{"id":161551,"date":"2010-07-30T00:00:00","date_gmt":"2010-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-kashiben-on-30-july-2010"},"modified":"2017-12-14T08:11:39","modified_gmt":"2017-12-14T02:41:39","slug":"state-vs-kashiben-on-30-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-kashiben-on-30-july-2010","title":{"rendered":"State vs Kashiben on 30 July, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Kashiben on 30 July, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/10481\/1999\t 7\/ 7\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 10481 of 1999\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE KS JHAVERI\n \n \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n\n \n\nSTATE\nOF GUJARAT - Petitioner(s)\n \n\nVersus\n \n\nKASHIBEN\nRANCHHODBHAI MALIWAD & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance : \nMR KP RAVAL\nAGP for Petitioner(s) : 1, \nMRS PC FERNANDEZ\nfor Respondent(s) : 1, \nMR MP SHAH for Respondent(s) : 2, \nMS.\nKRUTI M SHAH for Respondent(s) : 2, \nMS VD KAPADIA for\nRespondent(s) : 2, \nMR KP RAVAL AGP  for Respondent(s) :\n3, \n========================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n\t\n       Date : 30\/07\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
1.\t\tThe
\nissue involved in this petition is squarely covered by the decision
\nof this Court rendered in Special Civil Application No. 10483 of 1999
\ndated 03.08.2007. The said order reads as under :-\n<\/p>\n
“The
\npetitioner-State Government, being aggrieved by the order dated 6th
\nApril, 1999 passed by the Appellate Authority under the Payment of
\nGratuity Act, 1972, Vadodara,  is before this Court with a submission
\nthat the Appellate Authority was absolutely unjustified in directing
\nthe State Government to make the payment of gratuity to the
\nclaimant\/workman – Ramkrushna Gopal Soni, though it has come on
\n record that Ramkrushna Gopal Soni was an employee of Girls Remand
\nHome run by a registered Trust.\n<\/p>\n
2.\t\tShri
\nI.M. Pandya, learned Assistant Government Pleader for the
\npetitioner-State, submitted that a perusal of the order made by the
\nControlling Authority under the Payment of Gratuity Act, 1972
\n(Annexure-B to the petition) would show that the dispute was between
\nthe workman – Ramkrushna Gopal Soni and the Secretary of the
\nRemand Home and the State was not a party and the final order was
\nmade by the Controlling Authority against the Trust only. It is
\nsubmitted that the State Government could not be joined as a party
\nrespondent at the instance of a person, who had lost before the
\nControlling Authority. His further submission is that joinder of the
\nState Government\/Director, Social Security Department was patently
\nillegal. According to him, if the dispute was between the workman and
\nthe employer and even if the employees’ salaries were sanctioned or
\ngranted by the State Government, then too, there would be no
\nrelationship of master and servant\/ employer and employee between the
\nState and the respondent-workman. He submitted that the Appellate
\nAuthority erred in issuing such directions.\n<\/p>\n
3.\t\tShri
\nG.C. Ray, learned Counsel for respondent No.1-workman, however,
\nsubmitted that in fact, the claim was made against the registered
\nTrust and he did not join the State Government as party. On being
\nasked, he stated that as no relief was given against the State in the
\norder passed by the Controlling Authority, the workman did not
\nchallenge the said order, nor made any claim for grant of any relief
\nagainst the State Government.\n<\/p>\n
4.\t\tMs.\n<\/p>\n
Kruti Shah, learned Counsel for respondent No.2-Trust, appeared at a
\nstage when both the learned Counsel, Shri I. M. Pandya and Shri G.C.
\nRay, had completed their arguments. She appeared and argued the
\nmatter, however, finding it difficult to give replies to the
\nquestions put by the Court, she started praying for time. When the
\nCourt refused to grant the adjournment, she said that there was some
\njudgement of Mr. Justice Ravi R. Tripathi wherein the learned single
\nJudge had observed that it was the duty of the State Government to
\nmaintain the Remand Homes and the State would be obliged to pay
\nsalary, etc. to the workman working in the Remand Homes. When the
\nCourt again asked for copy of the judgement, she prayed for time. The
\nCourt again refused to grant time. On this, she said that the Court
\nmay record her request and after rejecting the same, may proceed to
\ndecide the matter. Ordinarily, such curt words when are used by a
\nCounsel, they perilously border a serious risk, but, in case of Ms.
