--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION (s) NO. 3395 / 2006 MAHENDRA SINGH CHHABRA Vs. THE APPELLATE AUTHORITY, UNDER THE PAYMENT OF GRATUITY ACT, INDORE AND ANOTHER A N D WRIT PETITITION (s) NO. 7267 / 2006 M.B. KHALSA HIGHER SECONDARY SCHOOL, INDORE Vs. MAHENDRA SINGH CHHABRA * * * * * O R D E R ( 15/3/2011) The petitioner before this Court, aged about 70 years a retired employee, has filed this present petition, being aggrieved by an order dt. 4/3/06 passed by the appellate authority under the Payment of Gratuity Act, 1972. The contention of the petitioner is that he was a teacher serving MB Khalsa Higher Secondary School, an unaided educational institution, as stated by the learned counsel for the respondent No.2. He was appointed on 1/9/56 and has --- 2 --- attained the age of superannuation on 14/9/2000. The contention of the petitioner is that he has worked as an Asstt. Teacher from 1956 to 1967 as UDT, from 1/8/67 to 3/8/70, as a lecturer from 4/8/70 to 22/1/96 and as a Principal from 23/1/96 to 14/9/2000 ie., upto his retirement. The contention of the petitioner is that after his retirement as gratuity was not being paid to him, he was left with no other choice except to approach the Controlling Authority under The Payment of Gratuity Act, 1972 and the Controlling Authority has passed an order directing payment of gratuity by taking into account 44 years of service, amounting to Rs. 250546/-. Petitioner has further stated that the respondents being aggrieved by the order passed by the Controlling Authority came up before this Court by filing a Writ Petition and this Court vide order dt. 5/9/05 passed in WP NO. 192 / 2005 has permitted the institution to file an appeal before the competent appellate authority. Petitioner has further stated that the competent appellate authority has partly allowed the appeal of the management directing the payment of gratuity to the tune of Rs.14235.60 and for the period the --- 3 --- petitioner has served as a Teacher ie., 1/9/56 to 15/3/96 no gratuity has been awarded in the light of the judgment delivered by the apex court in CA No. 6369 / 2001 decided on 13/1/04 in the case of Ahmedabad Pvt. Primary Teachers' Association, Appellant Vs. Administrative Officer and others reported in (AIR 2004 SC 1426). The contention of the petitioner is that he is entitled for gratuity by taking into account the entire service period ie., w.e.f. 1/9/56 to 14/9/2000 as The Payment of Gratuity Act, 1972 itself has been amended by amending Act No. 47 of 2009 published in Gazette of India Part II Sec. I dt. 31/12/09. He has further drawn the attention of this Court towards Sec. 1 of the amending Act and the same reveals that the amending act has come into force with retrospective effect ie., from 3/4/1997. Learned counsel for the petitioner has vehemently argued before this court that the order passed by the appellate authority is bad in law as the entire period during which the petitioner has served as a Teacher and Principal has not been taken into account. He has placed reliance upon a judgment delivered by the Chattisgarh High Court in the --- 4 --- case of Administrator Lahidhi Multipurpose Higher Secondary School and another Vs. Smt. Vidyavati Chaturvedi and others 2006 (2) MPHT 43 (CG) and his contention is that keeping in view the judgment delivered by the Chattisgarh High Court, a Principal serving a non government aided institution is also entitled for gratuity. The petitioner has prayed for the following reliefs : (a) issue writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order quashing and setting aside the order (Annexure P/1) dt. 4/3/06 passed by the respondent No.1 and to provide all other consequential benefits as if the impugned order had never been passed against him; (b) such other relief of reliefs as this Hon'ble Court deems just and proper in the facts and circumstances of the case may also be granted. (c ) award cost of the petition. A reply has been filed on behalf of respondent No.2 Institution and the contention of the learned counsel arguing the matter on behalf of respondent No.2 is that the initial order passed by the controlling authority dt. 28/3/03 is bad in law as the petitioner was a teacher at the relevant point of --- 5 --- time and Teachers are not entitled for payment of gratuity in the light of the judgment delivered by the apex court in the case of Ahmedabad Pvt. Primary Teachers' Association, Appellant Vs. Administrative Officer and others (supra). She has also argued before this court that the petitioner was temporarily posted as a Principal in absence of a regular Principal and was paid an additional sum of Rs.500/- per month and he was not a regular Principal and was simply officiating as a Principal in addition to discharge of his duties as a Teacher. He was for all practical purposes serving the institution as a Teacher and therefore being a Teacher he was not entitled for gratuity and the appellate authority has erred in law and facts and granted gratuity to the petitioner even for the period for which he has served as officiating Principal. Learned counsel has prayed for quashing of the order passed by the controlling authority dt. 28/3/2003 as well as the order dt. 4/3/2006 passed by the appellate authority. Learned counsel for the petitioner has placed reliance upon a judgment delivered by the apex court in the case of BHEL and another Vs. BK Vijay and others --- 6 --- (2006 SCC (L&S) 411) and her contention is that in the light of