Managing Trustee, Thiruvangad Sreeramaswami Temple, Thiruvangad Thalassery v. Appellate Authority Under the Payment of Gratuity Act, Regional Joint Labour Commissioner, Kozhikode; Controlling Authority Under the Payment of Gratuity Act, Kannur; C. Sankaran Nair; Seetha K. (Addl. R4)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** ## **WP(C).No. 5212 of 2011 (B) ---------------------------** ## **PETITIONER(S):** **--------------------------** **MANAGING TRUSTEE, THIRUVANGAD SREERAMASWAMI TEMPLE, THIRUVANGAD THALASSERY.** **BY ADVS.SMT.A.K.PREETHA SRI.C.ANIL KUMAR** ## **RESPONDENTS:** **----------------------------** ## **1. THE APPELLATE AUTHORITY UNDER THE** - **PAYMENT OF GRATUITY ACT (REGIONAL JOINT LABOUR COMMISSIONER, KOZHIKODE), OFFICE OF THE REGIONAL JOINT LABOUR COMMISSIONER, KOZHIKODE-673 001.** **2. CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, 1972(DISTRICT LABOUR OFFICER) OFFICE OF THE DISTRICT LABOUR OFFICER KANNUR-670 001.** **3. C.SANKARAN NAIR, S/O.CHATHU NAIR, THEYYIL HOUSE, WEST PONNIAM (P.O) THALASSERRY. 670 101.** ## **Addl.R4:** **SEETHA.K. W/O LATE SANKARAN NAIR THEYYIL HOUSE WEST PONNIAM (P.O.)** ## **ADDL.R4 IS IMPLEADED AS PER ORDER DT. 8.11.2013 IN I.A. 12606/11** **ADDL.R4 BY ADV. SRI.CIBI THOMAS BY GOVERNMENT PLEADER SRI.K.C.VINCENT** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jm/** ## **WP(C).No. 5212 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 16.10.2009 IN G.C. 180/2005.** **P2: COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 22.12.2010 IN G.A.C 7/2010.** ## **RESPONDENT'S EXHIBITS : NIL** **\\ TRUE COPY\\** **PA TO JUDGE** **K.VINOD CHANDRAN, J.** ## **-------------------------W.P.(C) No. 5212 OF 2011** **---------------------------------------** Dated this the 8[th] day of November, 2013 ## **J U D G M E N T** The petitioner, the Managing Trustee of Thiruvangad Sree Ramaswami Temple, challenges the orders issued by the Controlling Authority under the Payment of Gratuatiy Act 1972 (for brevity the 'Gratuity Act'), as confirmed by the appellate authority in Ext. P2. Admitted facts are that the petitioner joined the temple as an Attender in December, 1976 and retried from service on January, 2004. The entitlement to gratuity is not disputed. The only question is as to whether the employee is entitled to gratuity under the Gratuity Act or under the Madras Hindu Religious and Charitable Endowment Act 1951 (for brevity, 'the Madras Act'). The petitioner contends that the Temple does not come under the Gratuity Act and hence is not liable to its employees as provided under the Gratuity Act. As per Section 10 (A) of the Madras Rules promulgated under the Madras Act, the respondent is entitled to gratuity and the same has been paid. The payment as per Rule 10(A) is admitted by the petitioner. 2. The third respondent, who was the employee approached the Controlling Authority under the Gratuity Act and the Controlling Authority passed Ext. P1 order. An appeal was filed by the petitioner and the same was confirmed by Ext. P2. Pending W.P.(C) No. 5212 OF 2011 2 the present proceedings, the third respondent expired and his wife has been impleaded as the 4[th] respondent. 3. I have heard the learned counsel for the petitioner and the learned counsel for the 4[th] respondent. 4. The learned counsel appearing for the petitioner would place reliance on two decisions of this court reported in **Thirumullappully Devaswom v. Commissioner for Workmen's Compensation [1979 (1) LLJ 398]** and **Narayanan Namboodiri v. Cochin Devaswom Board [1979** **(2) LLJ 446]** to contend that a Devaswom in management of a Temple would not come under the definition of a "shop" or an "establishment" under the Kerala Shops and Commercial Establishments Act 1960, (for brevity, 'the Shops Act') and hence will not be covered under the Gratuity Act also. The learned counsel for the respondent however, would rely on a Full Bench decision of the Madras High Court reported in **E.Gopal v. Arulmigu Dhandayuthapaniswamy Temple [2013 (4) KLT** **SN 41 (C.No.36)]** wherein the Full Bench had dissented from the Kerala High Court decision reported **Narayanan Namboodiri's Case (** _supra_ **).** The learned Counsel for the respondent would also contend that the benefits of gratuity available under the Gratuity W.P.(C) No. 5212 OF 2011 3 Act, being more beneficial to the employee than that entitled under the Madras Act and Rules, necessarily the same would have prevalence. To that end, the 4[th] respondent relies on **Som Prakash Rekhi v.Union of India [1981 (I) SCC 449]** and **Municipal Corporation of Delhi v. Dharam Prakash Sharma and Another [1998 (7) SCC 221]** . The fourth respondent also relies on **Jotindra Nath Roy v. Surendra Bikram Singh Agarwal [AIR 1996 SC 1736]** to contend that a Religious and Charitable Trust also would be covered under the Gratuity Act. 5. **Thirumullappully Devaswam's Case (** _supra_ **)** considered the issue whether Devaswom is a commercial establishment. The expression "Devaswom" was held to be a compendious expression taking in a temple, its property and its management and considering the paramount object of the institution as well as the particular functions it discharges, it was held that a Devaswom can never be considered as an establishment in which the persons employed are being engaged in office work. **Narayanan Namboothiri (** s _upra_ **)** also dealt with the very same issue. Looking at Section 1(3) of the Gratuity Act, it was held that there is no notification under sub-clause (c) and it is obvious that a Devaswom would not be covered under sub-clause W.P.