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PETITIONER: JOTINDRA NATH ROY

       Vs.

RESPONDENT: SURENDRA HIKRAM SINGH AGARWAL & ORS.

DATE OF JUDGMENT:       09/04/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) KULDIP SINGH (J)

CITATION:  1996 AIR 1736            1996 SCC  (4) 403  JT 1996 (4)   296        1996 SCALE  (3)499

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin, J. 1.   Leave Granted. 2.   This appeal  by one  of the  retired employees  of  the Trust created  by  one  Later  Babu  Lal  Agarwal  has  been directed against  the order  dated July  25, 1995  passed in appeal by  the Division  Bench of  the Calcutta  High  Court setting aside  the order  passed on  December 12,  1994 by a learned Single  judge  of  that  Court  in  Civil  Suit  No. 703/1993 whereby  the learned Single judge has held that the appellant was  entitled for  the  pension  as  well  as  the gratuity from the said Trust. 3.   Late Babu  Lal  Agarwal,  during  his  life  time,  had executed a Will and testament creating a Trust for religious and charitable  purposes. In  a suit between one Amrita Bibi the widow  of the  pre-deceased son of late Babu Lal Agarwal and his  other heirs  a comprehensive  scheme was framed for administration of  the Trust.  Amongst  other  matters,  the scheme provided for grant of pension and other facilities to the employees  of the  Trust and  the relevant provisions in the said scheme were as under:-      "(a) The    Trustees    at    their      discretion may grant to such of the      employees of  the Estate  who  have      satisfactorily  served   with   the      Estate for  a period  of  not  less      than 30  years, pension  either  by      monthly payments or by payment of a      lump sum.      (b)  The  pension   granted  to  an      employee   in   case   of   monthly      payments should  not ordinarily  be      more than one third of his last pay      and in  case of  lump  sum  payment      should not  be a sum more than four

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    thousand rupees.      (c)  The  Trustees   may  at  their      discretion  also  pay  gratuity  to      such members  of the  family of  an      employee dying  during his  service      with the  Estate as they think fit.      The amount  of such  gratuity shall      not ordinarily  exceed  one  year’s      full  pay   last  drawn   by   such      deceased employee." 4.   The appellant  being a  retired employee  of the  Trust claimed pension  and gratuity  by  contending  that  he  had joined the  employment of  the  Trust  on  April,  1950  and retired as  Personal Assistant  of the  Trustees on April 8, 1993 while he was receiving a salary of Rs. 2322/- per month and that  having regard  to the relevant terms of the scheme prepared by  the High  Court and reproduced in the foregoing para, he  is entitled to pension at the rate of one third of the last  salary drawn  by him  and also the gratuity as per rules in  accordance  with  the  provisions  of  Payment  of Gratuity Act,  1972. It  was alleged  that  inspite  of  the demand having been made by the appellant the Trustees failed to release the amount of pension and gratuity payable to him and, therefore,  the appellant approached the High Court for a direction to the Trustees to pay pension and gratuity with interest. 5.   Learned Single  Judge took the view that the retirement benefits are  no longer  bounty of  the employers  but  they constitute a  right under  the law  and and,  therefore, the appellant was  entitled for  the  pension.  As  regards  the gratuity the  learned Single Judge relying on the provisions of Section  14 of the Payment of Gratuity Act, 1972 took the view that the scheme being silent with regard to the payment of gratuity  does not  alter the  situation  in  so  far  as entitlement  of  gratuity  is  concerned.  On  appeal  being preferred by  the  respondent,  one  of  the  Trustees,  the Division Bench  of the  High Court took a contrary view, set aside the  order of  the learned  Single Judge and dismissed the appellant’s claim for pension and gratuity. The Division Bench took  the view that the Trust cannot be regarded as an establishment as  defined in Section 2(5) of the West Bengal Shops  and  Establishment  Act,  1963  and,  therefore,  the provisions of  Payment of  Gratuity Act,  1962 could  not be attracted in  the case of the appellant as the appellant did not fall  in any  of the categories mentioned in sub-clauses (a) and  (c) of  sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972. 6.   Learned counsel  for the  appellant assailed  the  view taken by the Division Bench of the High Court and urged that the Division  Bench was  patently wrong  in holding that the appellant should  have filed a suit for pension and the same could not  be granted  by the High Court in a petition filed to that  affect. In  our considered  opinion there  is  much substance  in   this  submission.  The  Division  Bench  has disallowed the claim of pension on the ground that according to the  definition of  an employee  given in Section 2(e) of the Payment  of Gratuity  Act 1972  an  employee  means  any person whose  wages do  not exceed Rs. 2500/- per mensum and as it  was not  certain whether  the appellant  was  getting basic pay  to the  tune of Rs. 2322/- per month inclusive of D.A. or  not, he  could not be treated to be an employee. In our opinion  it is  clearly a  mistaken view of the Division Bench as  the appellant  had asserted in the petition before the High  Court supported  by an  affidavit  that  the  last salary drawn  by the appellant at the time of his retirement

