Schol Of Engineering (R K ... vs Jignesh Shambubhai Vishpara
2022 Latest Caselaw 528 Guj

      C/SCA/17866/2021                               ORDER DATED: 17/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17866 of 2021
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     SCHOL OF ENGINEERING (R K UNIVERSITY) THROUGH DIRECTOR
                              Versus
                  JIGNESH SHAMBUBHAI VISHPARA
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Appearance:
MR PANKAJ R DESAI(3120) for the Petitioner(s) No. 1
JEET Y RAJYAGURU(8039) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 17/01/2022
                               ORAL ORDER

1. The present writ petition is filed seeking quashing and setting aside the order dated 31.12.2020 passed by the Controlling Authority, Rajkot in Gratuity Application No.108 of 2019 and also the order dated 27.04.2021 passed by the Appellate Authority in Gratuity Appeal No.18 of 2021.

2. Learned advocate Mr.Pankaj Desai appearing for the petitioner has submitted that the impugned order passed by the Controlling Authority is required to be quashed and set aside since the same is illegal and de hors the provision of law. He has submitted that the respondent-employee had filed an application before the Controlling Authority being Gratuity Application No.108 of 2019 and had demanded an amount of Rs.3,48,410/- and after hearing the present petitioner, the impugned order has been passed. It is submitted by him that the impugned order is not a speaking order and the same is required to be quashed and set aside. Similarly, it is submitted by him that the Appellate Authority did not decide the other defense raised by the petitioner-College that the definition of an employee as defined under Section 2F of the Payment of Gratuity Act, 1972 (for short "the Act") will not attract in the case of the petitioner. No further submissions are advanced.

C/SCA/17866/2021 ORDER DATED: 17/01/2022

3. Per contra, learned advocate Mr.Jeet Rajyaguru appearing for the respondent-employee has submitted that the petitioner has not raised any contentions before the Controlling Authority and after considering the application of the respondent, the Controlling Authority has passed the order dated 31.12.2020 directing the petitioner to pay an amount of Rs.3,48,410/- towards gratuity. He has submitted that the respondent was working as a Librarian since 13.07.2006 and thereafter, resigned on 28.12.2018 and he filed an application on 03.08.2019 claiming the gratuity amount, which has been precisely allowed by the Controlling Authority after hearing both the sides. Thus, he has submitted that the impugned order may not be set aside.

4. I have heard the learned advocates appearing for the respective parties.

5. The facts, as narrated hereinabove, are not in dispute. The respondent was serving as a Librarian with the petitioner-University and was appointed on 13.07.2006 and on 28.12.2018 he resigned from the service. Since the respondent was not paid any gratuity amount, he was constrained to file an application claiming the gratuity. The Controlling Authority, by the impugned order dated 31.12.2020 has allowed the application. A bare perusal of the aforesaid order reveals that the petitioner has not raised any contentions or made any submissions before the Controlling Authority, except that the dispute between the respondent and the petitioner can only be examined by the affiliated colleges tribunal. It is further recorded that the petitioner has raised contention that the respondent, being an Assistant Professor, could not have filed an application under the Act. Thereafter, against the aforesaid order, the petitioner filed an appeal, which was also rejected. Before the Appellate

C/SCA/17866/2021 ORDER DATED: 17/01/2022

Authority, the contention was raised by the petitioner that the order was not a speaking order. The further contention was also dealt with by the Appellate Authority that the respondent would fall within the definition under Section 2(e) of the Act.

6. Learned advocates appearing for the respective parties have submitted that it would be appropriate if the issue with regard to jurisdiction of the Controlling Authority for deciding the applications filed under the Act may be decided by this Court.

7. It would be apposite to refer to the judgment of the Division Bench in the case of Saurashtra University vs. Saurabh Chandrakant Bhatt & Anr., rendered in Letters Patent Appeal No.713 of 2016. The Division Bench in paragraph no.8.08 has held thus:-

"8.08. Now, so far as the submission on behalf of the appellant that as earlier the respondent No.1 approached the Gujarat University's Services Tribunal claiming retirement benefits including payment of gratuity by way of Application No.38 of 2010 and the learned tribunal rejected the same, which came to be confirmed by the learned Single Judge of this Court while passing order in Special Civil Application No. 2254 of 2011 and therefore, on the ground of res-judicata the respondent No.1 shall not be entitled to claim gratuity under the Payment of Gratuity Act is concerned, again the same has no substance. It is required to be noted that, as such, the respondent No.1 herein was denied the retirement benefits on the ground that he was not in regular employment and that he was appointed on the post which was not sanctioned and therefore, he was held not entitled to claim pensionery benefits / retirement benefits / gratuity as per the Rules and Regulation of the University. Apart from the above, it is required to be noted that the University Tribunal as such has no jurisdiction to adjudicate the dispute with respect to the gratuity under the Payment of Gratuity Act. Considering the provisions of the Payment of Gratuity Act, only the controlling authority under the Payment of Gratuity Act is the sole authority to adjudicate the dispute / issue with respect to gratuity under the Payment of Gratuity Act. In the present case, on an application given by the respondent No.1 herein, the controlling authority, which is vested with the powers to adjudicate such issue, has held that

C/SCA/17866/2021 ORDER DATED: 17/01/2022

the respondent No.1 herein is entitled to the gratuity under the Payment of Gratuity Act."

Thus, the Division Bench has held that the University Tribunal as such has no jurisdiction to adjudicate the dispute with regard to gratuity under the Act and the appropriate authority would be Controlling Authority under the said Act.

8. Thus, the application filed by the respondent before the Controlling Authority claiming his gratuity amount will be maintainable. So far as the issue of the respondent being covered under the definition of an "employee" as defined in Section 2 (e) of the Act is concerned, Section 2(e) of the Act defines "employee", which reads as under:-

"Section 2:-Definition

(e)"employee" means any person (other than an apprentice) employed on wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

9. Thus, looking to the definition, the respondent was serving as a Librarian will fall within the category of "workman" as defined under Section 2(e) of the Act. It is also not the case of the petitioner that the provisions of the Act is not applicable to the institute. Hence, no illegality or infirmity is found in the impugned orders. Hence, the present writ petition fails. Notice is discharged.

(A. S. SUPEHIA, J) ABHISHEK/PC-1