NITIN A MEHTA Vs. MEHTA PRAFULLABEN DALPATRAI

JUDGEMENT

(1.) In the present writ petition, the order dated 23-12-1999 passed by the Controlling Authority under the Payment of Gratuity Act, 1972, Bhavnagar in Gratuity Application No. 17 of 1999 is under challenge.

(2.) The respondent-workman had filed application claiming the benefit of gratuity under the provisions of Payment of Gratuity Act, 1972 [hereinafter referred to as, `the Act'] against the petitioner-Abhinav Siksan Sikshak Samaj [hereinafter referred to as, `the Society']. Before the Controlling Authority, the petitioner-Society has raised a preliminary contention that the provisions of Gratuity Act are not applicable, and therefore, the Controlling Authority has no jurisdiction to entertain and try such application filed by the respondent-workman. The said preliminary contention has been examined by the Controlling Authority and came to the conclusion that considering the notification issued by the Central Government dated 3rd April, 1997, the educational institutions are covered within the purview of the Payment of Gratuity Act, 1972, and therefore, he held that the Controlling Authority has jurisdiction to entertain such application filed by the respondent workman. Mr. Gandhi, learned advocate appearing for the petitioner-Society has raised a contention that though there is a notification issued by the Central Government covering the Educational Institutions within the purview of the Payment of Gratuity Act but it is necessary to consider the provisions of Sec. 1 (3) of the said Act. Said Section 1 (3) of the Act reads as under :-

(3.) Learned advocate H.J Nanavati, on the other hand, submitted that the order impugned herein is based on the preliminary issue and the Controlling Authority has not determined the main application, and therefore, it is not a conclusive order. Mr. Nanavati submitted that the contentions raised by the petitioner can very much be raised by it at the time of final hearing of the said application. Mr. Nanavati has pointed out that only the question of jurisdiction has been examined by the Controlling Authority in light of the notification dated 3rd April, 1997, and therefore, the present writ petition is premature. Mr. Nanavati further argued that once, under the Payment of Gratuity Act, the Central Government has issued Notification on 3rd April, 1997, covering all the Educational Institutions within the purview of the Payment of Gratuity Act then the question of considering exemption under the provisions of the Bombay Shops & Establishments Act, 1948 of `Establishment' which is having educational activities does not make any difference because the exemption which has been granted under the provisions of Bombay Shops & Establishments Act is applicable to the provisions of the said Act but that does not mean that petitioner is not covered within the definition of `Establishment'. Mr. Nanavati further argued that the said exemption cannot have any effect when the Notification dated 3rd April, 1997 has been issued by the Central Government covering the Educational Institutions within the purview of the Payment of Gratuity Act, and therefore, the Act is applicable to the petitioner and the decision which has been taken by the Controlling Authority; relying upon the said Notification, cannot be said or considered to be erroneous. In support of his arguments, learned advocate Mr. Nanavati has placed reliance upon the decision of the Division Bench of Bombay High Court in the matter of Premlata Digambar Raodeo v. Principal, St. Phelomine's Convent High School, Nasik & Ors., reported in (1997 1 CLR 596) and of Division Bench of Andhra Pradesh High Court in the matter between V. Venkateshwara Rao v. Chairman/Governing Body, S.M.V.M & Ors., reported in [1997 Lab.IC 2543].