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was Rs. 2322/- per month only and this fact has neither been controverted by  the respondent  nor there  is any assertion that the  appellant was  getting any  O.A.over and above the aforesaid amount.  In this  view of  the matter there was no occasion to  assume that  the appellant  was  getting  wages exceeding Rs. 2500/-. 7.   Apart from  the above  facts, the appellant had claimed pension on  the basis  of a  provision to that effect in the scheme itself. There is no dispute about the said scheme nor the said  scheme was  sought to be amended by the appellant. Clauses (a) and (b) of the scheme reproduced in para 3 above clearly go  to show  that the appellant was entitled for the pension as  he had  served for  a period  of about 43 years, much beyond the requisite period of 30 years. In the absence of any  material to  show that the services of the appellant were unsatisfactory  there is no reason to deny the exercise of discretion  in favour  of  the  appellant  for  grant  of pension as  envisaged in  the scheme of the Trust sanctioned by the High Court itself. 8.   Learned counsel  for the  appellant submitted  that the Division Bench took an erroneous view that the religious and charitable Trust  is not an Establishment within the meaning of Section 2(5) read with Section 2 (2) of West Bengal Shops and Establishment  Act, 1963 and consequently the provisions of Payment of Gratuity Act were not attracted to the instant case. 9.   After hearing  the learned  counsel for  parties and on perusal of the record we are unable to persuade ourselves to accede to  the view  taken by  the Division  Bench  in  this behalf. A  reading of  the judgment  of the  learned  Single Judge will  go to  show that  it was  nobody’s case that the provisions of  Payment of  Gratuity Act could not be pressed into service  but the claim of gratuity was contested on the ground that  the scheme  of the  Trust as framed by the High Court did not provide for payment of gratuity to the retired employees though  in the  event  of  an  employee  dying  in harness, certain provisions have been made in the scheme for payment of  gratuity to  the members  of the  family of such employee. It  appears that  no assertion was made before the High Court  that the  Trust was  not an Establishment within the meaning  of the  relevant provisions  of the  Payment of Gratuity Act. Neither any material has been placed before us nor any  argument was  advanced on  behalf of the respondent that the  Trust is  not an  Establishment as contemplated in the Payment  of Gratuity  Act. On the contrary the appellant has placed  on record  a notification  dated July  16,  1972 published by the Government of India, Ministry of Labour and Rehabilitation Department  published in  Part 2,  Section  3 (II) of  the Gazette  of India  whereby the  Trust Estate in question  was   treated  to  be  an  Establishment  and  the provisions of  Employees Provident  Funds and Family Pension Fund Act, 1952 were applied to the said Trust Estate of Babu Lal Agarwal  in relation  to employees  of  the  said  Trust treating it  to be  an Establishment  under the  said Act. A photo-copy of  the said  notification  has  been  placed  on record of  this court,  which has  not been  disputed by the respondent. This  position further strengthens the fact that the  Trust   has  been   treated  to  be  an  Establishment. Consequently, the our opinion having regard to the facts and circumstances of  the present  case the  provisions  of  the Payment of Gratuity Act would be attracted and the appellant would be entitled for the gratuity also. 10.  For the  aforesaid reasons  the appeal  succeeds and is hereby  allowed  with  costs.  The  impugned  order  of  the Division Bench  is set aside and the order of learned Single

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Judge is restored. Cost quantified at Rs. 2000/-.