Case: BIRLA INSTITUTE OF TECHNOLOGY Vs. THE STATE OF JHARKHAND

Abhay Manohar Sapre, J. 1. On 07.01.2019, this Court placing reliance on the decision of this Court in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer and Others (2004) 1 SCC 755 , which was brought to the Court’s notice by the learned counsel appearing for the appellant, allowed the appeal and set aside the order of the High Court.2. However, after the pronouncement of the order in this appeal, it came to the notice of this Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to our notice while passing the order on 07.01.2019 in this appeal.3. This Court, therefore, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order: "On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein.Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997.In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997.Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal.The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench.The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr.Justice Abhay Manohar Sapre and Hon’ble Ms.Justice Indu Malhotra as early as possible.” 4. It is in the light of the aforementioned order, the matter was listed before this Bench for passing the appropriate order in the disposed of appeal. 5. We heard the learned counsel for the parties. Both the parties have also filed their written submissions. 6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition of “employee” as defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered in appellant’s favour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to recall our order dated 07.01.2019 because, in our view, it contains an error apparent on the face of the order.7. The apparent error is that it was not brought to our notice that the Parliament, consequent upon the decision of this Court in Ahmadabad Pvt. Primary Teachers Association (supra), had amended the definition ofas defined in Section 2(e) of the Payment of Gratuity Act by amending Act No. 47 of 2009 with retrospective effect from 03.04.1997. This amendment, in our opinion, had a direct bearing over the issue involved in this appeal.8. What was brought to our notice was only the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra) by contending that the issue involved in this appeal remains no longer res integra and stands answered infavour. We accepted this submission.9. In our view, the error mentioned above is an error apparent on the face of the record of the case because the material, subsequent event, which came into existence, had a direct bearing over the controversy involved in this appeal, was not brought to our notice at the time of hearing the appeal. It is this apparent error, which led to passing of the order dated 07.01.2019 in favour of the appellant.Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal.23. As mentioned above, the issue in question was subject matter of the decision rendered in the case of Ahmadabad Pvt. Primary Teachers Association (supra). This Court had examined the question in the light of the definition of the worddefined in Section 2(e) of the Act as it stood then. The definition reads asmeans 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, semi¬skilled, 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 governed by any other Act or by any rules providing for payment of gratuity.The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No. 47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.31. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned counsel appearing for the appellant (employer) on the decision of Ahmedabad Pvt. Primary Teachers Association(supra) is wholly misplaced and does not help the appellant in any manner. It has lost its binding effect.Be that as it may, in our view, pendency of any writ petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of respondent No.4 (teacher) in any manner in claiming gratuity amount from the appellant(employer) under the Act.34. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now.