INDIAN RED CROSS SOCIETY Vs. BANKANIDHI MISHRA

JUDGEMENT

(1.) 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. 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.

(2.) 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 contaminated blood can be issued. Therefore, the activities of blood test can neither be termed as test in order to earn profit nor the same is commercial in nature. Apart from the voluntary donors, blood is collected from willing donors on payment of certain amount. The same is generated through sale of Blood to different patients. In addition to this, donors are also given food after donating blood and those expenses are met out of the sale of Blood. Thus, the finding of learned Controlling Authority is erroneous and not sustainable in law. Getting exemption under Section 5 of the Act, 1972 from the Central Government is not at all necessary in view of self contained Rules of the petitioner which prescribes the limit of gratuity. The entire finding of the Controlling Authority is based on surmises and relied on extraneous matter. Therefore, the same is not sustainable in law. The certificate proceeding initiated pursuant to the order of the learned Controlling Authority vide Certificate Case No. 551 of 2011, which is pending in the Court of Special Certificate Officer, Bhubaneswar to enforce the said order is also not equally sustainable in law. Concluding his argument, Mr. Sarangi prays to allow the writ petition in the interest of justice and equity.

(3.) Per contra, Mr. M.K. Mishra, learned Senior Advocate appearing for opposite party submitted that the present writ petition is not maintainable as there is statutory alternative remedy available to the petitioner. The impugned order has been passed on 29.11.2010. The period of limitation for appeal under Section 7(7) of the Act, 1972 is 60 days. The order having not been challenged before the appropriate forum within the period of limitation it has attained finality. The petitioner has also participated in the certificate proceedings bearing Certificate Case No. 551 of 2011 filed by opposite party which is pending in the Court of Special Certificate Officer, Bhubaneswar. The petitioner cannot challenge the certificate proceedings having accepted the order and not preferred any appeal against the same. The petitioner's action in challenging the order by way of the present writ petition after one and a half years suffers from the well established principles of waivers, acquiescence and estoppels. Applicability of the Rules for exempting the petitioner from the Act is dependent upon two essential conditions as envisaged under Section 5 of the Act, 1972. The first requirement under Section 5 of the Act, 1972 is that the establishment must obtain exemption from the appropriate government and there must be a notification to that effect. The second requirement is that the gratuity payable under the Rules should not be less favorable than the benefit conferred under the statute. The Rules, 2001 framed by the petitioner are deficient on both counts. It is also not the case of the petitioner that the establishment is exempted under Section 5 of the said Act. Since the society is not exempted under Section 5 of the Act, 1972 the Act has full application to the petitioner-Society. Section 4 of the Act, 1972 enumerates that an employee is entitled to get his gratuity subject to maximum of Rs. 3,50,000/-. The said benefit cannot be taken away by limiting the entitlement to Rs. 50,000/- only. No rule can be framed and made applicable to the employees which is less favorable in comparison to what one is entitled under the statute. Statutory entitlement cannot be curtailed by any rules framed by the employer.