the aforesaid judgment teachers are not entitled for gratuity as they are not covered under the provisions of Payment of Gratuity Act, 1972. Learned counsel for the respondent No.2 has argued that the order passed by the appellate authority deserves to be set aside and the petitioner is not entitled for any gratuity. Heard learned counsel for the parties at length and perused the record. In the present case, the petitioner aged about 70 years before this court is a retired employee and has attained the age of superannuation on 14/9/2000. The petitioner started his service career on 1/9/56 as a Teacher in MB Khalsa Higher Secondary School and was promoted from the post of UDT to Lecturer and finally posted as Principal on 23/1/96. He was paid an additional sum of Rs.500/- for discharging the duties of Principal in addition to his work of Teacher as stated by learned counsel for the respondent No.2. The petitioner has attained superannuation on 14/9/2000. As no gratuity was paid to him , he submitted an --- 7 --- application before the Controlling Authority for payment of gratuity and the controlling authority vide order dt. 28/3/03 by taking into account the services of the petitioner w.e.f. 1/9/56 to 14/9/2000 has directed payment of gratuity to the tune of Rs.250546/-. A writ petition was preferred in the matter by the Management and thereafter a liberty was granted to the management to prefer an appeal before the appellate authority under The Payment of Gratuity Act, 1972. The appellate authority has now finally passed an order which is impugned in the Writ Petition and the order dt. 4/3/06 reveals that gratuity has been paid to the petitioner only for the period he has worked as Principal meaning thereby for the period w.e.f. 23/1/96 to 14/9/2000. This Court has carefully gone through the order passed by the appellate authority. The appellate authority has placed reliance upon the judgment delivered in the case of Ahmedabad Pvt. Primary Teachers' Association, Appellant Vs. Administrative Officer and others (supra) wherein it has been held that teachers are not entitled for gratuity. In the present case, the petitioner has attained the age of --- 8 --- superannuation while serving as Principal though on officiating basis. A similar problem arose in respect of payment of gratuity in the State of Chattisgarh to a Principal of non government aided educational institution and the Chattisgarh High Court in the case of Administrator Lahidhi Multipurpose Higher Secondary School and another Vs. Smt. Vidyavati Chaturvedi and others 2006 (2) MPHT 43 (CG) in paragraphs 8 to 15 has held as under : 8. Referring to the provisions of Section 2(a) and 2(h) of the Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975 (hereinafter referred to as "the Adhiniyam, 1975"), learned Counsel for the petitioners argues that the Principal shall be included within the meaning of a "teacher" and the teachers have not been held to be the "employees" within the meaning of Section 2(e) of the Payment of Gratuity Act, 1972 by the Apex Court in the matter of Ahmedabad Pvt. Primary Teachers' Association, Appellant Vs. Administrative Officer and others deceased who being the Principal of the institution was covered under the definition of the teacher and his wife shall not be entitled for Payment of Gratuity under the Act of 1972. I have considered the arguments advanced by learned Counsel for the petitioners. Section 2(a) and 2(h) of the Madhya Pradesh Ashaskiya School --- 9 --- Viniyaman Adhiniyam, 1975 are quoted as under: 2. (a) "Teacher" includes the Head of a school; 2. (h) "Head of a School" means the principal academic officer, by whatever name called, of a recognized school. The word "employee' as defined in Section 2(e) of the Payment of Gratuity Act, 1972, reads as under: 2. (e) "employee" means any person (other than an apprentice) employed on wages, in any establishment factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semiskilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. 9. While dealing with the matter of Ahmedabad Pvt. Primary Teachers' Assn. (supra), for their entitlement to the payment of gratuity, the Apex Court has held that "this Act, 1972 is a piece of social welfare legislation and deals with the payment of gratuity which is a kind of retiral benefit like --- 10 --- pension, provident fund etc. Gratuity in its etymological sense is a gift, especially for service rendered, or return for favours received. For the wage-earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The provisions contained in the Act are in the nature of social security measures like employment insurance, provident fund and pension. The main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of rules of superannuation or physical disablement or impairment of vital part of the body. The expression "gratuity" itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide over post-retiral hardships and inconveniences". 