009 allowing the claim of opposite party in part and directing the Honorary Secretary, Indian Red Cross Society, Orissa State Branch, Bhubaneswar to deposit Rs.3,00,000/-before the said Court along with 10% interest per annum within 30 days from receipt of the order for onward disbursement to the applicant as per Section 7(3) of the Payment of Gratuity Act, 1972 (for short, “Act, 1972”) and also the execution proceeding initiated under Annexure-3 dated 30.12.2011.
2. Petitioner’s case in a nut-shell is that the petitioner-society was constituted by an Act of Parliament, 1920 and it is neither a registered society under the Societies Registration Act, 1860 nor a Co-operative Society. Opposite party is a doctor employed in Blood Bank. On 31.10.1977, the opposite party entered into service as Medical Officer. He was appointed as Director, Central Red Cross, Blood Bank, Cuttack on 31.05.2006. He retired from service on attaining the age of superannuation on 31.05.2007. He was paid Rs.50,000/-towards retiral benefit, gratuity etc. as per Clause 28 (a) of the Service Rules, 2001. Petitioner’s claim is that his last drawn salary was Rs.21,545/-per month and considering his length of service of 28 years he is entitled to get a sum of Rs.3,48,034/-against payment of Rs.50,000/-towards gratuity. Since his representation with regard to higher gratuity was not considered by the authorities, he moved the Controlling Authority-cum-Asst. Labour Commissioner, Cuttack in P.G. Case No.23 of 2009 under the Act, 1972 and the Controlling Authority passed the impugned order allowing the claim of the petitioner by granting Rs.3,50,000/-towards gratuity. Hence, the writ petition.
3. Mr. S.K. Sarangi, learned counsel appearing for the petitioner submitted that the petitioner does not come under the Act, 1972 since it is not a factory, mine, oil field, plantation, port and railway company as provided under Section 1(3)(a) of the Act, 1972. It is not a shop or establishment as defined under Section 1(3)(b) of the Act, 1972. It is also not an establishment/establishments as notified by the Central Government under Section 1(3)(c) of the Act, 1972. Referring to Sections 2(8) and 2(19) of the Orissa Shops and Commercial Establishments Act, 1956, it was submitted that “establishment” means a shop or a commercial establishment and “shop” means any premises where any trade or business is carried on or where services are rendered to customers respectively. The petitioner-society has already paid a sum of Rs.50,000/-towards full and final settlement of gratuity as per Rule 28(a) of the Indian Red Cross Society, Orissa State Branch (Recruitment & Conditions of Service) Rules, 2001 (for short, “Rules, 2001”) framed by the petitioner-society which came into effect from 05.11.2001. The term ‘employee’ has been defined under Section 2(e) of the Act, 1972. The term ‘employer’ has also been defined under Section 2(f) of the Act, 1972. It is further submitted that the applicant was a Director (Chief Executive under Class-I Officer) of Central Red Cross Society, Blood Bank and does not come within the ambit of “employee” under the Act. He retired on 31.05.2007. His services were governed by the Rules, 2001 framed by the petitioner-Indian Red Cross Society. The provisions of the Act, 1972 are not attracted. The Controlling Authority is not justified to bring the petitioner under the fold of Section 1(3)(c) of the Act, 1972. Blood is a necessary ingredient of the medical treatment upon which the life and death of a patient depends. The tests conducted in the Blood Bank are in the nature of excluding some diseases which are carried by blood and unless such tests are conducted, donors’ blood can neither be accepted nor the
