1 CM(M) No. 121/2025 Along with clubbed matters S. No. 6 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 121/2025 C/w CM(M) No.122/2025 CM(M) No. 123/2025 CM(M) No. 124/2025 CM(M) No. 125/2025 CM(M) No. 126/2025 Devki Arya Putri Patshala Boys and Girls High School …Appellant/Petitioner(s) Through: Mr. Viqas Malik & Mr. Hamza Draboo, Advocates Vs. Davinder Kour Suri ...Respondent(s) Through: Mr. Zahoor Jan, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT (ORAL) 16.05.2025 1. Petitions, numbered above, raise common and akin questions of facts and law and are, thus, taken together for common decision. 2. In all the petitions, the petitioner is aggrieved of the orders dated 06.11.2024 passed by the Authority under Payment of Gratuity Act, 1972 (Assistant Labour Commissioner), Srinagar (for short the “Authority”) in the applications/petitions, whereby the petitioner- school has been directed to pay the amount of gratuity in favour of the respective respondents with a further stipulation to deposit the said amount within a period of thirty days, failing which the law shall take its own recourse and also of the order dated 03.03.2025 issued by the Special Tehsildar Recoveries, Kashmir Province, Srinagar, directing the petitioner-school to pay Rs.8,86,454 along with 2% coercive recovery charge, failing which, the recovery proceedings under 2 CM(M) No. 121/2025 Along with clubbed matters Sections 63 and 64 of the Land Revenue Act (Samvat 1996) would be initiated. 3. The chief ground on which the petitioner-school challenges the orders impugned is that the Act of 1972 does not apply to it because petitioner-school is a Charitable Educational Trust duly registered under Indian Trust Act. The submission of the learned counsel for the petitioner is that since the school is imparting education and is a Charitable Educational Trust, therefore, the provisions of Act of 1972 would not apply to it. Thus, the order impugned being bad and is required to be set-aside. He in support of his contention has placed reliance on the judgement passed by this Court in OWP No. 1064/2001 and OWP No. 60/2003 titled as “J&K Dharamarth Trust Council vs. State and Ors.” decided on 24.05.2004. Learned counsel for the petitioner while relying on para 5 of the said judgement has submitted that the case of petitioner in petitions in hand is squarely covered by the said judgement, therefore, the Act of 1972 would not be applicable. In view of reliance made by learned counsel for petitioner to above referred to judgement, it would be thus appropriate to read Paragraph 5 hereunder:- “5. From the above definitions it is apparent that trust does not fall within the meaning of commercial establishment or establishment as indicated in Sections 2(4) and 2(8). In addition to this, Government has power to declare any establishments an establishment for the purposes of this Act by issuing a notification. Admittedly, no such notification has been issued declaring the trust as an establishment for the purpose of Shops and Establishment Act 1966. Therefore, even if contention of the respondents is accepted, trust does not fall within the definition of establishment as defined under the Payment of Gratuity Act 1972, as also under the Shops and Establishment Act 1966. Expression employee used in Shops and Establishment Act 1966 is not for purpose of payment of gratuity. Some expression may have different meaning under the different statutes. Meaning prescribed under one Act cannot be carried into other unless 3 CM(M) No. 121/2025 Along with clubbed matters legislative intend is clear in this regard. Since expression employee and employer have been specifically defined under the provisions of Payment of Gratuity Act 1972, same cannot be borrowed from the other statute including Shops and Establishment Act. From the reading of the provisions referred to above, it is clear that trust does not fall within the definition of establishment or employer. Contention of the respondents that alternate efficacious remedy is available also cannot be accepted for the reasons that writ petition was entertained in the year 2001 and it is too late to dislodge the petitioner on the ground of availability of alternate remedy. Apart from this, it is settled proposition of law that where impugned order is without jurisdiction, alternate efficacious remedy of writ jurisdiction under Article 226 of the Constitution of India read with Section 103 of Constitution of State of Jammu and Kashmir is no bar. In the present case orders impugned are clearly without jurisdiction and therefore, the remedy of invoking writ jurisdiction is available to the petitioner. For what has been stated above, these petitions are allowed. Impugned orders dt. 27-9-2001 and 19-8-2002 are hereby quashed.” 4. Learned counsel for petitioner has also placed reliance on the judgement passed by the Bombay High Court in WP No. 1469/1990 titled as “Shri Gurudeo Ayurved Mahavidyalaya and Ors. vs. Madhav Narayan Mahakode and Ors”, decided on 21.01.1994. 5. On the other hand, learned counsel for the respondents submits that the Act of 1972 is and would be applicable to the present cases. He submits that in terms of Section 1(3)(c), the petitioner-school is amenable to the jurisdiction of the Authority under the Act of 1972 as the same has been made applicable to it in terms of the Central Government Notification issued vide S.O. 2218 as also the Notification dated 03.04.1997. He submits that when the judgement of 2004 was passed, it appears that these notifications were not brought to the notice of the Court and it is because of this fact, the Court without taking note of the said notifications passed the judgement. Thus, the judgments supra would not be applicable to the present cases because it is specifically provided by the Notifications referred 4 CM(M) No. 121/2025 Along with clubbed matters to above that the petitioner-school being a Trust would be governed by the Act of 1972. 6. Heard learned counsel for the parties and perused the material on record. 7. The Act of 1972 (39 of 1972) has been enacted to provide for scheme for payment of gratuity to employees engaged in factories, mines, oil fields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith or incidental thereto. It means that the Act has two important objectives, namely, (1) to provide for a scheme for payment of gratuity and (2) for matters connected with or incidental to such scheme. The Act would not cover any institution or organization that is not covered by the above preamble. However, the vigour of the preamble is controlled by the provisions contained in Section 1(3) of the Act, which prescribes a condition that a shop or establishment or class of establishments, must have employed or employing ten or more persons on any day of the preceding 12 months. 8. Section 1(3) provides applicability of the Gratuity Act, 1972, which reads as under:- “It shall apply to:- (a) Every factory, mine, oil-field, plantation, port and railway company; (b) 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, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) Such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.” 5 CM(M) No. 121/2025 Along with clubbed matters 9. Clause 3 of Section 1(3) elucidates that the Central Government may by the notifications specify the other establishments or the class of establishment in which ten or more employees are employed or were employed. For the purpose of applicability of the Act of 1972 in exercise of powers under Section 1(3), notification vide S.O. 2218 as also the notification dated 03.04.1997 have been issued. 10. Insofar as application of the Act of 1972 to the Trusts and/or Societies are concerned, S. O. 2218 provides that in exercise of the powers conferred by clause (c) of Sub section (3) of Section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government has specified the Trusts or Societies registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law with respect to societies for the time being in force in any State, in which ten or more persons are employed or were employed for wages on any day of the preceding 12 months as a class of establishments to which the said Act shall apply with effect from the date of publication of the notification in the Official Gazette.The said notification has been published in Gazette of India, Part II, dated 06.09.1997. It is thus palpably evident that the Act has been made applicable with effect from 06.09.1997. 11. Regarding the application of the Act to the Educational institutions, the notification dated 03.04.1997 provides that in exercise of the powers conferred by clause (c) of sub-section (3) of Section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government has specified the educational institutions in which ten or more persons are employed or were employed on any day preceding 12 months as a 6 CM(M) No. 121/2025 Along with clubbed matters class of establishments to which the said Act shall apply with effect from the date of publication of the notification. 12. As regards interpretation of the legislation, the Courts have consistently held that the provisions of an Act have to be construed liberally to benefit as many persons as possible. In construing a social welfare legislation, the court should adopt a beneficent rule of construction and if a Section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act and is more beneficial to the persons in whose interest the Act has been passed. It should be noted that in the background of the Welfare State, the Act of 1972 has been enacted to do social justice and it should be construed liberally to extend the benefit granted by it to as many persons as possible. The Act of 1972 is intended to give benefit to the employees working in establishments. Thus, the provisions of the Act of 1972 are required to be construed liberally. It should be so construed that the beneficial intention of the legislature is not frustrated by a strict or narrow interpretation and the benefit of the Act reaches the maximum possible persons. 13. As is apparent from the reading of aforesaid Notifications, the Act of 1972 has been made applicable to the Trusts and Societies as well as to the Educational Institutions, provided that ten or more persons are employed or were employed on any day preceding 12 months. No difference has been made between the societies or between the educational trusts. Irrespective of the nature of trusts, it would be applicable to all the Trusts as well as Societies. Had the charitable trusts been exempted from the application of Act of 1972, then there 7 CM(M) No. 121/2025 Along with clubbed matters would have been a specific mention regarding the same. Unconditional Act of 1972 would be applicable to all the Trusts and Societies provided it fulfills the conditions as specified in Section 1(3) of the Act of 1972. 14. Learned counsel for the petitioner has submitted that in view of judgement supra, it is to be taken that Act of 1972 would be applicable to the Trusts other than the Charitable Trusts. I am afraid to accept this argument because it cannot be gathered from the notifications issued by Central Government in exercise of the powers under Section 1(3)(c) that charitable trusts were exempted. Anything read which is not mentioned in the provisions would amount to reading something which is not provided in the Act of 1972 and would be violation of the same. The submission of the counsel for the petitioner qua the law and judgements referred to above does not lend any support to the case of petitioner. The judgement of 2004 relied upon by the counsel for petitioner would not be applicable in the present cases as the Court has not taken note of the two notifications referred to above, which specifically envisage that the Act of 1972 has been made applicable to all the trusts as well as all the educational institutions while exercising powers under Section 1(3)(c). 15. For the foregoing reasons, I do not find any merit in all these petitions and the same are, accordingly, dismissed. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 16.05.2025 Manzoor Manzoor Ul Hassan Dar I attest to the accuracy and authenticity of this document Srinagar 01.07.2025 09:52