1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.1620/99 Keshar Dev vs. Rajasthan Non-Government Educational Institutions Tribunal & Anr. 2. S.B. CIVIL WRIT PETITION NO.912/2000 Birla Higher Secondary School, Pilani vs. Keshar Dev & Anr. Date of Order : : 16th December, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri D.P. Sharma for the petitioner. Shri H.S. Khandelwal for the respondent. ****** REPORTABLE These two writ petitions seek to challenge the judgement passed by the Rajasthan Non-Government Educational Institution Tribunal dated 19.12.1998. While writ petition no.1620/99 has been filed by the petitioner Keshar Dev who retired from the services of the respondent-educational institution as Teacher against denial of gratuity, the said institution has also challenged that part of the judgement by which he (the employee) has been awarded interest for delay in payment of amount of retiral dues. Shri D.P. Sharma, learned counsel for the petitioner-employee has argued that the respondent Tribunal erred in law in not awarding the payment of gratuity to the 2 petitioner. It was argued that the provisions of Rule 82 of the Rajasthan Non government Educational Rules, 1993 (for short Rules of 1993) which inter alia provides that the employees of the aided educational institutions shall be entitled to gratuity as admissible under Payment of Gratuity Act, 1972 as amended from time to time, such Rules would be applicable to the employees of the respondent institute because the trust which is running the said institute is also running a large number of other educational institutes which are receiving grant-in-aid from the Government. Referring to the definition of the aided institutions in Rule 2(c) of the Rules of 1993, learned counsel argued that explanation to the aforesaid Rule has provided that if any part of an institution, receives maintenance grant, the entire institution shall be treated as aided institution irrespective of whether any other part of the institution is or is not covered by the aid. Learned counsel argued that Section 2(h) of the Rajasthan Non Government Educational Institutions Act, 3 1989 (for short-the Act of 1989) has provided the definition of “Educational Society” which means any trust, person or body of persons permitted to establish or maintain a recognised non-Government educational institution. Birla Education Trust, which has set up more number of school than just one, irrespective of the fact whether one of them is not receiving grant-in-aid, would be deemed to be aided institution if grant-in-aid, is being received by one of such schools. Learned counsel referring to the Central Board of Secondary Education Bye-laws argued that the said bye-laws in its clause 10 (4) provides that a school affiliated to CBSE should have Contributory Provident Fund, Gratuity and Pension as per the Government rules of the State / Centre. Learned counsel argued that the Supreme Court in T.M.A. Pal Foundation vs. State of Karnataka-2003 AIR SC 355 has held that non-aided educational institutions have to monetarily abide by such bye-laws. Learned counsel also relied on division bench judgement of this Court in Agarwal Primary School, Ajmer vs. State & Ors.-2006 4 (6) RDD 3484 (Raj.) and single bench judgement of this Court in L.Rs of Rashida Gajdar vs. State & Ors.-2007 (5) WLC (Raj.) 205. Learned counsel argued that the Tribunal erred in law in not awarding house rent allowance to the petitioner without appreciating the fact that the petitioner was not allotted the Quarter. It was further argued that the Tribunal erred in law in payment of interest only @ 9% for the delayed payment of retiral dues whereas in other identical cases, the Tribunal has awarded 13% interest. Shri H.S. Khandelwal, learned counsel appearing for the employer; namely Birla Higher Secondary School, Pilani opposed the writ petition filed by the employee and argued that the argument with reference to CBSE bye-laws which are being raised by the employee before this Court, was never relied before the Tribunal. It was argued that the Tribunal is creation of the Act of 1989 which is competent to grant only such relief to the employees of the aided institutions as are admissible under the Act and the Rules framed thereunder. Rule 82 of the 5 Rules of 1993 provides for payment of gratuity to the employees of the aided educational institutions and this is to be decided as a question of fact whether the Birla Education Institution is an aided institution, no part of it is receiving aided in the form of maintenance grant from the State Government. Just because the other school run by Birla Education Trust is receiving grant in aid, the definition of Rule 2(c) cannot be interpreted in such a manner as to also include Birla Higher Secondary School. Learned counsel argued that the Labour Court was perfectly justified in not awarding house rent allowance to the employee. Petitioner did not prove before the Tribunal as to on what date, he demanded the accommodation and it was provided to him, nor has it proved the fact that when, where and at what rate, did he take the house on rent. He also did not prove as to when did he apply for payment of house rent allowance and on which ground it was rejected by the employer. The Tribunal in those facts was totally justified in not granting house rent allowance to the 6 petitioner. Learned counsel also submitted that the Tribunal was wholly unjustified in awarding interest for the delay in making payment of the retiral dues from 18.9.1994 to 12.10.1996. It was argued that cheque of Rs.3,43,087/- towards payment of provident fund was received by the employee but he did not obtain the payment thereof from the bank, therefore, the delay, if at all any, was on his part for non realisation of the cheque in time. Payment