(C) No. 5212 OF 2011 4 (a). Sub-clause (b) was read along with the definition of “shops” and “establishments” as provided in the Shops Act, and it was found that a temple would not come under the said definition. 6. On reading of the Full Bench of the Madras High Court in ## **Gopal Vs. Arulmigu Dhndayuthpaniswamy [2013 (4) KLT SN** **41]** , it is seen that the Full Bench went on the premise that, as per sub-clause (b) of Section 1(3) of the Gratuity Act, every establishment within the meaning of any law for the time being in force in relation to the establishment in a State are covered and hence an industrial establishment coming within the meaning of Section 2 (2) (g) of the Payment of Wages Act would also be included in the said definition. This finding was rendered on the strength of the decision of the Supreme Court in **State of Punjab v. Labour Court, [1980 (1) SCC 4]** . The issue raised before the Supreme Court was whether Gratuity Act would apply to industrial establishments under the Payment of Wages Act 1936, a central enactment, which was in force in the State of Punjab. The Hon'ble Supreme Court held that the term 'establishment' under Section 1 (3) (b) of Gratuity Act being not qualified, any establishment coming within the ambit of any enactment would fall under the W.P.(C) No. 5212 OF 2011 5 Gratuity Act. It was held that sub-clause (b) of Section 1(3) of the Gratuity Act was not intended to cover only Shops and Commercial Establishments in a State enactment. The Gratuity Act would be applicable to any establishment, defined under any enactment, Central or State, which was in force in the State. However a Temple or Devaswom does not come within the definition of a shop or establishment; so defined in any of the enactments applicable within the the State of Kerala. 7. It is pertinent that Section 13(b) makes the Gratuity Act applicable to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State. Temple does not come within the meaning of shop or establishment, as defined in any law which is/was in force in its State. The law applicable to shops and commercial establishments in the State of Kerala is the Kerala Shops and Commercial Establishment Act. It was looking at the definitions of the terms "shop" and "commercial establishment" that the aforementioned two decisions of the Kerala High Court was rendered. An examination of the Kerala Shops and Commercial Establishment Act and the definitions thereunder, alone may not suffice in view of the judgment of the Supreme Court in **1980 (1)** W.P.(C) No. 5212 OF 2011 6 **SCC 4)** . But 'Devaswom' has not been shown to be an 'establishment' as defined in any enactment, within the State of Kerala. 8. The learned counsel for the fourth respondent placed reliance on **Jotindra Nath Roy's Case (** s _upra_ **).** In my view the said decision is not applicable to the facts of the instant case. In **Jotindra Nath Roy's Case (** s _upra_ **),** a Trust Estate was held to be an establishment under the Gratuity Act for the reason that a Government notification dated 16.07.1972 treated the Trust Estate as an establishment under the Employees Provident and Family Pension Fund Act, 1952. There is no notification herein deeming the trust or the Devaswoms, an establishment covered under the Gratuity Act. There can be no dispute to the dictum that the employees covered under the Gratuity Act, would be excluded from its purview only in the circumstances of another scheme or statute granting them better benefits than that provided in the the Gratuity Act. However, the crucial question would be, as to the coverage under the Payment of Gratuity Act. If an establishment is covered under the Gratuity Act, the above proposition, would apply on all fours. However, in the present case, the question to be decided is whether the petitioner would be an establishment under the W.P.(C) No. 5212 OF 2011 7 Gratuity Act. 9. As was noticed in **Narayanan Namboodiri's Case (** s _upra_ **),** no notification under sub-clause (c) to Section 1(3) is issued with respect to a Temple or Devaswom. The petitioner herein definitely is not a factory, mine or other establishment specifically mentioned in sub-clause (a) of Section 1(3). One has to look at whether the establishments covered under sub-clause (b) of Section 1 (3). As was noticed above a Temple is not a shop or establishment as defined in the Kerala Shops and Commercial Establishments Act or any other enactment applicable in the State. In the circumstances, it cannot at all be said that the petitioner a Temple would come under the definition of either shops or establishment as defined under the Shops Act or any other enactment. Then, the petitioner would not be covered under the Gratuity Act. Hence, there could be no comparison of the benefits available under the Gratuity Act and the Madras Act and Rules, since the petitioner does not fall under the Gratuity Act. On the above findings, the orders of the Controlling Authority and the Appellate Authority produced respectively as Exts.P1 and P2 are found to be totally without jurisdiction. The petitioner being not covered under the Gratuity Act, the authorities under the Gratuity W.P.(C) No. 5212 OF 2011 8 Act could not have passed such orders. Exts.P1 and P2 are hence set aside and the writ petition is allowed. No costs. ## Sd/ **K.VINOD CHANDRAN, JUDGE** jm/ \\ TRUE COPY \\ PA TO JUDGE