Civil Appeal No4 of 1958
Appeal by special leave from the decision dated September 19 1956 of the Labour Appellate Tribunal of India Calcutta in Appeal No Cal
23556
B Sen section N Mukherjee and B N Ghose for the appellants
Sukumar Ghose for the respondents
46 1959
October 16
The Judgment of the Court was delivered by WANCHOO J
This appeal is directed against the decision of the Labour Appellate Tribunal of India in an industrial matter
The appellant is a partnership concern carrying on business in the manufacture of pharmaceutical products
There was a gratuity scheme in force in the appellant concern for a long time
This scheme was modified by an award of the industrial tribunal dated August 18 1952 hereinafter called the Award and since then the modified scheme has been in force
The financial condition of the appellant deteriorated and consequently it was compelled to retrench a number of workmen
It therefore applied to the Appellate Tribunal under section 22 of the Industrial Disputes Appellate Tribunal Act No XLVIII of 1950 for permission to retrench 89 workmen
The Appellate Tribunal granted permission for retrenchment of 75 workmen only
Consequently after obtaining such permission the appellant retrenched the workmen and paid them compensation as provided in section 25F of the hereinafter called the Act
Thereupon a dispute was raised by the retrenched workmen through the union in existence in the appellant concern for gratuity on retrenchment under the award
This dispute was referred to the Second Industrial Tribunal West Bengal on March 23 1956 for adjudication in the following terms  Whether the seventy five retrenched employees as per attached list are entitled to gratuity in addition to retrenchment benefits  There was another matter included in the reference but we are not concerned with that in the present appeal
The Industrial Tribunal came to the conclusion that the retrenched workmen were only entitled to relief as provided under section 25F of the Act and were not entitled to any gratuity under the Award over and above the compensation payable to them under the Act
Then followed an appeal by the workmen to the Appellate Tribunal which was allowed
The Appellate Tribunal held that the workmen were entitled to gratuity 47 under the Award as gratuity benefit therein was not a retrenchment benefit
The appellant then applied for special leave to appeal which was granted and that is how the matter has come up before us
The general question has been considered by this Court in The Indian Hume Pipe Company Limited vs Its Workmen 1 judgment which is being delivered today
As the penultimate paragraph in that judgment shows special considerations may arise on the terms of agreements or awards in particular cases and it is this aspect which falls to be considered in the present appeal
The sole question therefore for determination in this appeal is whether the retrenched workmen are entitled under the Award to gratuity provided therein in addition to retrenchment benefit under section 25F of the Act
We may therefore reproduce here the relevant part of the Award which is in these terms  The following gratuity scheme shalt be for cases of retrenchment or termination of service by the company for any reason other than misconduct or for cases of resignation with the consent of the management
The gratuity will be paid up to a maximum of 15 months  basic pay at the following rates
The period of service to qualify for the gratuity shall be one year
Consistently with the modification about the maximum qualifying service the basic pay for the purpose of gratuity shall be the average of the last 12 months  basic pay drawn by the workmen concerned
 Then followed the rates and it was also provided that no gratuity would be payable before the completion of one year of service and that persons discharged for misconduct would not be entitled to any gratuity
Finally it was provided that in case of death of an employee his widow or children or other dependents would be granted gratuity on the above basis
It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions namely 1 where there is retrenchment ii where there is termination of service for any 1 48 reason other than misconduct and iii where there is resignation with the consent of the management
Though the word  gratuity  has been used to cover all these three cases it is clear that cases of retrench ment as such are also covered by the Award and payment to workmen retrenched has been called gratuity
The name given to the payment is however not material and it is the nature of the payment that has to be looked into
Now under this Award it is obvious that this payment on retrenchment though called gratuity is really nothing more nor less than compensation on account of retrenchment
Further it is obvious from the terms of the Award that a retrenched workman could claim gratuity under the Award only oil account of retrenchment and could not claim it under the other two conditions therein
In other words on a fair and reasonable construction of the Award what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly so called
This brings us to the provisions of the Act with respect to retrenchment