\nShah, who is yet to see her life and different colours of it, I do
\nnot propose any action against her, but, would only advise her that
\nresult oriented advocacy and high pitched arguments in the Court do
\nnot result into success. To be more successful in a Court, one has to
\nbe clear in his\/her thoughts, ready on law and if not absolutely, a
\nlittle mannerful in the Court. Courtesy demands courtesy and if one
\nlacks courtesy, then, at least in the Court of law, he\/she would not
\nbe respected by others. The manner in which she had behaved in the
\nCourt is not palatable.  Though I could record my displeasure against
\nher conduct, but, with folded hands, I will request her to mend her
\nbehaviour and come upto the expectations of the noble profession.\n<\/p>\n
5.\t\tIn
\nthe present matter, the workman made an application to the
\nControlling Authority for a direction to the employer to pay the
\namount of gratuity. The workman did not make any claim against the
\nState Government nor the Trust ever stated before the Controlling
\nAuthority that the gratuity should be paid by the State Government
\neither under the provisions of the social security or that it was the
\nduty of the State Government to maintain and run the Remand Homes for
\nGirls. It was a plain and simple matter between the master and
\nservant. If the State Government, finding its inability to run the
\nRemand Homes,  permits some institution, including registered trust,
\nto run the Remand Homes and authorise the Remand Homes and its
\nmanagement\/administration to appoint and employ the workman and also
\nagrees to disburse some money in favour of such management\/trust so
\nthat they can meet their day to day expenses. It cannot be said that
\nsuch workman becomes the employee of the State Government.\n<\/p>\n
6.\t\tIt
\nis not in dispute before me that day to day management of the Remand
\nHome is in the hands of the Trust, they are managing the Remand Home
\nand they are simply getting the grant-in-aid from the State
\nGovernment. The grant-in-aid if is given by the State Government to
\nany authority, then, employees of such authority, institution or
\nassociation would not become the employees of the State Government.
\nIn number of schools and colleges, the State Government issues grant,
\ndelivers grant, sanctions grant to many of the corporations,
\npanchayats and other authorities, the Government extends financial
\ngrant, but, such person, though under the control of the Government
\nbecause of the financial assistance, would not become the Government
\nor State for the purposes of Article 12 of the Constitution of India.\n<\/p>\n
7.\t\tIt
\nis not in dispute that the respondent-workman was employed as an
\nemployee by the Trust. It is also not in dispute that the Trust was
\nappointing, disciplinary and dismissal authority for the said
\nworkman. If the respondent-Trust was exercising absolute control  as
\na master over the workman, then, the liability of the Trust was to
\nmake payment of the salary and gratuity. It would have been a
\ndifferent thing for the Trust to say that they would make the payment
\nof gratuity after they receive the grant, but, they could not join
\nthe State as a party  respondent before the Appellate Authority and
\nseek an order against the present petitioner for payment of gratuity.\n<\/p>\n
8.\t\tThe
\nrespondent-Trust, though knew well that the State or the Director,
\nSocial Security was not a party before the Controlling Authority,
\nwithout seeking any permission from the Appellate Authority, it
\njoined the Director as a party respondent. Addition of such party
\nbefore the Appellate Authority is patently illegal and speaks bad
\nagainst such appellant, who with an ulterior motive joins the State
\nGovernment as a party respondent.\n<\/p>\n
9.\t\tThe
\npayment of Gratuity Act, 1972 (39 of 1972) is an Act to provide for a
\nscheme for the payment of gratuity to employees engaged in factories,
\nmines, oilfields, etc. and for matters connected therewith or
\nincidental thereto.\n<\/p>\n
10.\t\tThe
\nword ‘gratuity’ imports an idea of ‘gift’ or ‘present’ in return for
\nfavour of the services generally, but, the Payment of Gratuity Act,
\n1972 reverses this norm. The Act provides that a person who has
\ncompleted five years or more service with the Establishment as an
\nemployee would be entitled to some gratuity. The gratuity would be
\npayable to an employee by the employer on superannuation of the
\nemployee or on his retirement or resignation or on his death or
\ndisablement due to accident or disease.\n<\/p>\n
11.\t\tSection
\n2(e) of the Act provides that an ’employee’ means any person (other
\nthan an apprentice) employed on wages, in any establishment, factory,
\nmine, oilfield, plantation, port, railway company or shop to do any
\nskilled, semi-skilled, or unskilled, manual, supervisory, technical
\nor clerical work, whether the terms of such employment are express or
\nimplied, and whether or not such person is employed in a managerial
\nor administrative capacity, but does not include any such person who
