Miss Usha Hamilton v. State Of U. P. — 1988 DIGILAW 1000 (ALL)

JUDGMENT S. K. Dhaon, J. 1. The averments are these. One late Miss A. S. Elias was a teacher in Jagat Taran Girls Inter College, Allahabad (hereinafter referred to as the College). She was to retire from service on 28th July, 1983. Since she was retiring in the mid-session, under a Government order dated 15th May, 1978, she was allowed to continue till the end of the academic session, viz., 30th June, 1984. She died on 28th August, 1988. For the purpose of the payment of the gratuity she nominated the petitioner no. 1, who was the daughter of her sister, in the prescribed form. The nomination paper was duly accepted by the College. Upon the 'death of Miss Elias, the petitioner applied for the payment of the gratuity to her. The papers were forwarded to the Deputy Director of Education by the College. By a communication dated 8th January, 1987, the Manager of the College informed the petitioner that the Deputy Director of Education by his order dated 15th December, 1986, had declined to make the payment of the gratuity payable to Miss Elias to the petitioner. The decision of the Deputy Director is being impugned in the present petition. 2. The Deputy Director refused the payment of the gratuity to the petitioner on the ground that the nomination made by Miss Elias in favour of the petitioner was invalid as she did not fall in the category of the members of the family as incorporated in Rule 4 (b) of the U.P. School and College Teachers Gratuity Fund (hereinafter referred to as the Rules). This view of the Deputy Director has been assailed before us. An application had been made by one Mrs. A. H. Hamilttan, who claims herself to be the sister of Miss Elias, for being impleaded as the petitioner no. 2 in this petition. This application had been allowed by us. The submission is that in any view of the matter, Mrs. Hamilttan would be entitled to receive the payment of gratuity. 3. A. H. Hamilttan, who claims herself to be the sister of Miss Elias, for being impleaded as the petitioner no. 2 in this petition. This application had been allowed by us. The submission is that in any view of the matter, Mrs. Hamilttan would be entitled to receive the payment of gratuity. 3. Under Rule 4 (b) of the Rules "family" includes the following relatives wholly dependent upon a teacher :- (i) Wife in the case of male teacher ; (ii) Husband in the case of a female teacher ; (iii) Sons including step and adopted children ; (iv) Unmarried and widowed daughters'; (v) Brothers below the age of 18 years and unmarried and widowed sisters (such step brothers and step sisters) ; (vi) Father ; (vii) Mother ; (viii) Married daughters (including step daughters); and (ix) Children of a pre-deceased son. Rule 6 provides that a teacher covered by the Rules, shall on completion of three years' continuous services make a nomination conferring on one or more members of his family, the right to receive any gratuity that may be admissible under the Rules. The nomination may be made in one of the attached forms as may be appropriate in the circumstances of the case. There is a note to the effect that if the teacher has not left any family, no gratuity will be payable under these rules. 4. A perusal of the list of the relatives included in " family " will immediately show that neither the petitioner no. 1 nor the petitioner no. 2 are included in the list. Only unmarried and widowed sisters are mentioned therein. If a married sister has been excluded, by necessary implication the daughter of the married sister stands excluded. Admittedly, the petitioner no. 1 is the daughter of the petitioner no. 2 who admittedly a married lady. If the petitioner no. 1, who is the daughter of married sister, is not a relative within the meaning of definition of "family ", the nomination made in her favour by Miss Elias was of no avail as the same could be made only in favour of one or more members of the "family ". The question is 5 whether the definition of "family" as contained in Rule 4 (b) is exhaustive ? The definition, on the face of it, is an inclusive one. Therefore, normally it should be given an extensive meaning. The question is 5 whether the definition of "family" as contained in Rule 4 (b) is exhaustive ? The definition, on the face of it, is an inclusive one. Therefore, normally it should be given an extensive meaning. The argument is that if the Rule making authority intended to make the definition restrictive and exhaustive, there was no difficulty in it using the normal expression "Means ". It is now well settled that in certain context the word "include" is capable of another construction and such a construction may become imperative if it is manifest from the context that the expression was merely employed for the purpose of adding to the natural significance of the words or expressions used. In other words, the word "include " may be equivalent to " means and include ". By giving a long list of relatives the Rule making authority intended to make the same exhaustive and there is no scope for enlarging its contents. 