 Retrenchment  is defined under section 2 oo and means  the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action but does not include a voluntary retirement of the workman or b retirement of the workman on reaching the age of superan nuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf or c termination of the service of a workman on the ground of continued illhealth 
If this definition is compared with the provisions of the Award it will be found that the Award provides payment not only for retrenchment as such but also for other termination of service which is specifically excepted from the definition of  retrenchment 
Clauses a and b of section 2 oo are provided in the Award by the words cases of resignation with the consent of the management 
Similarly clause c of section 2 oo is provided for by the words  termination of service by the company for any reason other 49 than misconduct 
It is therefore obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement
It is thus a composite scheme and merely because the payment is called gratuity even where it is payable on account of retrenchment it cannot be anything other than compensation so far as the part of the Award relating to retrenchment is concerned
Chapter VA containing sections 25F and 25J with which we are concerned was added in the Act by Act 43 of 1953 with effect from October 24 1953
The reason for this addition was that though there were schemes in force in many concerns for payment to workmen on retrenchment there were many other concerns where no such schemes were in force and the workmen got nothing on retrenchment unless there was an award by a Tribunal
Besides where schemes were in force or awards were made rates of payment on retrenchment varied
The legislature therefore thought it fit by enacting Chapter VA to provide by section 25F a uniform minimum payment to workmen on retrenchment
This payment was called compensation
Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched without payment of compensation which shall be equivalent to fifteen days  average pay for every completed year of service or any part thereof in excess of six months
Then comes section 25J sub section
1 whereof provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders
There is however a proviso to sub section
1 which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer
This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by section 25F the workman will be entitled to get that and the provisions of section 25F will not derogate 7 50 from that right of the workman ie will not reduce the compensation provided under the award or contract to the level provided under section 25F
It is obvious that it was not the intention of the legislature that a work man on retrenchment should get compensation twiceie once under the Act and once under the scheme in force providing for retrenchment compensation by whatever name the payment might have been called
We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under section 25F of the Act
The Appellate Tribunal seems to have been carried away by the word  gratuity  used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment
We are of opinion that this is not correct
Whether it is called gratuity  or compensation  it is in substance a payment to the workman on account of retrenchment and if a scheme like the present specifically provides payment for retrenchment as defined in section 200 we see no justification for compelling that payment twice over once under section 25F and again under the scheme in force in the concern
The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under section 25F
We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit
We have already analysed the Award above and shown that it deals with three contingencies and one of them is payment due on retrenchment
On the terms therefore of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under section 25F of the Act and the workmen are only entitled to one or the other whichever is more advantageous to them in view of section 25J
In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exacty the same as compensation 51 provided under section 25F and as the provisions of section 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under section 25F only and not both under that section and under the Award
The appellant has already paid the compensation provided under section 25F the workmen therefore are not entitled to anything more under the Award
We therefore allow the appeal set aside the decision of the Appellate Tribunal and restore that of the Industrial Tribunal in this matter
As this question has come up to this Court for the first time we order the parties to bear their own costs
Appeal allowed


Summary:
The question for determination in this appeal arising out of a suit filed by the appellant under section 53 of the Charitable and Religious Trusts Act 1920 was whether the ancient temple of Shri Balaji Venkatesh at Nasik and its Sansthan constituted a charitable and religious trust within the meaning of the Act
The deity was Swayambhu and revealed itself in a dream to one Ganapati Maharaj who at its behest brought the deity from the river Tambraparni and installed it in his house
Ganapati s son Timmaya who removed the deity to Nasik took the idol to the courts of Rulers and acquired the properties in suit consisting of lands and cash
