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2004 DIGILAW 459 (RAJ)

Management Committee, Shri Gandhi Senior Secondary School, Gulabpura v. Ranga Lal Babel

2004-03-25

S.K.KESHOTE

body2004
JUDGMENT 1. - In this writ petition the petitioner-Management Committee of Shri Gandhi Senior Secondary School, Gulabpura, District Bhilwara (hereinafter shall be referred to as the petitioner) has prayed for grant of following relief, "i) This writ petition may kindly be allowed and by an appropriate writ, order or direction the order of the Rajasthan Non-Government Educational Institutions Tribunal dated 29.7.2003 may kindly be declared to be illegal and the same may be quashed and set aside and the Application filed by the respondent No. 1 before the learned Tribunal may kindly be dismissed with costs; ii) By further appropriate writ, order or direction the respondent Nos. 3 and 4 may be directed to sanction and pay grant-in-aid against the amount of Gratuity to the petitioner institution atleast to the extent of 90% i.e., at the rate at which the grant-in-aid is paid for the salary of the employees with interest as ordered by the respondent No. 2; iii) By further appropriate writ, order or direction rule 82 of the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions Etc.) Rules, 1993 may kindly be declared to be ultra vires and be struck down; iv) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner; v) The cost of this writ petition may also kindly be awarded in favour of the petitioner." 2. For the appreciation of the contentions raised by the learned counsel for the parties in the matter I consider it necessary to briefly state the facts of the case. 3. The petitioner is a Non-Government Educational Institution receiving the 90% grant-in-aid from the Government of Rajasthan. It is not receiving any grant-in-aid from the Government for the gratuity and selection grades. The Petitioner stated that in case the Government pays grant-in-aid for the gratuity, it will not shirk its liability of payment thereof to the respondent No. 1 to the extent of its share of 10%. 4. Respondent No. 1 - Rang Lal Babel is the retired employee of the petitioner. He retired on attaining the age of superannuation on 31st of August, 2000. He has not been paid and given gratuity and the benefit of selection grades. 4. Respondent No. 1 - Rang Lal Babel is the retired employee of the petitioner. He retired on attaining the age of superannuation on 31st of August, 2000. He has not been paid and given gratuity and the benefit of selection grades. He filed application No. 207/2001 before the Rajasthan Non- Government Educational Institution Tribunal, Jaipur (for short, 'the Tribunal'). Therein he prayed for grant of the benefit of selection grade on completion of 27 years of service and the amount of gratuity. He further prayed for grant of interest on the amount of gratuity. 5. The application filed by the respondent No. 1 has been allowed by the learned Tribunal under the impugned order dated 29th of July, 2003. The learned Tribunal directed the petitioner to pay to the respondent No. 1 the gratuity. The interest on the amount of gratuity has also been awarded at the rate of 9% per annum. 6. As regards to the claim made by the respondent No. 1 for grant of selection scale, the same has not been accepted but liberty has been granted to him to file fresh application. 7. Mr. Prahlad Singh, the learned counsel for the petitioner, contended that the Teacher does not fall under the category of skilled, semi-skilled and unskilled worker or manual, supervisory, technical or clerical category of employees and thus he is not entitled for the gratuity. 8. It has next been contended that the respondent No. 1 was not employed in the managerial or administrative capacity. Relying on the latest pronouncement of the Hon'ble Apex Court in the case of Ahmedabad Private Primary Teachers Association v. Administrative Officer, 2004(1) SCT 667 (SC) : AIR 2004 SC 1426 the learned counsel for the petitioner contended that the fact that the educational institution is an establishment notified under Section (1)(3)(C) of the Payment of Gratuity Act, 1972 (for short, 'the Act, 1972') is of little help to the respondent No 1. 9. Mr. V.S. Nain, the learned counsel for the respondent No. 1, on the other hand, contended that the aforesaid judgment of the Hon'ble Apex Court is not of any help to the petitioner. 9. Mr. V.S. Nain, the learned counsel for the respondent No. 1, on the other hand, contended that the aforesaid judgment of the Hon'ble Apex Court is not of any help to the petitioner. In his submission, though the Act, 1972 may not be of any help to the respondent No. 1 but the Rajasthan Non-Government Educational Institution Act, 1989 (for short, 'the Act, 1989') and the Rules framed thereunder are applicable to the respondent No. 1 and therein there is a provision for payment of gratuity to the retired teachers of the Non- Government Educational Institutions receiving grant-in-aid from the Government. In support of his contentions, he also placed reliance on this very judgment of the Hon'ble Supreme Court. 10. Both the learned counsel appearing on behalf of the respective parties have not advanced any argument regarding the validity of the Rule 82 of the Rules aforesaid. 11. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. 12. There cannot be two views that the gratuity is a kind of retiral benefit like pension, provident fund etc. It is in its etymological sense is a gift for favour received. All persons in the society need protection against loss of income due to unemployment arising out of incapacity to work due to invalidity, old age etc. For the employees, officers and other persons in the same employment, the security of income, when they become old or infirm, is of consequential importance. The provisions contained in the Act, 1972 are in the nature of social security measures like employment insurance, provident fund and pension. The Act, 1972, in principle, accepts compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and other establishments. There cannot be any doubt nor debated by the learned counsel for the parties that the main purpose and concept of gratuity is to help the employee/officer after his retirement irrespective of the fact whether the retirement is as a result of rules of superannuation or physical disablement or impairment of vital part of the body. It is a gratuitous payment given to an employee on discharge, superannuation or death. The 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 gratuitous payment given to an employee on discharge, superannuation or death. The 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, in fact and substance, a sort of financial assistance to tide over post-retiral hardships and inconveniences of the retired officers/employees/workmen. 