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Godhara Sarvajanik Shikshan Mandal v/s Dimpleben Bhrupeshkumar Shah

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    R/L.P.A. No. 128 of 2020

    Decided On, 03 February 2020

    At, High Court of Gujarat At Ahmedabad


    For the Appellant: Luv Shah, V.H. Desai, Advocates. For the Respondent: -----

Judgment Text

Vikram Nath, CJ.1. The present Letters Patent Appeal, under Clause 15 of the Letters Patent, is filed against the Judgment and Order, dated 25.9.2019 passed in Special Civil Application No.15983 of 2019.2. The facts in brief are that according to the Petitioner-Appellant, Respondent No.1, is a relative of one of the Trustees. After clearing the SSC examination, while pursuing her graduation from Maharaja Sayajirao University, Vadodara, she intended to gain teaching experience. As a result of this, only for that purpose, she was allowed to attend the School namely, Dr. Chamanlal Mehta Primary School, Anaj Mahajan Primary School and Rotary English Medium Primary School. Thereafter, upon completion of B.Ed., studies, Respondent No.1 joined another School and, according to the Appellant, approached Respondent No.5 by submitting her Form No.1. An amount of gratuity was claimed from the Appellant-Trust. A case was registered as Case No.116 of 2016 before the learned Assistant Labour Commissioner and without considering the objection with regard to maintainability and dehors the provisions, particularly, Section 7(1) of the Payment of Gratuity Act, 1972, (the "Act" for short) the authority directed the Appellant-Petitioner to pay an amount of gratuity to the extent of Rs.1,07,885 (Rupees One lakh Seven Thousand Eight Hundred Fifty Five only) with 10% Interest. It was also agitated by the Appellant-Petitioner that Respondent No.1 approached the authority i.e. Respondent No.5 after almost a period of 100 days delay and thereto, without filing any application for condonation of delay. Respondent No.1 raised the claim on the premise that her last drawn salary, when she said to have resigned on 2.5.2016, was Rs.9,000 per month. The Appellant-Petitioner has also stated that the said resignation was also not in consonance with Section 40(c) of the Act and was inoperative and non effective. There is no Employee and Employer relationship. Resultantly, a petition was filed to set aside the impugned Order, dated 20.4.2019 passed by Respondent No.5.3. It is further the case of the Appellant-Petitioner that the learned Single Judge out rightly without considering the aforesaid issues, has erroneously passed an order on 25.9.2019, dismissing the Petition and directed that the amount which has been crystallized, to be paid within two weeks from the date of receipt of the writ of the present order. Further, consequentially, the rate of interest on non payment is also fixed. It is this order, passed by the learned Single Judge in a Writ Petition, which is made the subject-matter of the present Letters Patent Appeal, before us.4. Mr. Luv Shah, learned Advocate appearing on behalf of Shri V.H. Desai, learned Counsel for the Appellant has vehemently contended that the view taken by the learned Single Judge is erroneous and not in consonance with the material on record. In fact, according to the learned Counsel, Teachers do not fall within the definition of "Workman" as provided under the provisions of the Payment of Gratuity Act and that being so, the error committed by the learned Single Judge is quite apparent. It has further been submitted that on the contrary, Respondent No.1's appointment was void ab initio and was not in consonance with the recruitment procedure and it was just with a view to give her some assistance in gaining teaching experience that she was accommodated and that would not ipso facto allow Respondent No.1 to claim the amount of gratuity as a matter of right. According to the learned Counsel, the learned Single Judge has not properly considered the relevant provisions, more particularly, Section 40(c) of the Act and has also not considered the amendment which took place in the provisions of the Payment of Gratuity Act. That being the position, the error committed by the learned Single Judge deserves to be corrected. It has further been contended that the learned Single Judge has erroneously come to the conclusion that the stand taken by the Appellant-Petitioner, is self contradictory and what is surprisingly held is that the orders of both the authorities are legal and just and in fact no independent conclusion is reflecting from the record, to substitute the view taken by the learned Single Judge. That being the position, there is hardly, any case made out by Respondent No.1. As a result of this, the Petition was required to be allowed. No other submissions have been made.5. Having heard the learned Counsel appearing on behalf of the Appellant-Petitioner and having gone through the material on record, first of all, we noticed that the original Petition filed by the Appellant-Petitioner is directed against the concurrent decisions taken by both the authorities below, which are based upon critical analysis of the evidence on record and while passing the impugned Order, the learned Single Judge has also assigned proper reasons as can be seen apparently from the impugned Order. Resultantly, we are not in a position to comment adversely upon the exercise of discretion undertaken by the learned Single Judge. The order cannot be said to be perversed in any form, as all possible contentions which had been raised have been dealt with by the learned Single Judge.6. Apart from this, we have also examined the