c S . ^^ IN THE HIGH COURT OF CHHAmSGARH AT BILASPUR (C.G.) W.P. N0. :- '^^^'/OtiS.B.) PETITIONERS ADMINISTRATOR, Lahidhi Multipurpose Higher Secondary School, Chirmiri, P.0.- Chirmiri, distj-ict-Korea (C.G.) Principal, Lahidhi Multipurpose Higher Secondary School, Chirrairi, P.0.- Chirmiri, dista-ict-Korea (C.G.) VERSUS RESPONDENTS.-? .*?•''-•* /, v? ^yy.-' 9>A-,A' ^.-•' ^' z< SMT. VIDDYAVATI CHATURWEDI W/0 Late Shri Roopnarayan Chaturwedi P.O-Chhota Bazar, Near Bangla Primary school, chirmiri, P.0..- Chirmiri, District- Korea (C.G.), CONTROLLING AUTHORITY, Under The Payment Of Gratuity Act Through -Labour Commissioner Officer Korba (C.G.) ^y^ ^•^' ••' '^ WRIT PETITION UNDER ARTICLES 226 AND 227s OF THE CONSTITUTION OF INDIA mCBI COintT OP CSHHATnSOARH, BUABPUR WJ>. N0.2062/2004 Admhiistnitor, Lohidhi Muftipurpose Higher Secondnry Sehool andanolher Vs. Smt. Vidyavati Chaturviedi and others JUDfiMENT Postfor 01.08.2005 —_-_t___^_ Sd/- Sunil Kumar Sinha Judge 1^"' HIGH COURT OP CHHATTISGARH. BILASPUR W.P. N0.2063/3004 Administrator, Lahidhi Multipurpose Higher Seconcbry School and another Vs. &nt. Vidyavati Chalurvedi and o'thers Shri Viueet Kumar Pandey, counsel for fhe petitioners. Shri Rajeev Shnvastava, coimsel for respoadent no.l. JUDGMBMT (oi.8.ao(») Snnfl KlUIUU S<ln^*ni J. (1( A short but importaat question artees for consideratton in this wnt petition as to whefher a pxiacipal of fhe aidcd non- govemmcnt Educatfonal Institutton is aa "eiaployee^ within the laeaniag of section 2(e) of the Payinent of Gratuity Act 1972 (hereinafter referred to as "fhe Acf) aad the benefit ofthe Paymeat of Gratuity caa be extended to hinu or iiot ? (8( Petitioner No.l is fhe AdminMtrator and Petitioaer No.2 is thc Priacipal, Lahidlii Miilt^urpose Higher Secondary School, Chirfnuri, Distfc Korea (C.G). This is a non-govemmental aided hjgher secondary schooL The case of the petitioners is that late Roopnarayan Chatiuved -was appointed in fhis institutiou on 20.7.1966. Hedicdduriagscnriceoa 21.9.2001. Hiswifenamdy Smt. Vidyavati Chatiuvcdi, respondent no.l herein, inaic an appUcation for Paynaent of Gratuity befiire fhc managemcnt of tihe •z- iastitution but the sazae was dismissed. Thereafter, she inoved to the ControBmg Authority under the Payment of Giatuity Act and the said authority passed his ordcr dated 31.1.2004 aad awarded a sum of Rs.1,99,298/- as the amount of gtatuity pqrabte to respondeat no.l. The contention of the pctitioncrs is that since thc deceased was a 'teacbe^' ta their institution, fherefore, hc is not aa ''employee* within thc nicanuig of the aforesaid Act, EUS such, no benefit ofpaymcnt ofgratuity can be extended to his tegal representative (respondent no.l.) aiid the appllcation before the controBing aufhority was not mamtainable. The controUuag aufhority erred ia law ia exercasiag jiirisdictfon itiidcr section 4 of fhe aforesaid Act and fhe order passed by controlting aufhority shouM be quashed. (3j Reply on behalf of respondent no.l has bcen filed. It is contended by respondent no.l that her husband was uutiatfy appoiated as a teacher in the said uistitution in the year 1966 but he was proinoted to thc post of Principal by thc inanagement vKle oricr datcd 01.3.1989 and the aforesaid order ofthc xnanagement was approved aad confinned by the compctent aufhority of the Govenunent vide oider dated 06.11.1989. Copfes of these two orders have been placed on recoid as Annexures R-l/1 and R-X/2. It is contended by her that the principal of an aided aon- govcmment educatioiial institution is an ''employee' wifhia the meaiimg of Sectfon 2(e) of the Payment of Oiattuty Act 1972 and he wiB be entitted for fhe benefits of gratiuty under the law. By way of fiting rejomder the pctitioners have conteiided that fhough fhe deceased was working as a F>rincipal, but he hiinsclf had fited ''' c- an application dated 14.12.1996 before tte Rresident that he ia res^nii^ fiom the post of Prmcqwl and hc can serve the institutioa as a teacher in Ei^ish. Thcy have submitted the copy of the res^nation letter as Anncxure P-3. They have also contended vjde para 2 of tfae rejoinder that at the time of hoMing fhe post of Principal, fhc deceased was also taking 3 periods of Engtish subject in dififerent classes daify, fherefore, the dcceased was doing fhe work ofa teacher ateo. They have annexed copy of the tiine-table as Annextire P-4. There is an cndorseineat in. flic aforesaid resignatioa fetter dated 14. 