Timmaya s eldest son obtained an extensive plot of land as a gift from the Peshwa and thereon built a vast temple with a Sabha Mandap which could accommodate no less than 600 persons and installed the deity in the first floor with a staircase leading straight to it
The Hindu public has been worshipping at the temple for more than 200 years and there was no evidence to show that they had ever been excluded from it and any gift had ever been refused
The ceremonies performed in the temple were appropriate to a public deity
It was admitted by the sons of Timmaya in Tahanama executed by them in 1774 that the Inam villages were granted for the worship of the deity and the temple belonged to the Sansthan none of them having any share in it
In the Tharav Yadi of 1800 the maintenance allowance provided by the said Tahanama for the different branches of the family was described as Vetan 
The Inam Commissioner functioning under Act 11 of 1852 recorded the Inam villages as permanently held Debasthan inams at the instance of the then Sthanic and on the basis of original sanads filed by him reversing the decision of the Assistant Inam Commissioner who had recorded them as personal inams
Those sanads were not filed in the suit
In 1931 the appellant published a history of the Sansthan wherein it was clearly stated that the Sansthan was not a private or family property but was the property of the deity the members of the family being merely the managers
The deity was not made a party to the suit although representatives of the Hindu public were joined as 98 774 parties under section 1 r 8 of the Code of Civil Procedure
The High Court while it concurred with the trial judge in holding that the deity was a public deity and that its Sansthan constituted a public trust was however inclined to hold that some of the properties might be personal properties of the appellant but refused to grant any such declaration on the ground that no effective decree could be passed against the deity in its absence It was contended on behalf of the appellant in this court that the courts below had misconstrued the document and were wrong in drawing the inferences they did and that the burden of proof had been wrongly placed on the appellant to prove by positive evidence that the deity was a family deity and the properties his private properties
Held that the courts below were right in coming to the conclusion they reached and the appeal must fail
A mistaken inference drawn from documents is no less a finding of fact if there is no misconstruction of the documents and no misconstruction of documents having been proved the appellant could not succeed
An admission is the best evidence that an opposing party can rely upon and although it is not conclusive is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous
The expression  burden of proof  means one of two things 1 that a party has to prove an allegation before it is entitled to a judgment in its favour or 2 that the one or the other of the two contending parties has to introduce evidence on a contested issue
The question of onus is material only where the party on which it is placed would eventually lose if it failed to discharge the same
Where issues are however joined evidence is led and such evidence can be weighed in order to determine the issues the question of burden becomes academic
In the present case if the onus lay on any party it was clearly on the appellant to prove by cogent evidence that the admissions made by his predecessors in title and by him were either erroneous or unavailable and this he had failed to do
The earlier sanads admittedly in his possession not having been produced and those produced not being in any way inconsistent with the said admissions or the revenue records no question of any misconstruction of documents could arise
Babu Bhagwan Din vs Gir Nar Saroon 1939 LR 67 IA 1 held inapplicable
Srinivasa Chariar vs Evalappa Mudaliar 1922 LR 49 IA 237 applied
The entries made in the Inam Register prepared under Act 11 of 1852 were entitled to great weight and although they could not displace actual and authentic evidence in an individual case it was well settled that in absence of such evidence they must prevail 775 Arunachalam Chetty vs Venkatachalapathi Guru Swamigal 1919 LR 46 IA 204 referred to
Held further that the vastness of the temple the mode of its construction the long user by the public as of right grant of land and cash by the Rulers taken along with other relevant factors were consistent only with the public nature of the endowment
Narayanan vs Hindu Religious Endowments Board AIR 1938 Mad 209 relied on
The absence of a dome or Kalas on the temple was not by itself a decisive factor as to its public character nor was consecration imperative of a deity that was Swayambhu
Nor is the temporary movement of the idol from place to place inconsistent with its public character
Ram Soondur Thakoor vs Taruk Chunder Turkoruttum 1873 19 Weekly Reporter 28 Hari Raghunath vs Apantii Bhikajii Bom
466 Prematha Nath Mullick vs Pradyumna Kumar Mullick 1925 LR 52 IA 245 and Venkatachala vs Sambasiva AIR 1927 Mad 465 52 MLJ 288 considered
The defect in the frame of such a suit resulting from the omission of the deity as a party to it cannot be remedied by the subsequent addition of the representatives of the Hindu Public as parties to it and no effective decree could be passed against the deity in such a suit