5. Having given a thoughtful consideration to the matter we are of he opinion that the Rule making authority laid down two conditions for enabling a person to receive the payment of gratuity of a deceased teacher. First, he should have been wholly dependent upon the teacher and secondly, he should be one of the relatives mentioned in the list. The conclusion, therefore, is irresistible that neither the petitioner no. 1 nor the petitioner no. 2 can receive the gratuity which was payable to Miss Elias. The nomination made by Miss Elias in favour of the petitioner no. 1 is of no legal consequence. 6. On behalf of the petitioner no. 1 reliance is placed upon certain provisions of the Payment of Gratuity Act to show that in the event of an employee having no " Family " within the meaning of the said Act gratuity payable to a particular employee shall be paid to his or her nominee. To get over Rule 4 of the Rules, section 4 of the Payment of Gratuity, which gives an overriding effect to the provisions of the said Act and over other enactment, has been pressed into service. There may be some force in the contention of the learned counsel if the Payment of Gratuity Act was applicable to the case of Miss Elias Our reading of the said Act shows that it has no application to her. There may be some force in the contention of the learned counsel if the Payment of Gratuity Act was applicable to the case of Miss Elias Our reading of the said Act shows that it has no application to her. The preamble of the Payment of Gratuity Act, 1972, sets out that it has been enacted to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shop or other establishments. Sub-section (3j of section 1 makes it clear that the Act shall apply to (a) factory, mines etc. (b, other shop or establishment and (c) such other establishments or class of establishments in which 10 or more persons are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. If at all, the provisions of sub-section 1 (3) (c) of the Act alone may have some relevance. However, we are clear that even that subsection had no application to the College wherein Miss. Elias was surviving as a teacher. The preamble coupled with the provisions of section 1 (3) of the Act makes it crystal clear that the Payment of Gratuity Act, 1972 is applicable only to commercial and industrial establishments. Mrs. A. H. Hamilton has produced before us a photostat copy of the certificate issued by the Administrative General to her on 20th February, 19and4. This certificate was issued under section 29 of Act No. 45 of 1963 In this certificate four assets of Miss Elias are shown. The gratuity which was payable of Miss Elias, however, was not shown. On the basis of this certificate it is urged that even if Mrs. Hamilton may not fall in the category of members of the family mentioned in Rule 4 (b), she being an heir of vuss Elias under the personal law applicable to Christians is entitled to receive the gratuity, which was payable to Miss Elias by the respondents. The premise of the submission is non-existent, as the certificate issued by the Administrator General does not include gratuity of Miss Elias. 7. If and when Mrs. Hamilton obtains a succession certificate with regard to the gratuity of Misc. The premise of the submission is non-existent, as the certificate issued by the Administrator General does not include gratuity of Miss Elias. 7. If and when Mrs. Hamilton obtains a succession certificate with regard to the gratuity of Misc. Elias from a competent court or authority, it may be open to her to approach the Director of Education under Rule 13 of the Rules, which lays down that in the event of no nomination having been made before the death of a teacher or in the event of any dispute the Director of Education, U.P., shall be the final authority and whatever award made by him shall be binding on the parties and no appeal shall lie against his decision. We have already indicated that the nomination made by Miss Elias in favour of petitioner No. 1 did not come into existence in the eye of law and, therefore, for the purposes of Rule 13 it will have to be assumed that no nomination had been made at all by Miss Elias. It may be also open to Mrs. Hamilton to assert her right as an heir of Miss Elias under the personal law before an appropriate forum and if necessary contend before it that the Rules are confiscatory in nature and are arbitrary. However, we hasten to add that we are expressing no opinion on the question as to whether Rule 13 will apply to the case of Mrs. Hamilton or on the question as to whether Mrs. Hamilton will be entitled to assert her right as an heir under the personal law of Miss Elias and advance the contention aforementioned. 8. In view of the foregoing discussion, no relief can be granted to either of the petitioners. The petition is, therefore, dismissed summarily. Petition dismissed.