12.1996, "to bc put before the Maxiaging Comnuttee''. No documeats in. relation to fbe acceptance of this lctter has been filed nor it bas beea pfcaded fhat the resignation was accepted aad fhe deccased afier resignation finin the post of Rrincipal was workiag as a teacher in the said institution. (4) So far as respondent no. 1 is conccmed, she placed her claiia before fhe coatroDing authority as has been stated hcTemabove, but the petitioncrs though caused fhcir appearance did not fite any written steteiacnt to the aforesajd clainus inade by respondent no.l. The contooUiDg authority exammed respondent no.l who supported her contentions in her stateiaent One Shri P.S. Khedwarlcar was examined for the inanagenient who stated that fhe Managing Committee of fhe institution has been dissolved and fhe new Maaagu^ Committee can on]y consider fhe casc of respondent no. 1. (5| Ater analysis of the evidence and documaite produced by both the pardes, fhe controUn^ authority by the impugncd oxder ^ dated 31.1.2004, caiac to the conclusion that the deceased namcly Roopwaxayan. Chatiuvedi was an "employee" of thc said educatfonal mstitution fiom 20.7.1966 to 21.9.2001 on the post of Lecturer aad Priacyial, therefore, he was entitled &r payment of gratuity and his wife shaB be entitted to a sma ofRs. 1,99,298/- as the amount of gratuity. It is this order of the contoolling authonty which fa uodcr chaUenge in fhis writ pctition. (6) I have heard teamed counsel &r thc parties at length and have also perused the records fited alongwith the writ petition. (7) Afler going ttuoiigh the writ petition, retum, Bejoinder aiul the nnpu^aed order of fhe contro.Bing aufhority it woiild appcar fhat the deceased was appomted as teacher in fhe year 1966 aad fhcreafter he was proiaoted as Principal on 01^.1989 imder the piovisions of Thc HLP. A^wslelya SMk^tan Sansttut ^Schooton Mete Kiaryuvt Adhy<yMka»nTatha Anya SOiiniuiehartyon Kt Padtonnat^ Niysm. 1988. His promotion was confiinned by die coaapetent aufhority of fhe State vide an order issued by fhe Diiiectorate of Public Bducation, M.P., Bhopal on 06.11.1989. Therefore, it is clcar fhat the deceased was wcB-king on the post of Principal siace 01.3.1989. Though a plea befcre this Court has been taken by the petitioners iu rejoinder that the deccased Roopnarayan has tendered his resignation and had applied for semng fhe mstitutioa as a teachcr in EttgUsh on 14.12.1986, but nothiag has been pteadcd by the petitioners anud no documeats have been placed on recoid, either bc&re this Court or before the controlting authority, to show that his resiguation fix>m the post of Prfacipal was accepted and in fact he was workmg as a teacher in s" the said institution. The petitioncrs have tried to show by fiting the timc-table that he was taldng soinc classcs of English in fhe iastitutton but fhey have not showa that he was taldng the classes ia the capacity ofa teacher onfy. On the contrary their pleading is that at the time of holding the post of Principal, the deceased was taktag the classes of English also. To substantiate, a copy of the time-table has been annexed as annexure P-4. Ifwe examine the conteate of fhis document, it would appear fhat fhis is fhe tiine tabfc ofacademic session 2001-2002, that means accordiag to (he pleadiiigs offhe petitioners vide para-2 ofthc rejojnder it would be their admission that the deceased was worldc^ as a Principal ia the academic session 2001-2002 aiid alongwith the work of F'rincjpal, Iie was also takiag English classes in the institution ia fhe said academic session of 2001-2002. Admittedty, fhe deceased has died on 21.9.2001. Therefore, it can easity be inferred that according to the adBaissions ofthe petitioners ia fheir rejoinder the deceased was worldng as a F>rincyal at tfae tune of his dcatfa. (8) Retenittg to the provistons of Section 2(a) aad 2(h) of The JHindhjfu Pradesh Ashvsldya School Waiyaman AUria^uun, 197S. (heremafter referred to as the Adhiaiyam 1975"), leamed couasel for the petitioners argues that the Principal shatl be included within the lueaning of a 'Teachei' and the teachers have iiot been held to be the ''einployees* withia the meaitmg of section 2 (e) ofthe Payment of Gratuity Act 1972 by the Apex Court in the matter of Ahmf'StfbwS JP»t.