Harendra Madanjit Desai (Dr.) vs Secretary, Kasturba Vaidyakiya Rahat Mandal and Others

Ravi R. Tripathi, J.—The Petitioner-Dr. Harendra Madanjit Desai is before this Court, being aggrieved of Order dated October 24, 2003 passed by the Controlling Authority under the Payment of Gratuity Act, 1972 in Gratuity Application No. PGA-39/2001, and order dated July 19, 2004 passed by the Appellate Authority under the Payment of Gratuity Act, 1977 in Appeal No. 29/2004.

The case of the Petitioner, as set out in the petition, is that the Petitioner has worked as a part time ''Anaesthetist'' and was removed from service, after a long service from March 15, 1958 to March 1995 (paragraph-1 of the petition). It is his own case that he has been paid his salary, provident fund, family pension and other dues, but, he was not paid gratuity and hence, he moved an application before the Controlling Authority under the Payment of Gratuity Act. The Petitioner was working with the hospital run by Respondent No. 1. i.e. Kasturba Vaidyakiya Rahat Mandal, as a part time ''Anaesthetist''. He was attending the operation theatre from 8-O''clock in the morning till the operation list was over, which used to be over by about 2-O''clock in the afternoon; that on an average 13 operations were performed in the hospital; that there was no other Anaesthetist in the hospital, meaning thereby, he was attending all the operations as Anaesthetist; and, that in addition to the aforesaid duties, he was also required to attend all the emergency calls, which, by its very nature, could be at any time, on any day, and at a very short notice.

The Petitioner has not made a categorical statement about his last drawn salary. In this regard, he has made the following averments in paragraphs 3 and 4 of the petition:

"...The operation theatre register of the Hospital has got elaborate record of the operations, name of doctors, name of patients and the time and other relevant details. Petitioner had to resign from this job when two fresh Anaesthetists were recruited in 1997 and a salary of Rs. 7,000/- per month was being paid to them. This was also increased to Rs. 9,000/- in the year 2000. This discriminatory treatment to the Petitioner after about 29 years of sincere service, disturbed the Petitioner and he resigned from the job...."

In the first paragraph, it is stated that he had put in service from March 15, 1958 to March 19, 1995.

It is stated that,

"In this background, the Petitioner approached the Controlling Authority, Respondent No. 3 with an application dated March 10, 2003 after all his attempts for persuasion failed with the Hospital authorities. He sought the gratuity for the period from March 15, 1958 to April 26, 2000 i.e. for 42 years at the salary of Rs. 9,000/- P.M. The total amount was estimated at Rs. 2,18,076/-...."

In the first paragraph, the service period is only upto 1995 and in the third paragraph, it is mentioned to be 1997 as it is stated that he had put in about 39 years service, which, then increases to 42 years i.e. March 15, 1958 to April 26, 2000. The Petitioner has not stated that he was paid salary of Rs. 9,000.00 at the time of cessation of his services and, therefore, he is entitled to gratuity on that basis.

On enquiry, the learned advocate appearing for the Petitioner, stated that a statement is made in the petition. The learned advocate invited the attention of the Court to the contents of the application filed before the Controlling Authority under the Payment of Gratuity Act, wherein, in paragraph-1, it is stated that:

"I, applicant, joined as ''Anaesthetist'' in the opponent- Establishment on March 19, 1958. Since then, till I retired, by submitting voluntary resignation on April 26, 2000, I had continuously discharged my duties.

I, applicant, was receiving monthly salary of Rs. 150.00 at the time of joining the duty with the opponent-Establishment, which increased to Rs. 1,625.00 in January 1986 and in 1987, I was paid Rs. 2,000.00.

On last pay increase of Rs. 375.00 being given by the opponent- Establishment, in October-1987, I, applicant, was getting monthly salary of Rs. 2,000."

In paragraph - 4, it is stated that,

"I, applicant, repeatedly made representation to the opponent-Establishment, which was not granted. I, applicant, had received the last salary on May 1, 1993. Thereafter, though I discharged my duties with the opponent-Establishment, as I was not given the legal, proper and reasonable pay increase, which was stopped by the opponent-Establishment illegally and in an improper manner, I had not taken any wages."

In paragraph-5, it is stated that,

"I, applicant, was granted by the opponent-Establishment in January-1986, a monthly salary of Rs. 1,650.00 only and by a monthly increase of Rs. 350.00 in October-1987, (in paragraph-3, monthly increase is mentioned to be Rs. 375.00), my salary had become Rs. 2,000.00 per month."

The Petitioner has then stated that, ''the opponent-Establishment had arrived at a settlement with doctors and other members of the staff, but, he was not included in that settlement; that he was entitled to get pay increase, equivalent to last drawn salary''. In support thereof, it is stated by the applicant that ''in the year 1997, two Anaesthetists were engaged by the opponent- Establishment at a monthly salary of Rs. 7,000.00, which was increased to Rs. 9,000.00 in the year 2000''. The applicant has mentioned in paragraph-6 of the application that, ''two Anaesthetists recruited by the opponent-Establishment, who were paid monthly salary of Rs. 7,000.00, were required to discharge duties only for 8 days in a month, their salary was increased to Rs. 9,000.00 in the year 2000.'' The case of the Petitioner is that though these appointees were much junior to the applicant, possessing much less experience than the applicant, they were discharging the duties for less period than the applicant and had joined the services later than the Petitioner; he be paid by the opponent-Establishment at the rate of Rs. 9,000.00 per month. In support of his application, the applicant relied upon a decision of Allahabad High Court, in Writ Petition No. 23548 of 1998, dated February 3, 1999, in the matter between Rajendra Deva and Additional Labour Commissioner, Kanpur v. Appellate Authority.