issue raised before us, independently. After construing the relevant provisions, namely Section 2(e) of the Payment of Gratuity (Amendment) Act, 2009 and after analyzing the facts in the context of Section 40(c) of the Act, we are in conformity with the view taken by the learned Single Judge. We see no reason to interfere with the satisfaction arrived at by the learned Single Judge.7. Accordingly, we see no merit in the Petition filed by the Appellant. Additionally, both the authorities, namely the Controlling Authority as well as the Appellate Authority, on the basis of various documentary evidence, have clearly observed that it was the School authority itself who has given 'No Objection;' on the basis of which, Provident Fund has also been paid to Respondent No.1 and also confirmed by the School authorities that her services had been found satisfactory. One such certificate was also examined and analyzed by, the authorities and concurrent findings of facts of both the Statutory Authorities have been further analyzed by the learned Single Judge and then came to a conclusion that the stand of the Appellant is self-contradictory and there is no justifiable reason to disturb the finding of the statutory authorities. While examining the extra ordinary jurisdiction, looking at the scope enlisted for such exercise, it appears that the learned Single Judge has observed the peripheral limits of extra ordinary jurisdiction. Hence, we see no infirmity in the findings of the learned single Judge.8. The basis upon which the view is taken by both the authorities is a part of the record, which clearly indicates that not only there was a certificate issued by the School Authority itself, but even an Affidavit, in the form of an undertaking is also reflecting from the record at page 62. All these documentary materials have been examined by the authorities, which is clearly reflecting from the orders which are a part of the record and as such the attempt which has been made to create confusion by raising issues that the resignation of Respondent No.1 was not in the form in which it is required and the appointment itself was void-ab-initio, are just a part of a concoction and we see no reason to go into such aspect since, throughout, the authorities have concurrently held against the Appellant and even the learned Single Judge has also passed a reasoned order. Relevant observations contained in an Order passed by the learned Single Judge, we deem it proper to reproduce the same:"11. The stand taken by the Petitioner institution is self contradictory. On one hand it has questioned the entitlement of the Respondent No.1 to get the gratuity, on the ground that the resignation tendered by the Petitioner was not in accordance with the law and therefore, she should be construed to have continued in the employment and unless she actually resigns, she would be entitled to the specified amount under the Payment of Gratuity Act. On the other hand, on the ground that she was apprentice and was not having education qualification, her entitlement has been questioned.12. Section 40(c) of the Bombay Primary Education Act, when looked into, it provides that if a teacher desirous to tender his resignation he shall tender with the School Board, in jurisdiction of which, the School is situated. The acceptance of any resignation tendered in contravention of this Section as per this provisions shall be ineffective.13. The main contention which has been raised is of not having tendered the resignation to the Administrative Officer of the School Board in the jurisdiction of which the School of the Respondent No.1 is situated. It is therefore urged that she continued to be a Teacher and the resignation being in contravention of this provisions, the same shall be ineffective and she was construed to have been continued in service.14. Both Controlling Authority and the Appellate Authority under the Payment of Gratuity Act have rightly held and observed on the strength of the various documentary evidences that not only the School authority has given 'no objection' on the basis of which the PF has been paid to her, her services has been found satisfactory by the school authority and that certificate is one of the basis for both the authorities to hold in favour of Respondent No.1. The stand taken is completely self contradictory and the orders of both the authorities since are legal and justifiable, there is no reason for the Court to interfere. The Act itself is self contained when both the authorit

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ies, provided under the very Act, has concurrently held in favour of Respondent No.1, there hardly arises any reason for this Court to interferer.15. Having thus considered all the above aspects, this Court finds no merit even for issuance of notice and the matter deserves to be dismissed in limine. Hence, Rejected."9. In view of the aforesaid conclusion arrived at by the learned Single Judge, we see no reason to interfere in absence of any better material and submissions canvassed by the learned Counsel and as such keeping in view the observations made by the Apex Court on the issue of exercise of Appellate jurisdiction in Letters Patent Appeal, in the case of Management of Narendra & Co. Pvt. Ltd. v. Workmen of Narendra & Company, 2016 (1) LLN 12 (SC): 2016 (3) SCC 340: AIR 2016 SC 1748, particularly Para 5, we are not inclined to disturb the Order passed by the learned Single Judge. The Appellant has miserably failed to make out any case for interference.10. Accordingly, the Appeal is dismissed.11. Consequently, the connected Civil Application also stands dismissed.