1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4484/02 Uttam Singh Karnawat vs. The Secretary, S.S. Jain Subodh Shiksha Samiti & Ors. Date of Order : : 26th November, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashok Gaur for the petitioner. Shri Vijai Singh for the respondent. ****** REPORTABLE This writ petition has been filed by the petitioner Uttam Singh Karnawat challenging the judgement dated 2.3.2002 passed by Rajasthan Non-Government Educational Institutions Tribunal, Jaipur with the prayer that the respondents be directed to release his amount of gratuity together with interest. Petitioner was appointed with the S.S. Jain Subodh Senior Secondary School, Jaipur of respondent no.1 on the post of Assistant Teacher on 14.7.1960. He was then promoted on the post of Assistant Headmaster in 1974 and later Principal in the same school with effect from 1.4.1980. Petitioner served upon the respondents notice of three months for resignation in 1988-89. During the pendency of the notice 2 period of three months' i.e. 1.7.1989 to 30.9.1989 he withdrew the same by his letter dated 25.7.1989. His request for withdrawal was however declined by the respondents. Petitioner then filed writ petition before this Court challenging the rejection of his request. His writ petition, being S.B. Civil Writ Petition No.1096/90, was allowed by the judgement of this Court dated 21.1.99 and the petitioner was reinstated in service on 1.4.1991 with continuity in service. Subsequently, the respondents by order dated 15.3.1994 terminated services of the petitioner by giving him six months salary. Petitioner filed appeal with Rajasthan Non- Government Educational Institutions Tribunal (for short- the Tribunal) challenging the said order. Appeal of the petitioner was allowed by the Tribunal vide its judgement dated 31.5.1994. Management filed writ petition against the aforesaid judgement of the Tribunal, which was allowed by the Single Bench of this Court vide order dated 29.9.1994 and judgement of the Tribunal was set aside. The petitioner challenged aforesaid judgement of the learned Single 3 Judge by filing special appeal before the division bench. During pendency of the aforesaid special appeal, a compromise was arrived at between the management of the respondent school and the petitioner and resultantly the appeal was withdrawn by the appellant in terms of the compromise on 19.3.1996. According to the terms of the compromise, the petitioner was to get the full salary for the period of six months from 16.3.1994 till 15.9.1994 and 70% of his total emoluments from 16.9.1994 till the date of his superannuation i.e. 31.10.1996. The petitioner was however paid a sum of Rs.15,000/- only towards gratuity in terms of the policy followed by respondent school with regard to similarly situated employees and it was agreed upon between the petitioner and the respondents that as and when government sanctions further payment towards gratuity for employee of the aided institutions in terms of the orders of the Supreme Court, the respondents shall make payment thereof to the petitioner within 15 days of the receipt of grant relating to gratuity from Government. The Supreme Court 4 in the case of Rajasthan Welfare Society vs. State of Rajasthan-2005(3) SCC 227 authoritatively pronounced that the gratuity does not form part of the approved expenditure and cannot therefore be a part of recurring grant. Government was therefore held to be not responsible for grant in aid towards payment of gratuity. The petitioner then submitted representations to the respondent Samiti that he should be paid the amount of gratuity as was payable to government employees. The respondent Samiti however did not make payment of the gratuity. Eventually the petitioner served upon the respondents a legal notice and thereafter filed an application before the Tribunal claiming payment of gratuity. This application was contested by the respondent Samiti. The Tribunal vide its order dated 2.3.02 rejected the application of the petitioner. Hence this writ petition. I have heard Shri Ashok Gaur, learned counsel for the petitioner and Shri Vijai Singh, learned counsel for the respondents. Shri Ashok Gaur, learned counsel for the petitioner has argued that the Tribunal has 5 misconstrued and misapplied terms of the compromise, especially clause (4) thereof, which was arrived at between the parties before this Court. It was contended that even though the petitioner had agreed to receive amount of Rs.15,000/- as was the policy then followed by the respondent Samiti in respect of the similarly situated employees, but he never waived his right to receive gratuity as per the law. The terms of the compromise was that as and when Government sanctions any further payment for gratuity in terms of the Supreme Court judgement passed in favour of the employees of grant in aid institutions, the respondent Samiti shall within 15 days of the receipt of the grant relating to gratuity from the government, remit the entire amount that may be payable in terms of the government grant to the appellant. It was contended that the respondents at the time of compromise paid to the petitioner a sum of Rs.15,000/- because only this much amount used to be paid to all retired employee by the respondents. Subsequently, however, following the judgement of Supreme Court 6 referred to above and number of other judgements on the subject by this Court, payment of gratuity was released to other employees who retried from the services of the respondents. Reference was made to the case of Shri Navratan Singh Bhandri who retired as Lecturer from the service of the respondent Samiti was paid a sum of Rs.2,06,495/- on 28.9.01. Similarly, a sum of Rs.1,23,162/- was paid as gratuity to one Smt. S.Bhagyam Sharma, Assistant Teacher on attaining the age of superannuation by the respondent Samiti on 4.5.2002. Reference was also made to the cases of Tarachand Chowkidyal, Hemchand Jamat, Mahaveer Prasad and Sitaram