LAWS(J&K)-2004-5-19

J AND K DHARAMARTH TRUST COUNCIL Vs. STATE

Decided On May 24, 2004
J And K Dharamarth Trust Council Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) COMMON questions of facts and law are involved in both the petitions and have been taken up for disposal and are being disposed of by this common order. Private respondents in both the petitions were employees of petitioner -trust. After their retirement on attaining age of 58 years, they approached Controlling Authority Under Payment of Gratuity Act for grant of gratuity under the provisions of Payment of Gratuity Act 1972. In OWP No: 1064/2001, vide impugned order dated 27.9.2001, an amount of Rs. 21,627/ - has been awarded in favour of Charan Dass/ respondent as gratuity for 24 years of service rendered by the said respondent with the petitioner - trust. In OWP No: 60/2003, vide impugned order dated 19.8.2002, an amount of Rs 15,951/ - along with interest @ 9% p.a. form June 1999 has been awarded in favour of Munshi Ram/respondent for 23 years of service rendered with the petitioner -trust.

(2.) BOTH these orders passed by the Controlling Authority Under Payment of Gratuity Act 1972 have been assailed on the ground that petitioner is a Charitable/Religious Trust and is engaged in maintaining various Shrines and Temples and other activities incidental thereto. Petitioner -trust is neither an establishment as defined under Section 3 of the Payment of Gratuity Act 1972 nor an organization to which provisions of Payment of Gratuity Act 1972 are applied. Therefore, employees of the trust cannot claim gratuity and impugned orders in both the petitions granting gratuity in favour of the private respondents, are without jurisdiction and liable to be quashed. Private respondent has filed counter affidavit in OWP No: 1064/2001 and resisted the present petition on the ground that petitioner has an alternate efficacious remedy by way of appeal in terms of Section 7(vii) of Payment of Gratuity Act and also that trust falls within definition of industry and its employees within definition of workmen, hence they are entitled to gratuity under the Payment of Gratuity Act. Reference is also made to judgment passed in OWP No. 79/1994 titled Dharamarth Trust Council v. State of J&K; and Ors. It has been stated that trust is running so many business establishments like Hotels and has so many shops and markets and is earning lacks of rupees as profit. Number of employees of Dharamarth Trust is more than 400. It is an establishment and is liable to pay gratuity under Payment of Gratuity Act.

(3.) IT is contended on behalf of the petitioner that neither trust falls within definition of employer nor respondent -employee falls within definition of workmen as defined under the provisions of Payment of Gratuity Act, 1972, therefore, Act has no application to the petitioner -trust, hence no gratuity can be granted under the Payment of Gratuity Act. Mr. Raghu Mehta learned counsel for the private respondents submit that Payment of Gratuity Act 1972, is applicable to the employees of the trust because trust is an establishment and is liable for payment of gratuity to its employees. He has further stated that establishment has not been defined under the Payment of Gratuity Act 1972, and same can be borrowed from Jammu and Kashmir Shops And Establishment Act 1966. He has further contended that definition of employee under the J&K; Shops and Establishment Act 1966 also satisfies the requirement of Payment of Gratuity Act 1972. J&K; Shops and Establishment Act define expressions commercial establishment and establishment Sections 2(4) and 2(8) of the J&K; Shops and Establishment Act 1966, read as under: