1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER GANDHI SHIKSHAN SAMITI VS. STATE OF RAJASTHAN & ORS. (S.B. CIVIL WRIT PETITION NO.3317/95) Dated : 9.4.08. HON'BLE MR. JUSTICE SANGEET LODHA Mr. Vineet Dave for Mr. M.S. Singhvi, for the petitioner. Mr. Vineet Sanadya for Mr. Manish Shishodia, for the respondents. 1. This writ petition is directed against order dated 17.8.95 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (in short 'the Act of 1972'), whereby an appeal preferred by the petitioner against an order dated 21.10.92 passed by the Controlling Authority under the Act of 1972, has been dismissed and the order passed by the said authority directing the petitioner to pay an amount of Rs.48,369/- against the gratuity plus interest to the respondent no.4 herein, has been affirmed. 2. Briefly stated, the facts of the case are that the 2 petitioner a society registered under the Rajasthan Societies Act, 1958 (in short 'the Act of 1958') is running various educational institutions including Gandhi Senior Higher Secondary School at Gulabpura. The State Government provides grant in aid to the petitioner institution to the extent of 90% of the amount of salary and allowances paid to the employees, employed in Gandhi Senior Higher Secondary School, Gulabpra. The respondent no.4 was employed as Teacher in the said school. As per the orders of the State Government, the teaching and non teaching staff employed with the petitioner institution is entitled to get pay and allowances at par with those which are admissible to the employees in the corresponding grades in the government school. However, the teaching and non teaching staff of the petitioner is not entitled to any pensionary benefit of retirement but are entitled to get their provident fund dues. According to the petitioner, no provision for payment of gratuity has been made in respect of the staff employed in the petitioner 3 institution. 3. The respondent no.4 retired from service of the petitioner institution on 28.2.90 on attaining the age of superannuation. He filed an application before the Controlling Authority under the Act of 1972, the respondent no.3 herein, claiming payment of gratuity. It was contended on behalf of the petitioner before the said authority that provision of Act of 1972 are not applicable to the employees of the petitioner institution. However, the respondent no.3 held that the respondent no.4 was entitled to get gratuity and accordingly an order directing the petitioner to make payment of gratuity with interest was passed as aforesaid. 4. Aggrieved by the aforesaid order dated 21.10.92, passed by the respondent no.3, the petitioner preferred an appeal before the Appellate Authority under the Act of 1972, which has been rejected vide order impugned dated 17.8.95, even after holding that the Act of 1972 is not applicable to the employees of petitioner institution. The Appellate Authority held that since the employees of the petitioner 4 institution are getting pay and allowances and provident funds benefits, therefore, automatically benefits of gratuity also becomes applicable. 5. It is contended by the learned counsel for the petitioner that once the Appellate Authority has recorded a finding that the Act of 1972,was not applicable to the employees of the petitioner institution, then, it had no jurisdiction to uphold the order passed by the respondent no.3 inasmuch as the same was passed under the provisions of Act of 1972 only. The learned counsel submitted that the Appellate Authority has committed serious error in holding that since pay, allowances and provident funds benefits are provided to the employees of the petitioner, therefore, the benefit of gratuity becomes available incidentally. The learned counsel submitted that number of benefits are not available to the employees of aided institution which are admissible to the government institutions namely, leave encashment, reimbursement of medical, selection grade, pension etc., therefore, it is absolutely unreasonable to 5 suggest that since the employees of the petitioner institution are entitled to same pay and allowances as those are admissible to the employees of the government institutions, therefore, they will be entitled for benefit of gratuity as well. The learned counsel submitted that the respondent no.4 is neither an employee within the meaning of Section 2(e) of the Act of 1972, nor the petitioner is an establishment, factory, mine, oil field, plantation, railway company or shop covered by the definition of “employer” set out in Section 2 (f) of the Act of 1972, therefore, the provisions of Act of 1972, cannot be made applicable to the petitioner institution. The learned counsel submitted that neither the respondent no. 3 nor the respondent no. 4 have considered the arguments advanced on behalf of the petitioner, thus, the findings recorded are totally laconic and perverse. The learned counsel submitted that the question that the teachers are not covered by the definition set out in Section 2(e) of the Act of 1972 is no more res integra inamuch as, the Hon'ble Supreme Court in the matter of “Ahmedabad Primary Teachers 6 Association vs. Administrative Officer & Ors.”,(2004) 1 SCC,755, has categorically laid down that even on a plain construction of the words and expression used in the definition clause 2(e) of the Act, 'teachers' who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act of 1972. That apart, the learned counsel submitted that the respondent had retired from service on 28.2.90 on attaining age of superannuation and till then, the Rajasthan Non Governmental Education Act, 1989( in short “the Act of 1989” hereinafter) and Rajasthan Non Government Educational Institution ( Recognition, Grant-in-aid and Service Conditions Etc.) Rules, 1993 ( in short “the Rules of 1993”hereinafter) had not come into force, therefore, even otherwise, he cannot claim benefit of gratuity by virtue of Rule 82 of the Rules of 1993 whereby the benefit of gratuity as admissible under the Act of 1972 has been extended to the employees of the aided educational institutions. In this regard, the learned counsel has relied upon a Bench decision 7 of this Court in the matter of “Gouri Shanker Ojha vs. Bhopalwala Arya Hihger Secondary School & Ors.” (D.B.Special Appeal (writ) No.46/07, decided vide order dated 19.1.07) and yet another decision dated 22.12.06 rendered by this Court in the matter of “Prof. Jeewan Lal Mathur vs. State of Rajasthan & Ors.” (S.B.C.Writ Petition No.1230/03). 