Sharma, who too retired on attaining the age of superannuation and were paid the amount of gratuity. Some of these persons according to Shri Ashok Gaur were paid the initial amount of Rs.15,000/- and after the judgement of Supreme Court, they were paid the differential amount. The case of the petitioner therefore cannot be dealt with differently inasmuch the action of the respondents in not making payment of gratuity to the petitioner at par with other 7 similarly situated persons, being wholly discriminatory, has occasioned not only failure of justice but also caused grave prejudice to the petitioner. Such an action is liable to be declared illegal, unconstitutional and discriminatory and therefore violative of Article 14 and 16 of the Constitution of India. Shri Ashok Gaur argued that the petitioner, who has rendered 34 years of service to the respondents, cannot be deprived of his right to receive gratuity by misconstruction of clause (4) of the compromise by which the petitioner never agreed to permanently forgo his right to receive gratuity. The learned Tribunal was not justified in rejecting the application. Shri Ashok Gaur also made reference to the judgement of division bench of this Court in Shri S.S. Jain Subodh Shiksha Samiti vs. State of Raj. & Ors., D.B. Civil Special Appeal No.614/04 decided on 28.2.2008 and argued that appeal of the respondent Samiti itself was dismissed by the division bench relying on the judgement of Supreme Court in Rajasthan Welfare Society, supra. This Court 8 held that non payment of gratuity to a retired employee by the respondent Samiti amounted to wrongful withholding of the legitimate dues of the employee and therefore dismissed the appeal of the respondent Samiti upholding judgement of the Tribunal. It is therefore prayed that the writ petition be allowed. Shri Vijai Singh, learned counsel representing the respondent Samiti opposed the writ petition and argued that in the compromise that was arrived at between the parties, the petitioner specifically agreed that as and when the Government sanctions any further payment towards gratuity, the respondent Samiti shall within 15 days of the receipt of the grant relating to gratuity from the government, remit the entire amount that may be payable in terms of the government grant to the appellant. It was contended that since the government had not sanctioned the grant in aid towards payment of gratuity, there was no question of making payment of gratuity by the respondent Samiti to the petitioner. The Tribunal was perfectly justified in 9 dismissing the application of the petitioner. In view of the compromise, especially what was agreed upon by the parties in clause (4) thereof, the petitioner should be taken to have waived, surrendered and forgone his right to receive gratuity except the amount of Rs.15,000/- which was paid. The judgment of the Tribunal does not suffer from any error apparent on the face of record so as to warrant interference by this Court. It was contended that reliance on the judgment of division bench of this Court in Shri S.S. Jain Subodh Shiksha Samiti, supra was wholly misconceived because in that case there was no such similar compromise between the respondent Samiti and the employee concerned. The writ petition is therefore liable to be dismissed. Shri Hemant Gupta, learned Additional Government Counsel also opposed the writ petition, though in a limited context, by arguing that in so far as the State Government is concerned, it cannot be at any rate held liable for making payment of grant towards the gratuity because gratuity does 10 not form part of the approved expenditure and no amount can be claimed as grant in aid towards payment of gratuity. This has been so held by Supreme Court in Rajasthan Welfare Society, supra. I have given my anxious consideration to the rival submissions and perused the impugned judgment as also other material forming part of the record. What is evident from the judgment of the Tribunal is that application of the petitioner was dismissed solely on the ground that he in the compromise that was entered into between the parties before this Court in his appeal before the division bench agreed to receive the payment of gratuity only if the same is sanctioned by the government in favour of the respondent Samiti in terms of the order of Supreme Court. The respondent Samiti would be responsible for making payment thereof to the petitioner within 15 days of receipt of the said amount. The controversy in the present case would therefore be decided only upon true interpretation of clause (4) of the compromise, which for the facility of 11 reference is extracted in extenso hereunder: “(4) That the appellant shall also e paid towards Gratuity a total sum of Rs.15,000/- (Rupees fifteen thousand only) in terms of the policy being followed by the respondent Samiti in respect of all other employees. However, it is also agreed that as and when the Government sanctions any further payment towards Gratuity in terms of the orders of the Supreme Court passed in favour of employees of Grant-in-aid Institutions, the respondent Samiti shall within 15 days of the receipt of the grant relating to Gratuity from the Government, remit the entire amount that may be payable in terms of the Government grant to the appellant. It is thus agreed that in case Government of Rajasthan agrees to release Gratuity to employees of aided institutions, the Management agrees to pay on the same terms as the Government decides as aforesaid.” Careful perusal of the aforesaid clause (4) would make it evident that the respondent agreed to pay to the petitioner a total sum of Rs.15,000 towards gratuity in terms of the policy being followed by them in respect of other employees and petitioner also agreed that as and when Government 12 sanctions grant relating to Gratuity, the respondent Samiti shall within 15 days of the grant relating to gratuity from the government, remit the entire amount that may be payable in terms