JUDGMENT
Permod Kohli, J.
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. Expressions employee and employer have been defined in Section 2(e) and 2(f) of the Payment of Gratuity Act 1972. These provisions are reproduced below:
“2(e) “employee” means any person (other than an apprentice) employed on wages in any establishment, factory, mine, oilfield, plantation, port, railway, company or shop, to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied and whether or not such person is employed in a managerial or administrative capacity, 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.
2(f) “employer” means a relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop
(i) belonging to, or under the control of the Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees or where no person or authority has been so appointed, the head of the Ministry or the Department concerned.
(ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no person has been so appointed, the chief executive officer of the local authority.
(iii) in any other case, the person, who, or the authority which, has the ultimate control over affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person.”
4. 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:
“2(4) “commercial establishment” means an establishment which carries on any business, trade or profession or any work in connection with, or incidental or ancillary to, any business, trade or profession and includes:-
(a) an establishment which carries on the business of advertising, commission agency forwarding or commercial agency, or which is a clerical department of a factory or of any industrial or commercial undertaking:
(b) an insurance company, joint stock company, bank, brokers office and exchange, but does not include factory, shop, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment:
“2(8) “establishment means” a shop, commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment to which this Act applies and includes such other establishment as the Government may by notification in the Government Gazette, declare to be an establishment for the purpose of this Act.
5. From the above definitions it is apparent that trust does not fall within the meaning of commercial establishment or establishment as indicated in Sections 2(4) and 2(8). In addition to this, Government has power to declare any establishment’s an establishment for the purposes of this Act by issuing a notification. Admittedly, no such notification has been issued declaring the trust as an establishment for the purpose of Shops and Establishment Act 1966. Therefore, even if contention of the respondents is accepted, trust does not fall within the definition of establishment as defined under the Payment of Gratuity Act 1972, as also under the Shops and Establishment Act 1966. Expression employee used in Shops and Establishment Act 1966 is not for purpose of payment of gratuity. Some expression may have different meaning under the different statutes. Meaning prescribed under one Act cannot be carried into other unless legislative intend is clear in this regard. Since expression employee and employer have been specifically defined under the provisions of Payment of Gratuity Act 1972, same cannot be borrowed from the other statute including Shops and Establishment Act. From the reading of the provisions referred to above, it is clear that trust does not fall within the definition of establishment or employer. Contention of the respondents that alternate efficacious remedy is available also cannot be accepted for the reasons that writ petition was entertained in the year 2001 and it is too late to dislodge the petitioner on the ground of availability of alternate remedy. Apart form this, it is settled proposition of law that where impugned order is without jurisdiction, alternate efficacious remedy of writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of Constitution of State of Jammu and Kashmir is no bar. In the present case orders impugned are clearly without jurisdiction and therefore, the remedy of invoking writ jurisdiction is available to the petitioner. For what has been stated above, these petitions are allowed. Impugned orders dt. 27-9-2001 and 19-8-2002 are hereby quashed.