6. Per contra, the learned counsel appearing on behalf of the respondent contended that the teachers may not be covered by definition of employee within the meaning of Section 2(e) of the Act of 1972 but the liability of the petitioner institution to pay the gratuity under the Act of 1972 is there, in view of the provisions of Rule 82 of the Rules of 1993, whereby, the benefit of gratuity has been extended to all the employees of aided institution. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Rajasthan Welfare Society vs. State of Rajasthan”, (2005 SCC (L&S), 524). 7. I have considered the rival submissions and perused the 8 record. 8. The learned counsels appearing on behalf of the parties are ad idem that the questions involved in the matter stand settled by the various decisions of the Hon'ble Supreme Court and this Court, therefore, it will be appropriate to appreciate the position of law emerging from the decisions cited by the learned counsels appearing on behalf of the parties. 9. In the matter of Ahmedabad Private Teachers Association (supra), the Hon'ble Supreme Court after critical examination of the definition of “employee” contained in Section 2(e) of the Act of 1972 , arrived at the conclusion as under:- “24. The contention advanced that teachers should be treated as included in the expression “unskilled” or “skilled” cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a “skilled employee”. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words “semi-skilled” and “unskilled” are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the 9 question as to whether “skilled”, “semi-skilled” and “unskilled” qualify the words “manual”, “supervisory”, “technical” or “clerical” or the above words qualify the word “work”. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are “skilled”, “semi-skilled”, “unskilled”,“manual”, “supervisory”, “technical” or “clerical” employees. They are also not employed in “management” or “administrative” capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in “managerial” or “administrative” capacity. The teachers are clearly not intended to be covered by the definition of “employee”.” (emphasis added) Therefore, the question that the teachers are not covered by the definition of “employee” contained in Section 2(e) of the Act of 1972 is no more res integra. 10. The next question which comes for consideration is whether the teachers who are though, not covered by the definition of “employee” within the meaning of Section 2(e) of the Act of 1972 yet they are entitled for benefit of gratuity by virtue of the provisions of Rule 82 of the Rules of 1993, whereby, the benefit of gratuity in terms of the Act of 1972 10 has been extended to the employees of the aided institution which obviously covers teachers as well. As a matter of fact, in view of the decision of the Hon'ble Supreme Court in the matter of Rajasthan Welfare Society (supra), this question also stands settled wherein, the Hon'ble Supreme Court after due consideration of the relevant provisions of the Act of 1989 , the Rules of 1993 and the Act of 1972 has laid down that the definition of “employee” under the Act of 1989 includes teachers and every other employee working in a recognised institution, therefore, it cannot be accepted that the teachers of non government aided institution are not entitled to gratuity in terms of Rule 82 of the Rules of 1993 made by the State Government in exercise of its rule making power. Thus, the entitlement of the teachers employed in the aided educational institutions receiving the grant in aid under the Rules of 1993, to gratuity on account of incorporation of the provisions by reference in the Rules of 1993, also cannot be questioned. 11. Lastly, it is contended by the learned counsel for the 11 petitioner that the respondent had already retired from service on 28.2.90 on attaining the age of superannuation whereas, the Act of 1989 and the Rules of 1993 have come into force w.e.f. 1.1.93, therefore, he is not entitled to claim the benefit . It is to be noticed that the Act of 1989 has come into force w.e.f. 1.1.93 by virtue of notification dated 15.12.92 issued by the State Government in exercise of the power conferred by sub-section (3) of Section 1 of the Act of 1989. Similarly, the Rules of 1993 have come into force w.e.f. 1.1.93 by notification dated 18.2.92 published by the State Government in the official gazettee in terms of clause (c ) of Rule 1 of the Rules of 1993.The Division Bench of this Court in the matter of Gauri Shanker Ojha(supra), has categorically held that the Act of 1989 is not retrospective in operation, therefore, the person who was not on the scene when the Act of 1989 and the Rules made thereunder came into force , cannot derive benefit of gratuity on account of the provisions for payment of gratuity incorporated under the Act of 1989 by reference. It was observed that on the date the person is 12 retired, his right to retiral benefits stands determined in accordance with law in force on that date and since on that date of retirement, no right to claim gratuity under any law accrued, he did not become entitled to claim gratuity. Thus, the respondent who had retired from service on 28.2.92 is not entitled to claim benefit of gratuity in terms of Rule 82 of the Rules of 1993. 12. In the result, the writ petition succeeds, it is hereby allowed. Impugned orders dated 21.10.92 passed by the Controlling Authority under the Payment of Gratuity Act and order dated 17.8.95 passed by the Appellate Authority are quashed and set aside. No order as to costs. (SANGEET LODHA),J. Aditya/-