^_Krt»wni Tteochers Assn. -Vs- AdministrcHiw OJSRcer a»Mletfaers (200^ 1 SCC 755, fhere&re fhe deceased who being the Principal of the mstitution was covered A^ under the defiiiition of fhc teachcr aad his wife shaU not be entitled for P&yment of GTatuity under the Act of 1972. I have coiisidered fhe aipunents advanced by leamed counsel for the petitioners. Scction 2(^ and 2(h) of the - Madhya Pradesh Ashaskya School Vniyamaa Adhuuyain, 1975 aure quoted as zuiden "2(a| "Teadier" tacladw tlie Head ofa •chool; api) "Head of a Scfaool*' meaaa the iwinclpd academlc otBcer, by wltatewer aame called, of a recognized school" The word ''employee" as defined in section 2(e) of The Paymeat of&atnity Act 1972 reads as unden 2(e) 'eiaployee^ ineaas aay person (ofher tfaan an apprenttee) emptoyed on n^ges, ia any establishment, factoiy, mine, oilfield, plantation, port, laihway conipany or shop, to do any ddUed, semi-skiUcd, or unskilted, xnanual, supervisoiy, techaical or clcrical work, wbethcr the terms of sucli employment are express or implied [and whether or iiot such person is eaiployed in a managerial or admmisteative capacity, but does not iaclude any such person who hoMs a post undcr the Central Qcwcrmnent or a State Qovenuaent and is govemed by any ofher Act or by any rules pioviding for paymeat ofgratuity." (9) Wlule dealing wifh fhe Matter of Ahmadabal Pvt Primary Teachers' Assn. (supra) &r their entitleiacnt to tfae payment of gratuity, fhe Apex Court has held that "flus Act 1972 is a piece of social welfare legislatioa and deals with fhe payinent of gcatuity which is a Idnd of retrial benefit like pension, provident fiuul ete. Gratuity ia its etymological sense »a gift, especialty for semces rendered, or retura for favoiirs received. For thc wage-eamiiig popiilatkiii, securily of income, when fhe worker becomes old or / c y- iafirm, is of consequential importancc. The provisions oontained in fhe Act are in the nature of social security measures Uke eiuployment insurance, provident fund and pcnsfon. The main purpose and coiicept of gratuity is to help fhe worlcman after retireinent, whefher retireinent is a result of rules of supeTauauatton or physical disableiiieat or impairmeat of vital part of the body. The expression "gt'atulty'itself su^ests tfaat it is a gratuitous payment given to an employee oa dischar^, superannuation or death. Gratuity is an aiaount pajd uncounected with any coasideration and not restiag upon it, and has to be considered as soinethmg pven fi'eely, voluntanly or without recompcnse. Itis a sortoffiBancialassistance to tide over post-retiral Iiaadslups aud iaconveiuences.'' (10) For determinmg aa to whefher the teachers were included within the ineaamg of eaiployee uiider the aforesaid Act, the Apex Court took fhe aid of ofher statutes dealuig with the same subject inatter for consideratfon of provisions in fhis stetute on the doctrine of ''pari mccteria' aad ou a comparisoa of dcfinition of "workcastii" in. sectfon 2 (s), ladustrial Disputes Act 1947, aad fhe defiiiition of "einployee" in sectk>a 2(^, Miaimum. Wages Act 1948, Sectfon 2(13), Payment of Bonus act 1965 and sectfoa 2(f), Eiaployees Provident Fund aud MisceUaaeous Provisions act 1952 hdd fhat eveu on a plaia constmuction of the woiris aad expiessions used in the dcfinition clause 2(e) of the Act, teachers who are mamly eiaptoyed fbr unpartu^ education are not entitted to be covered for extendixig gratuity benefits under