The Petitioner has produced Xerox copies of pay slips, four in number; one of December-1978 wherein monthly salary is shown to be Rs. 800.00, second of March 1979 showing monthly salary of Rs. 1,050.00, third of February 1980 showing monthly salary of As. 1,075.00 and fourth of December 1987 showing monthly salary of Rs. 2,000.00.

The contention of the learned advocate appearing for the Petitioner is that in view of the fact that the Petitioner was paid month to month and even provident fund was deducted, therefore, for all purposes, he was a ''workman'' of Respondent No. 1 and was entitled to receive the gratuity.

The learned advocate for the Petitioner also relied upon a certificate dated April 21, 1986, issued by Hon. Secretary of Kasturba Hospital run by Kasturba Vaidyakiya Rahat Mandal, wherein it is stated that the Petitioner is serving in this institution as Anaesthetist incharge of Anaesthesiology Department, since March 1958. What follows in the certificate is important, which makes it clear as to for what purpose, this certificate must have been issued by the concerned authority at the relevant time. It may be noted that the certificate is dated April 21, 1986 and it reads as under:

"During this period, he has tackled cases in all the age groups from Neonates to old age, and head to foot.

He has successfully administered anaesthesia to patients for surgery with various medical problems and complications.

I have found him intelligent, and hard working and efficient in his work.

I wish him all success and prosperous future."

The submission of the learned advocate for the Petitioner that this certificate is to be interpreted to mean that the Petitioner is an employee/workman and by virtue of this certificate, he becomes entitled to get the gratuity, is without any substance and the Court does not find it worth accepting.

The learned advocate submitted that the matter requires consideration for the reason that though certain documents were called for, details of which are set out in the application, a copy of which is produced at Annexure-D, page-18 to the petition, the same are not supplied. The contention is found without any substance, therefore, the same is rejected.

The learned advocate appearing for the Petitioner relied upon a decision of this Court in the matter of Gujarat State Road Transport Corporation v. Dr. Pravinchandra C. Nair, reported at 2004 (3) G.L.H. 291. Despite best efforts, this Court could not find out as to in what manner, the said decision has any application to the facts of the present case. The question involved in that matter was that honorary part time medical officers, who were rendering services to the Gujarat State Road Transport Corporation for quite long, were subjected to termination abruptly and, as contended by them, without any prior notice thereof. The grant of mandatory relief was the subject matter of the Letters Patent Appeal. The Division Bench, having found no substance, dismissed the petitions in limine. That decision has no application to the facts of this case.

The learned advocate for the Petitioner next relied on a decision of this Court in the matter of Arun Mills v. Dr. Chandraprasad C. Trivedi, reported in 1976 (32) FLR 323. The learned advocate took pains to read the judgment in its entirety, without being successful to point out as to in what manner the said decision of the Division Bench of this Court helps the Petitioner in getting the prayers made in this petition. The question before the Division Bench was as to whether a doctor can be said to have technical knowledge in performing his duties and, therefore, can he be said to be falling within the definition of the term, ''workman'', u/s 2(s) of the I. D. Act and if so, whether he would be entitled to bonus or not. The second aspect which was considered by the Division Bench was when the Industrial Court has granted dearness allowance by its award to all employees, without making difference between part time employees and full time employees, whether a doctor, working as a part time employee, is entitled to dearness allowance, as per the award or not. In the present case, the Controlling Authority under the Payment of Gratuity Act, has raised three issues, namely, (i) Whether the Payment of Gratuity Act, 1972 is applicable to the opponent- Establishment being a public trust; (ii) Whether the applicant falls within the definition of term, ''employee'', as contained in Clause (e) of Section 2 of the Payment of Gratuity Act, 1972; and, (iii) Whether the applicant is entitled to the gratuity, as prayed for. The controlling Authority has answered the first issue in ''affirmative'' and second and third issues in ''negative.''

The definition of the term, ''employee'', contained in Clause (e) of Section 2 of the Payment of Gratuity Act, 1972 reads as under:

"(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 Controlling Authority under the Payment of Gratuity Act, while deciding Issue No. 2, has recorded that the applicant is a competent doctor and is having his own dispensary. Besides that, he is rendering services in the opponent-Establishment on "call on basis" as Anaesthetist, for so many years; that he has not rendered permanent services to any one institution; that he had been rendering services "as and when required" during operation and, therefore, he does not fall within the definition of the term, ''employee'', under Clause (e) of Section 2 of the Act. This is a ''finding of fact'', which this Court does not find it appropriate to interfere with, as there are no convincing reasons for the same.

The Appellate Authority under the Payment of Gratuity Act, has taken into consideration all relevant factors and has not found any substance in the appeal and has rejected the same. The Appellate Authority has also taken into consideration various decisions of the High Court as well as the Honourable the Apex Court cited reason to interfere with the impugned orders passed by the Controlling Authority as well as the Appellate Authority under the Payment of Gratuity Act, 1972. Hence, the petition is dismissed in limine.