of the Government grant to the appellant. It was agreed that in case the Government of Rajasthan agrees to release the gratuity to employees of aided institutions, the management shall pay in the same terms as the Government decides aforesaid. There are thus two parts of clause (4), supra. One was that petitioner agreed to receive gratuity till it was sanctioned by the government in favour of respondent Samiti in terms of the order of Supreme Court and second that such payment towards gratuity shall be sanctioned by the government if such order of Supreme Court is eventually passed in favour of the employees of the aided institutions. The judgement though eventually has gone in favour of the employees of grant in aid institutions, but at the same time it is also favourable to the government in the sense that the government has been exonerated of the liability to pay grant in aid towards 13 payment of gratuity. This was so because the Supreme Court held that gratuity does not form part of the approved expenditure in terms of Rule 14 of the Rajasthan Non- Government Educational Institutions Rules, 1993. Even if therefore one were to give contextual interpretation to this part of clause (4), the fact remains that in the concluding part the parties further agreed that “in case Government of Rajasthan agrees to release the Gratuity to employees of aided institutions, the Management agrees to pay on the same terms as the Government decides as aforesaid.” The later part of course form part of the complete text of para 4 and shall have to be read in continuation of the earlier part where it is provided that “it is also agreed that as and when the Government sanctions any further payment towards Gratuity in terms of the orders of the Supreme Court passed in favour of employees of Grant-in-aid Institutions, the respondent Samiti shall within 15 days of the receipt of the grant relating to Gratuity from the Government, remit the entire amount that may be payable in terms 14 of the Government grant to the appellant.” The appellant may have a legitimate grievance that the aforesaid clause of the agreement was cleverly worded and that even though the eventual judgement of the Supreme Court has ruled in his favour entitling him to receive gratuity but nevertheless the respondents by relying on later part of the aforesaid clause did not make payment of such gratuity to him but that is the consequences of the resultant situation obtaining after the judgement of Supreme Court that while the government has been exonerated of its liability to make payment of grant in aid towards gratuity, at the same time, the employees have been held entitled to receive gratuity from the aided educational institution. Once the Supreme Court has exonerated the government of its liability to make payment of grant in aid to aided institutions as grant, it would now become the liability of the respondent Samiti to make payment of gratuity to the petitioner. At the same time, however all other similarly situated employees, who were like the petitioner paid only a sum of 15 Rs.15,000 in terms of the policy so far being followed by them and they have been paid the full amount of gratuity as would be evident from the instances given above. The petitioner though consented to clause (4) of the aforesaid compromise on the condition of his receiving the gratuity, if eventually the judgement of Supreme Court were to hold in favour of the employees of the grant in aid institutions and though the judgement has actually ruled in favour of such employees, but at the same time, the government was also exonerated of its liability to make payment of grant in aid towards gratuity. He now find himself in a precarious position and dichotomy of the situation is that having agreed to the condition that “in case Government of Rajasthan agrees to release the Gratuity to employees of aided institutions, the Management agrees to pay on the same terms as the Government decides as aforesaid”, the petitioner is now seeking writ of certiorari as also mandamus for release of the amount of gratuity on the ground of discrimination upon crystallisation of the rights in his 16 favour by following the judgement of Supreme Court and also on the ground of discrimination. In totality of the circumstances, however, it cannot be said that the Tribunal in any manner faulted in rejecting the application of the petitioner but at the same time the petitioner also cannot be left in lurch without any remedy because of the unjust application of the aforesaid clause (4) of the compromise which though proceeds on the footing that if eventually the Supreme Court pass the order in favour of the employees of grant in aid institutions, the petitioner would be entitled to receive gratuity, yet makes the same to depend upon another contingency that the amount of gratuity shall be payable to the petitioner within 15 days of the receipt of the grant from the government and that he would be receiving same if the Government of Rajasthan agrees to release the gratuity. In the normal course, a party entering into a compromise with another on particular terms and conditions cannot be allowed to wriggle out the same but in the peculiar facts of this case as referred to above, the 17 appropriate course for the petitioner would be to apply for revival of the D.B. Special Appeal (W) No.828/94, which he decided to withdraw on the terms and conditions aforesaid and insist for its decision on merits and upon petitioner's doing so obviously the respondent Samiti would also be not bound by the terms and conditions of the aforesaid compromise and contest the matter on its own merits. In the face of the aforesaid clause, however, it is not considered appropriate to straightway issue the kind of mandamus that has been prayed for directing the respondents to make payment of gratuity. The writ petition is disposed of with the aforesaid liberty to the petitioner and with the observations made above. (MOHAMMAD RAFIQ), J. RS/