\nholds a post under the Central Government or a State Government and
\nis governed by any other Act or by any rules providing for payment of
\ngratuity.\n<\/p>\n
\t\tA
\nfair reading and understanding  of the definition of ’employee’ would
\nclearly show that an employee is the person who is engaged in or
\nemployed on services by an employer.\n<\/p>\n
12.\t\tSection
\n2(f) provides that an “employer means, in relation to any
\nestablishment, factory, mine, oilfield, plantation, port, railway
\ncompany or shop  –\n<\/p>\n
(i)
\n\tbelonging to, or under the control of, the Central Government or a
\nState Government a person or authority appointed by the appropriate
\nGovernment for the supervision and control of employees, or where no
\nperson or authority has been so appointed, the head of the Ministry
\nor Department concerned,<\/p>\n
(ii)\tbelonging
\nto, or under the control of, any local authority, the person
\nappointed by such authority for the supervision and the chief
\nexecutive officer of the local authority,<\/p>\n
(iii)\tin
\nany other case, the person, who, or the authority which, has the
\nultimate control over the affairs of the establishment, factory,
\nmine, oilfield, plantation, port, railway company or shop, and where
\nthe said affairs are entrusted to any other person, whether called a
\nmanager, managing director or by any other name, such person;”\n<\/p>\n
\t\tPerusal
\nof Clause (iii) of Section 2(f) of the Act would make it clear that
\nan employer would be a person who has the ultimate control over the
\naffairs of the establishment, etc. and where the said affairs are
\nentrusted to any other person, whether called a manager, managing
\ndirector or by any other name. Therefore, to show that the State
\nGovernment was the employer, the Trust was required to show to the
\nCourt that the State Government had ultimate control over the affairs
\nof the establishment. If the respondent-Trust is unable to prove that
\nthe State had ultimate control over the affairs of the establishment.
\nIf it floats on the surface of records that the Trust was in absolute
\ncontrol of the affairs and was to act as an employer of the workman,
\nthen, the Trust would not be allowed to say that because the State
\nextends grant-in-aid, the workman would be deemed to be an employee
\nof the Government and even if that is not so, the State would be
\nobliged to make payment of gratuity to the employee.\n<\/p>\n
13.\t\tIt
\nwas also contended by Ms. Shah that the Remand Homes are to be run by
\nthe State Government and if the State is not ready and willing to
\nextend the grant-in-aid or pay the expenses to the Trust, then, the
\nTrust may close down their activities.  I am shocked to hear this
\nargument. When a Trust comes into existence with a laudable object,
\nthen, the Government, so also the public, repose their trust in the
\nsaid Trust. A Trust cannot say that they would run charitable
\nactivities or would manage the Remand Homes only if money is paid to
\nthem. If some money is to be paid to them, then, it is better that
\ninstead of reposing any trust in the Trust, some Non-Government
\nOrganisations (NGOs) are employed to run such institutions. The
\nrespondent-Trust cannot be allowed to say or threaten the system that
\nif money is not paid to them, they would stop their charitable
\nactivities. Even if they proposes to do it, it is for them and the
\nCourt has nothing to do with it.\n<\/p>\n
14.\t\tIn
\nthe present matter, the Appellate Authority, without appreciating
\nthat the State Government could not be held liable to make payment of
\nthe gratuity to the employee\/workman, erred in observing that the
\nState is  liable to make the payment.\n<\/p>\n
15.\t\tFor
\nthe reasons aforesaid, I must hold that the order passed by the
\nAppellate Authority, requiring the State to make payment of gratuity
\nto the workman or to extend grant in favour of the respondent-Trust,
\nis patently illegal, the said order cannot be allowed to stand, it
\ndeserves to and is, accordingly, quashed.\n<\/p>\n
16.\t\tIt
\nis also to be seen that against the liability fixed upon the
\nrespondent-Trust, the said Trust has not come up with any Writ
\nApplication, therefore, their liability is absolute.\n<\/p>\n
17.\t\tThe
\npetition is allowed. The State is held not liable to make payment of
\ngratuity. Rule is made absolute. No costs.”\n<\/p>\n
2.\t\tIn
\nview of the aforesaid order,  this petition stands disposed of on the
\nsame terms. Rule is made absolute to the above extent with no order
\nas to costs.\n<\/p>\n
[K.S.\n<\/p>\n
JHAVERI, J.]<\/p>\n
\/phalguni\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Kashiben on 30 July, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print SCA\/10481\/1999 7\/ 7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10481 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-161551","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Kashiben on 30 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-kashiben-on-30-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Kashiben on 30 July, 2010 - 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