10. For determining as to whether the teachers were included within the meaning of employee under the aforesaid Act, the Apex Court took the aid of other statutes dealing with the same subject matter for consideration of provisions in this statute on the doctrine of "pari materia" and on a comparison of definition of "workman" in Section 2(s), Industrial Disputes Act, 1947, and the definition --- 11 --- of "employee" in Section 2(i), Minimum Wages Act, 1948, Section 2(13), Payment of Bonus Act, 1965 and Section 2(f), Employees Provident Fund and Miscellaneous Provisions Act, 1952 held 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 entitled to be covered for extending gratuity benefits under the Act. The Apex Court held in this matter that the "teachers" do not answer the description of "employees" who are "skilled", "semi-skilled" or "unskilled". These three words used in association with each other intend to convey that a person who is "unskilled" is one and who is not skilled and a person who is "semi- skilled" may be one who falls between the two categories meaning that he is neither fully skilled nor unskilled. The contention raised in the said matter that the teachers should be treated as included in the expression "unskilled" or "skilled" was not accepted by the Apex Court. It has been further held by the Apex Court that the teachers are also not employed in the "managerial" 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 can not be held to be employed in the "managerial" or "administrative" capacity. Therefore, the Apex Court held that the teachers are clearly not --- 12 --- intended to be covered by the definition of "employee". 11. It is in light of the above decision that learned Counsel for the petitioners submits that since the deceased was also a teacher as the word "teacher" used in the aforesaid Adhiniyam of 1975 includes the Head of the School which has been defined to mean "Principal", therefore, the Principal shall also be included in the definition of teacher and as per the enunciation of the Apex Court in case of Ahmedabad Pvt. Primary Teachers Assn. (supra) the principal will also not be entitled for gratuity. The arguments advanced by learned Counsel for the petitioners is misconceived. The definition of the teacher in the said Adhiniyam of 1975 is restricted for the purposes of that Adhiniyam only. This definition of "teacher" may include the Principal therein, but it does not mean that a person who is working as a Principal and included in the definition of a teacher for the purposes of this particular Act, 1975 shall not be deemed to be an employee within the meaning of the Payment of Gratuity Act, 1972. The definitions of certain words and expressions used elsewhere in the body of the statute are commonly found in the definition clause of the Statute. The object of such a definition is to avoid the necessity of frequent repetitions in describing all the subject matter to which the word or expression so --- 13 --- defined is intended to apply. A definition section may borrow definition from an earlier Act and the definitions so borrowed may not necessarily be in the definition section but may be in some other provision of the earlier Act. A definition borrowed by incorporation or reference may be some times found in the rules made under the referred statute. When a word is defined to 'mean' such and such, the definition is prima facie restrictive and exhaustive. Whereas, where the word defined is declared to 'include' such and such, the definition is prima facie extensive. (Please see : Principles of Statutory Interpretation by Justice G.P. Singh, 6th Edition 1996, Pgs. 124, 125 & 126). Therefore, the definition of the word 'teacher' used in the Adhiniyam of 1975, which includes the Headmaster of the School means the 'principal academic officer' is an extensive definition so as to include The 'principal' in it, but if we examine the definition of employee mentioned in the Payment of Gratuity Act, 1972, it would appear that this definition is prima facie restrictive and exhaustive. It starts with the words "employee means any person" and then it expresses many categories of employees with a further expression of "whether or not such person is employed in a "managerial" or "administrative" capacity. In the said situation, the words used in the definition of "employee" in the Act, 1972 is to be given a restrictive meaning and, therefore, the meaning of --- 14 --- word "employee" in various sections of the Act will be the meaning which has been given in the definition clause alone and the meaning and expression from other enactments can not be borrowed to bring or to oust a particular person from the definition of the "employee" given in this Act. 12. The Apex Court while dealing the above matter has particularly held about the teachers that even if all the words used in the definition clause of the Act, 1972 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 employees given in the definition clause. It has been held that "trained" or "untrained" teachers are not "skilled", "semi-skilled" or "unskilled", manual, supervisory, technical or clerical employees. It is further held that they are also not employed in "managerial" 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 can not be held employed in "managerial" or "administrative" capacity, therefore, finally the Apex Court held that the teachers are clearly not intended to be covered by the definition of "employee". 13. If we examine and analyse the case of the Principal on the basis of the above enunciations and principles --- 15 --- of law, it would appear that a Principal is a head of the institution and his service character is different than the service character of a teacher. Though the Principal may not be said to be engaged in skilled, semi-skilled or unskilled, manual or technical or clerical work, he is always engaged in supervisory work in the "managerial" or "administrative" capacity. One of the examples is that the Head of the Institution has been defined as the Enquiry Officer under Rule 7 of the The M.P. Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ko Padachyut Karne, Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983 in case of a departmental enquiry of an employee of the said institution. The case may be, like the present one, that the Principal is occasionally doing the job of teaching but since his main work is of supervisory nature and the character of work is not only imparting of education but also is of managerial and administrative, it indicates that he is an employee within the meaning of Section 2(e) of the Payment of Gratuity Act and his case is distinguishable from the case of a teacher. 14. According to the principles of statutory interpretation referred to above, since for finding out the meaning of the word employed in various sections of the Act in the meaning to be ordinarily given to it is that given in the definition clause, --- 16 --- therefore, even if the principal is included in the definition of teacher in other enactments and the teachers have been excluded from the definition of the employees as per the enunciation of the Apex Court in case of Ahmedabad Pvt. Primary Teachers Assn. (supra), the Principal would not be held to be a teacher for the purpose of the present Act, 1972 and he shall be deemed to be an employee for the purpose of this Act. Therefore, I conclude that the "principal" of non- Government aided educational institution though is a "teacher" within the meaning of Section 2(a) and 2(h) of the Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975 but he is also an 'employee' within the definition of Section 2(3) of the Payment of Gratuity Act, 1972. 15. In light of the aforesaid discussion, I find no merit in the petition. The petition is dismissed. If the amount of gratuity has not been paid till date, it shall be paid within a period of one month from today. Since the respondent No. 1 is a widow of the deceased employee and the Act of 1972 is piece of social welfare legislation and the gratuity is a kind of retiral benefit like pension, provident fund etc., I deem it proper to incorporate an interest clause in case of default of payment. I hereby direct that if the amount of gratuity is not paid within a period of one month from today then in that case it shall carry interest at the rate of 6% per annum --- 17 --- from the date of order passed by the Controlling Authority till the date of its realization. No costs. The Chattisgarh High Court in the aforesaid case has held that Principal is also entitled for gratuity amount under The Payment of Gratuity Act, 1972 and therefore to the extent the appellate authority has passed the order for payment of gratuity for the period the petitioner has worked as Principal, does not warrant any interference. The petitioner in the present case is claiming gratuity for the entire service. Learned counsel for the petitioner has brought to the notice of this Court, The Payment of Gratuity (Amendment) Act, 2009 and the same has received the assent of the President on 31/12/09 and published in the Gazette of India Extraordinary Part II on 31/12/2009. The statement of objects and reasons of the aforesaid amendment Act reads as under : STATEMENT OF OBJECTS AND REASONS :- 1. The Payment of Gratuity Act, 1972 provides for payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishment --- 18 --- and for matters connected therewith or incidental thereto. Clause (c ) of Sub – Section (3) of Section 1 of the said Act empowers the Central Government to apply the provisions of the said Act by notification in the Official Gazette to such other establishments or class of establishments in which ten or more employees are employed, or were employed, on any day preceding twelve months. Accordingly, the Central Government had extended the provisions of the said Act to the educational institutions employing ten or more persons by notification of the Government of India in the Ministry of Labour and Employment vide number S.O. 1080, dated the3rd April, 1997. 2. The Hon’ble Supreme Court in its judgment in Civil Appeal No. 6369 of 2001 dated the 13th January, 2004, in Ahmedabad Pvt. Primary Teachers’ Association vs. Administrative Officer and others [AIR 2004 Supreme Court 1426] has held that if it is extended to cover in the definition of ‘employee’, all kinds of employees, it could have as well used such wide language as is contained in Clause (f) of Section 2 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 which defines ‘employee’ to mean any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment. It has been held that non-use of such wide language in the definition of ‘employee’ under clause (e) of Sec. 2 of the Payment of Gratuity Act, 1972 reinforces the conclusion that teachers are clearly not covered in the said definition. 3. Keeping in view the observations of --- 19 --- the Hon'ble Supreme Court, it is proposed to widen the definition of ‘employee’ in order to extend the benefit of gratuity to the teachers. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha on the 26th November, 2007 and the same was referred to the Standing Committee on Labour which made certain recommendations. After examining those recommendations, it has been decided to give effect to the amendment retrospectively with effect from the 3rd April, 1997, the date on which the provisions of the said Act were made applicable to educational institutions. 4. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was withdrawn and a new