the Acfc The Apex Court held in this inatter that the "teachers" do not aaswer tfae description ofcinployees'' who are 'skiUed", ''seini-skiBcd'' or ''uaslaUed". These three words used in association with each other intend to convey that a person who is "unskiUed" is one and who is not skiUcd and a person who is ''semi-skilled1' may be one who falls between fhe two categories meaning fhat he is neither fully skiUed nor unskiUed. The contention raised ia the said naatter fhat the teachers should be treated as includcd ia the expression "unskiUed" or '"skiUed" was not accepted by the Apcx Coiu-L It has been furfher held by fhe Apex Coiut that the teachus are also not eiaployed ia fhe 'maaageriaf' or 'adininistratwe'* capacity. OccasionaUy, even if they do some admuustrative work as part of their duty wifh teaching, siace their maia job is impartmg education, fhey caxinot be held to be employed iu tfaje ''aaaaagerial or ''admmistrative" capacity. Therefore, fhe Apex Court held that fhe teacheis are clearly not intended to be covered by the defiiution ofem.ployee". (11) It is in Vyfit of the above decfaion tbat leamed counsel for the petitioners subinits that siace fhe deceascd was alao a teacher as the word "teacliei* iised ia the aforesaid Adhiniyani of 1975 includes the Head of flie School which has been defined to meaa "Principar, ftiere&re, the Principal shaU also be mcluded in fhe defiiution of teacher and as per the enunciatiou of fhe Apex Court in case of Ahmedabad PvtPrimaiy Teachers Assn. (supra) tfae priacipal will also not be entitled for p-atuity. The ai^uments advanced by leamed counsel for the petitioners is misconceivcd. The deEnitiDn of tfae teacher in the said Adhiufyam of 1975 is restrictedforfhepurposesofthatAdhinyamonfy. This definition lc^- '/ of "teachei^ inay ixiclude the Principal thereia, but it does not inean fhat a person who fa worfcmg as a Prmcipal and included in the definition of a teachcr &r the purposes of this particular Act 1975 shall uot be deeincd to bc an ecaployee wifhin the ineaiung of The Payment of Gratuily Act 1972. The deftniUona of certain worOs tmA ccpresstons used elseu«here ia the ftud^ <^' tfte stutute arc common^jf foa.nA In. the deJViiiUon. elmise of the •Stutute. e iriffect of sueh a deftidSSan ia to fwoUt tfie neeesstty offlvyuemt repeWlons te descrBWng atl the subjeet matter to tuftteh tfte uwrd or oqpresstoa so deflmed Is iwtended to tgyly. A OeJlnWon seetton nwy borrow dieflnSUon frwm. <m. eorHer aet wut tfce deflnitlons ao tomrowed mxy fWt necessarOy Ae tn the «te/2nffton sectlon bwt may be 1n aome other pnwrfston of the earUer Acfc A de^bittton Iwrrwwed fl^ Incorporatton w reference may be some tSmes fvuMtt. in ttke ndes made under tte re/erreA statute. WIwn a uwrd is dejlned to 'mewi' su.ch fmAsueh, the d^/lnitton ispriawfaeie restrteUpe <»ndexhaustloe. Whereas, where ffae uwnt deflned la dectared to 'iiuOude' swsh fmO. such, the d^Inttton isprtnus. faeie cactenstoe {Plxaae see /wteciptes of iStatatwg? taterxwetcttlon hu JusOce G.P.Wnah. ff* EStt»n1996. Pa.ia4. 12S & 12Q. Therefore, the definition of the woni 'teacher' used in the Adhimyam of 1975, which mdudes the Headmaster of the School ineaus the 'priacipal academic ofiBcer' is an extensive defiuition so as to iaclude tbe 'priacipal' ia it, but if we exanune the defiaition of employee mentioned in the Payiaent of Gratuity Act 1972, it would appear that this defimtion is pmna facie -'' l.-'~ / ."-^ restrkrtive and exhaustive. It starts with tfae words "einployee means aay person" aud fhen it expresses maay categories of einployees wifh a furfher e?epression of "whefher or not such person is employed in a ''tnatiageriaT or ''adnmusteative" capacily. In the said situation, the woxds used m thc definitioa ofemployee" ia fhe Act 1972 is to be given a restrictwe nieamng and, therefore, the xaeaaiag ofword "eiaployee" in various scctioiis of fhe Act wiU be the m.eaiiiug which has been given iu fhe defiaition clause alone and fhe ineaumg and expression Smsi ofher enactments caunot be borrowed to bring or