13. Their Lordships of the Hon'ble Supreme Court negating the claims of the Teachers that they are covered by the definition of the workmen under the Industrial Disputes Act, 1947, in the case of A. Sundarambal v. Government of Goa, Daman and Diu, (1988)4 SCC 42 , held as under, "Even though an educational institution has to be treated as an 'industry', teachers in an educational institution cannot be considered as workman. The teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as 'workman' within the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled, manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. The clerical work, if any, they may do, is only incidental to their principal work of teaching." 14. In the case of Ahmedabad Private Primary Teachers Association v. Administrative Officer, (2004 Lab IC 541) (supra), their Lordships of the Hon'ble Supreme Court held that the teachers are clearly not intended to be covered under the definition of the employees contained in Section 2(e) of the Act, 1972. In para No. 25 of the judgment, their Lordships of the Hon'ble Supreme Court held, "25. The Legislature was alive to various kinds of definitions of word 'employee' contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of 'employee' all kinds of employees, it could have as well used such wide language, as is contained in Section 2(f) of the Employees' Provident Funds 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) ...... Non-use of such wide language in the definition of 'employee' in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition." 15. However, in para No. 26 of the judgment in Ahmedabad Private Primary Teachers' Association's case (2004 Lab IC 541) (supra) their Lordships of the Hon'ble Supreme Court observed that the conclusion drawn in that judgment should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. It is further observed that there are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely for the Legislature to consider and decide. 16. The Rajasthan State Legislature has enacted the Rajasthan Non-Government Educational Institutions Act, 1989. The Act provides for better organisation and development of education in the Non-Government Educational Institutions in the State. 17. Section 16 of the Act, 1989 empowers the State Government to regulate recruitment and conditions of service including conditions relating to qualification, pay, gratuity and insurance, age of retirement, entitlement of leave, conduct and discipline of persons appointed as employees in the aided institutions in the State. 18. Section 43 of the Act, 1989 empowers the State Government to make rules for the purpose of carrying into effect the provisions of this Act. In exercise of the powers conferred under Section 43 of the Act, 1989, the State Government framed the Rajasthan Non-Government Educational Institutions (Recognition, Grant-in-aid and Service Conditions etc.) Rules, 1993 (for short, 'the Rules, 1993'). 19. The Rule 18(2) of the Rules, 1993 provides that the employees of the aided educational institutions shall be entitled to gratuity as admissible under the Act, 1972 as amended from time to time. 20. It is not in dispute that the petitioner educational institution in which the respondent No. 1 was working, is aided educational institution. 19. The Rule 18(2) of the Rules, 1993 provides that the employees of the aided educational institutions shall be entitled to gratuity as admissible under the Act, 1972 as amended from time to time. 20. It is not in dispute that the petitioner educational institution in which the respondent No. 1 was working, is aided educational institution. In our State there is a separate statute granting gratuity benefits to the teachers in the aided educational institutions which are not less beneficial than the gratuity benefit provided under the Act, 1972. The State Legislature has taken cognizance of the situation of the teachers employed in the aided educational institutions and enacted the social beneficial legislation for the teachers of those institutions. 21. I am in agreement with the contention of the learned counsel for the respondent No. 1 that the decision of the Hon'ble Apex Court in Ahmedabad Private Primary Teachers' Association's case (2004 Lab IC 541) (supra) is of little help to the petitioner. It is difficult to appreciate and accept this approach of the petitioner to make all attempts to withhold the benefit of gratuity of the retired teacher. The gratuity has not been paid to him. How will he tide over the financial crisis in the old age ? 22. Mr. Prahlad Singh, the learned counsel for the petitioner, submits that to the extent of 10%, the share of the petitioner of the amount of gratuity, the petitioner is ready and willing to pay to the respondent No. 1. Even this amount has not been paid to the respondent No. 1 which shows and speaks of the conduct of the petitioner how inhumanly it has come up against the poor teacher who rendered his valuable services to the petitioner institution under all the hope and belief that on his superannuation he will get sufficient money from the employer so as to peacefully pass his old age time. 23. Mr. Prahlad Singh, the learned counsel for the petitioner, submitted that 90% aid of the gratuity amount is to be provided by the Government. 24. So far this aspect is concerned, it may be a dispute in between the Government and the petitioner but it is the primary duty of the employer to pay the full amount of gratuity to the respondent No. 1 and here the petitioner is the employer of the respondent No. 1. 24. So far this aspect is concerned, it may be a dispute in between the Government and the petitioner but it is the primary duty of the employer to pay the full amount of gratuity to the respondent No. 1 and here the petitioner is the employer of the respondent No. 1. It may go on fighting for its claim with the Government but the respondent No. 1 cannot be deprived of this benefit. It is unfortunate that though the respondent No. 1 teacher retired on 31st of March, 1995 and more than nine years have been elapsed, he has not received a single pie towards the gratuity. How this poor teacher would have been carrying on his life without the amount of gratuity, is a matter of realization. 25. As a result of the aforesaid discussion, this writ petition fails and the same is dismissed with a direction to the petitioner institution to pay the amount of gratuity together with the interest at the rate of 9% per annum as ordered by the learned Tribunal, to the respondent No. 1 Teacher, within a period of one month from the date of receipt of the copy of this order. 26. As regards to the claim made by the petitioner for proportionate responsibility is to be shared by the State Government of the gratuity amount, it is left undecided for which the petitioner is free to take separate proceedings in the appropriate forum available to it. The petitioner is ordered to pay Rs. 2000/- as costs of this writ petition to the petitioner. 27. Consequent upon the dismissal of the writ petition, the stay application filed therewith does not survive and the same is also dismissed.Petition dismissed. *******