Jammu and Kashmir Cements Ltd. vs Controlling authority and Another

Mansoor Ahmad Mir, J.—Claimants-respondent No. 2 in all the writ petitions were the employees of petitioner-company and on reaching

the age of superannuation were paid the service benefits. Claimants-respondent No. 2 in all the petitions questioned the payment of gratuity and

filed different claim petitions in terms of the provisions of Payment of Gratuity Act, 1972 (for short, Act) before the Controlling Authority, District

Srinagar under the Act.

Employer, writ petitioner herein, filed objections and resisted the claim petitions, came to be allowed vide the impugned orders. Feeling

aggrieved the employer-writ petitioner herein has questioned all the said orders by the medium of present writ petitions on the ground that

claimants-respondent No. 2 in all the petitions are not falling within the meaning of 'employee' as defined in the Act.

In support of the writ petitions, Mr. Khawja addressed only one argument that the impugned orders passed by the Controlling Authority-

respondent No. 1 herein are without jurisdiction for the reason that claimants-respondent No. 2 herein are not falling within the definition of

'employee' as given in the Act. He has not questioned the impugned orders on any other ground.

Claimants-respondent No. 2 in all the petitions have filed objections and resisted the petition.

Mr. Haqani argued that the claimants-respondent No. 2 herein fall within the definition of 'employee' as given in the Act and the Controlling

Authority-respondent No. 1 herein had the jurisdiction and power to determine the claim petitions. It is apt to reproduce definition of 'employee' as

given in section 2(e) of the Act herein.

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.

The argument of learned counsel for writ petitioners is devoid of force and misconceived for the following reasons.

An employee who is holding the post under the Central Government or State Government and is governed by any other Act or Rules provided

for payment of gratuity is excluded. Applying the test in all these cases, claimants-respondent No. 2 in all the writ petitions are neither Central

Government nor State Government employee. In order to attract exclusion clause, an employer must fulfill two conditions - that the employee must

be of Central Government or State Government and governed by any other Act or Rules provided for payment of gratuity. Thus the word used is

'and' and not 'or'.

In the given circumstances these writ petitions merit to be dismissed. Accordingly all the writ petitions are dismissed along with all CMPs.

A copy of this order be placed in all the writ petitions.