to oust a particular person fix>m the dejBiutton ofthe ''einployee' given in ttus Act (12) The Apex Court while dea]in® fhe daove inatter has particularly held about tfae teachers that even if aB fhe words used ia the defuutioa clause ofthe Act 1972 are read disjimctfvdy or in any other inanner ''tcained" or '"untrained" teachers do not plamly auswcr any of the descrqitions of the nature of various employees gwen in fhe defmidon clause. It has been hdd fhat "trained" or ''uutramed" teachers are not ''sldBed*, "semi-skiBed1' or "uaddUed", maTiiial, supemsoiy, tecluucal or cleAal exnployees. It isfurther hdd that they are ateo aot eiaployed in mnnagerial" or "arlmmjstmtwc* capacity. OccasJoaaBy cven if they do soiae admmistratiye work as part of their du<y with teactung, sincc thcir inaia job is imparta^ education, they cannot be held eiaployed ia "Baan^eriar or "adinnustrative'' capacity, fhcrcfore, SoaQy fhe Apex Court held that the teachers are clearly not mtended to be covered by tbe definitfon ofemployee". (13j If we examme aad anatyse tfae case of the Principal on the basis of the ab^ve enunciatiotis aiid princq>les of law, it would appear that a Priacipal is a head of the iastitution aad his service character is dififerent thaa the service chaiacter of a teacher. Though the principal inay aot be said to be engaged in sMUed, semi-skiBed or unskilled, manual or technical or cterical work, he is always engaged ia supervisoiy work in fhe ''manageriaf or ariministrative' capacity, One of the examples is that the Head of fhe Iiistitutiou has been defined as fhe Enqiuxy Officer uader Rule 7 of The SLP. Ashashldya SMkshan Semstha. (Adhyapakon Ttttfta Anya KmramehculyoiUeo Padachyut aune Sewa Se flatane SambcmiShl Prakrtys^ Myam, 1983 m. case of a departmental enquuy of aa employee of thc said institution. The case msy be, like the present one, fhat the Principal is occasionally doing tfae job afteachixig but siace his main work is of supemsory nature aad tfae character of work is not onfy imparting of education but also is ofmanagerial aad adaninisteative, it indicates that hc is an emplayee wifhin fhe meaaing of sectioa 2(e) of the Paymeiit of Gratulty Act aad his case is distinguishable &oaa. thc case ofa teacher. (14| Accordmg to the priaciples of statutoiy interpretation referred to above, since for finrling out the meaiung of flie word emptoyed ia vanous sectioas of the Act the meaning to be ordioanly gn^cn to it is that given in the defiaition clause, thcrefore, even if the principal is induded ia fhe defiiiittoa of teacher in other enactments aad the teachers have been excluded Smm. the definitk>u of the employees as per llie enunciatfon of tte Apex Court - in casc of Abnaedabad Pvt Pmnaiy Teachers Assn.(Supx'a), the princjpal would not be heU to be a teacher for fhe purpose of the present Act 1972 axxd he shall be deemed to be an cinplbyee for the piuposc of this ./fet Therefore, I conclude fhat- "fhe ''principal* of non-goveminent aided educatfoiial instttutfon though is a *teachexa wifhin fhe meaning of Section 2(^ and 2(1^ of The Madhya Pradesh Ashaskya School Vuuyaman Adhmiyam 1975 but he is aJso an "employee" wifhin the definition of section 2(c) of fhe PEyment of Giatuity Act 1972." (1S) In Ught of the aforesaid discussioii, I fiiid no inearit in the petition. The petition is dismissed. If the amount of patuity has not been paid till date, it shall be paid within. a period of oiie inonth 6xan today. Since the respondent no, 1 is a widow of the deceased cinployee and the Act of 1972 is pfece of social wclfare legislation and the gratuity is a kmd of retrial benefit Uke peasion, pxovident fund ete., I deein it pioper to mcorporate an iaterest clause in case of default of payiaent. I hereby direct fliat jf the amount of gratuity is xiot paid withia a pcriod of oxie month fiom today thcn ia that case it shall cany interest at the rate of6% per anniitn fix>in tfae date of order passed by tbe conttoBing aufhority till thc date ofits realization. No costs. Sd/- Sunil Kumar Sinha Judge 01.08.200ei fRao/