of pension has also been made to him by cheques dated 20.5.97, 30.7.97, 29.8.97 and 26.9.97 which were sent by registered post and thereafter sch payment was made on regular basis. There was no case for grant of interest. I have given my anxious consideration to the rival submissions and perused the material on record. Rule 82 of the Rules of 1993 clearly provides that employee of the aided educational institution shall be entitled to gratuity as admissible under the Payment of Gratuity Act, 1972 as amended from time to time. What would be meant by aided educational institution, shall have to be 7 decided with reference to its definition either in the Act or the Rules. Section 2(b) of the Act provides that aided institution means recognised institute which is receiving aid maintenance from the State Government. The definition of the aided institution given in Rule 2(c) is also exactly identically worded but there is added explanation thereto. The explanation provides that if any part of an institution, receives maintenance grant, the entire institution shall be treated as aided institution irrespective of whether any other part of the institution is or is not covered by the aid. What is contended by the petitioner in the present case is that the Birla Education Trust is running several institutions and some of which are receiving grant in aid, therefore, the requirement of receipt of maintenance grant by part of the institution as referred to in Rule 2(c), is satisfied thereby. I am afraid such an argument cannot be upheld contrary to the intention of the rule making authority. The explanation to Rule 2(c) has to be read with the parent Rule which defines the aided 8 institution. The word `aided institution' as mentioned in the explanation therefore has to be necessarily read and interpreted with reference to the aided institution and not the Trust or the society. Reference by the learned counsel to the definition of the Educational Society under Section 2(h) is wholly misconceived. The Educational Society or the Educational Agency in section 2(h) has been defined to mean any trust, person or body of persons permitted to establish or maintain a recognised non-Government educational institutions. But the educational society or trust running educational institution itself, cannot be projected to the level of an aided institution. It is the educational institution run by educational society or the trust, which is to be treated as aided institution. Reliance on the judgement of this Court in Agarwal Primary School, Ajmer, supra is wholly misconceived because what was held in that case will have to be understood in the context of the contents of the case and the fact situation obtaining therein. In that case, there it was a school 9 upto 12th standard which was being run by the society and the primary section of that very school was receiving the grant in aid. Division Bench did not interpret either Rule 82 of the Rules or its explanation. In LRs. of Rashida Gajdar, supra also Saint Patricks Vidhya Bhavan Senior Higher Secondary School was recognised for both the secondary section and also for the primary section and pre-primary section. It was receiving grant in aid against the secondary or primary school but no grant was being received in respect of pre-primary section. It was in that context that the Court held that the entire school shall be treated as one single unit and with interpertating explanation to Rule 2(c), it was held that the entire institution shall be liable to be treated as an aided institution. The facts in the present case are quite different where no part of the Birla Higher Secondary School, Pilani, namely-respondent no.2 has been shown to be receiving grant in aid. The Tribunal in taking that view has drawn support from the division bench judgement of this Court in M.G.D. Girls School & Anr. vs. 10 Education Tribunal & Smt. Indubala Srivastava-1995 (1) WLC (Raj.) 99. The argument raised with reference to the CBSE Bye-laws especially its clause 10 (4), cannot be allowed to be raised for the first time before this Court to adjudge the validity of the order passed by the Tribunal. The validity of any order of the Tribunal cannot be questioned on the ground which was not urged before it. In the present case, the Tribunal ever otherwise was required to decide the matter on the basis of provisions of Rules of 1993 and the Act of 1989 and not on the basis of CBSE Bye-laws which argument in any case was never agitated before it. The judgement of Supreme Court in T.M.A. Pal Foundation cannot be read out of context and thus cannot be relied on to hold that the Tribunal wrongly rejected the application of the petitioner. I do not find any perversity or illegality in that part of the order whereby it has declined to grant house rent allowance to the employee because the employee was not able to prove before the 11 Tribunal that he ever applied for allotment of the quarter and it was not allotted to him and that he ever took the house on rent and if so, at what rate. The argument that the interest should have been awarded @ 13% per annum and not just 9% per annum also can be accepted because the rate of 9% per annum was quite reasonable and justified. It cannot therefore be said to be illegal or inappropriate exercise of its discretion by the Tribunal in awarding the interest @ 9% per annum. At the same time, however, the employer also cannot be allowed to assail the award of interest because it has not been able to dispute the question that the delay in making payment of retiral dues was quite substantial and it was for the period from 18.9.1994 to 12.10.1996. In view of the above discussion, I do not find any merit in either of the writ petitions, which are both dismissed without any order as to costs. (MOHAMMAD RAFIQ), J. RS/