Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 2242 (PNJ)

S. K. Sareen v. State Of Punjab

2006-05-18

AJAI LAMBA, S.S.NIJJAR

body2006
Judgment AJAI LAMBA, J. 1. This judgment of ours shall dispose of CWP No.7711 of 2005, titled s. K. Sareen Versus State of Punjab and Others as also CWP no.7940 of 2005, titled s. C. Wahi Versus State of Punjab and Others as both the petitions involve similar facts and common questions of law. CWP No.7940 of 2005 was directed to be heard with cwp No.7711 of 2005 vide Order dated 19.5.2005. For facts, we take up cwp No.7711 of 2005. 2. The petitioner has instituted this petition under Article 226/227 of the Constitution of India seeking a writ in the nature of mandamus directing the respondents to release the retiral benefits of the petitioner along with interest @ 18% per annum from the date of his retirement till the date of actual payment. It is the pleaded case of the petitioner that he was appointed as a Lecturer in Geography in Hindu college, Amritsar in September, 1967 on temporary basis and was appointed on permanent basis in July, 1971. Hindu College, Amritsar is an aided college in which 95% grant is given by the Government. The petitioner retired from Hindu College after putting in 33 years service. The petitioner became entitled to his retiral benefits i. e. gratuity etc. The respondent college is under legal obligation to disburse the amount of gratuity to the petitioner calculating the same at the rate of half the pay last drawn for each completed year of service. In that regard, reliance has been placed on ordinance 18 of Guru Nanak Dev University, Calendar Volume IV. 3. After retirement of the petitioner on 10.10.2004, the retirement benefits were not released. The Principal of Hindu College, amritsar i. e. respondent No.4 vide Letter dated 11.10.2004 asked the Bank to pay the proceeds of Fixed Deposits in favour of the petitioner as per his provident Fund Account. However till date, the respondents had not released the complete retiral dues to the petitioner. The petitioner represented to the respondents vide Representation dated 2.2.2005. 4. The petitioner had earlier instituted a petition bearing cwp No.3409 of 2005 which was dismissed vide Order dated 3.3.2005 while passing the following order:- "a perusal of the fact narrated in the pleading reveals that the petitioner retired on 10.10.2004. The petitioner represented to the respondents vide Representation dated 2.2.2005. 4. The petitioner had earlier instituted a petition bearing cwp No.3409 of 2005 which was dismissed vide Order dated 3.3.2005 while passing the following order:- "a perusal of the fact narrated in the pleading reveals that the petitioner retired on 10.10.2004. He has approached this Court through the instant writ petition for grant of retiral benefits in less than six months from the date of his retirement. We find no good ground to entertain the instant writ petition at this juncture in exercise of or extraordinary jurisdiction under article 226 of the Constitution of india. Dismissed. " 5. It is the case of the petitioner that now, more than 1 year and 7 months have elapsed after the retirement, and because the petitioner needs the money for his domestic purpose, it has become imperative for him to approach this court vide this writ petition. 6. The earlier writ petition filed by the petitioner had been dismissed because the petitioner had approached the Court in less than six months from the date of his retirement and it was at that juncture that the petition was dismissed i. e. more than one year back. The respondents have filed the reply. It is admitted that the Hindu College, Amritsar is an aided college. Reliance has been placed on Ahmadabad Private Primary Teachers Association Versus administrative Officer and Others, AIR 2004 SC 1426: (2004) 1 Supreme court Cases 755 to say that the teachers do not fall under the category of skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical employees, therefore, they are not entitled to the benefit of gratuity, they not being covered within the definition of Sec.2 (e) of the Payment of gratuity Act, 1972 (for short, `the Act) and therefore, the college management had rightly declined to release the gratuity to the petitioner. It is the case of the respondents that the teachers are not entitled to the payment of gratuity because their case is not covered under Sec.2 (e) of the Act. 7. It has been vehemently argued on behalf of the petitioner that the retiral benefits of the employee are his property and are not a bounty which is given by the State. Non release of the amount due to the petitioner has caused irreparable and mental agony. 7. It has been vehemently argued on behalf of the petitioner that the retiral benefits of the employee are his property and are not a bounty which is given by the State. Non release of the amount due to the petitioner has caused irreparable and mental agony. The petitioner has further placed reliance on judicial pronouncements wherein similarly situated teachers of respondent No.5 (Governing Council Hindu College, Amritsar) were not paid gratuity and had instituted CWP No.15370 of 2004 and CWP No.18644 of 2004. Reliance has also been placed on a Division Bench judgment of this court in the case of Hindu College Governing Council Versus N. D. Malhotra, 1993 (1) S. C. T.183 wherein Hindu College Governing Council had pleaded for aid from the State Government to privately managed government aided schools to meet their liability towards gratuity payable to their employees. Although the letters patent appeal of the Hindu College governing Council was dismissed saying that a policy matter was for the state Government to decide, it has been observed that under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to its employees. The learned counsel for the respondents on the other hand relying on Ahmadabad Private Primary Teachers Associations case (supra) has contended that the retiral benefits can only be allowed under the payment of Gratuity Act, 1972 and therefore the case of the petitioner is not based on any legal foundation. 8. We have heard counsel for the parties and have gone through the paperbook with their assistance. It is not in dispute that the provisions of Calendar of guru Nanak Dev University, Amritsar is applicable to the Hindu College. Ordinance 18 thereof reads thus:- "in addition to the benefits of provident Fund, the Governing Body of the College would grant to every teacher, at the time of retirement or death (if it is earlier) for efficient and faithful service rendered, gratuity calculated at the rate of half the pay last drawn for each completed year of service. " 9. The judgment of the HON BLE Supreme Court in ahmadabad Private Primary Teachers Associations case (supra) as relied upon by the counsel for the respondents would have no application and is clearly distinguishable on facts for the reason that the petitioner is not claiming relief under the Payment of Gratuity Act, 1972. " 9. The judgment of the HON BLE Supreme Court in ahmadabad Private Primary Teachers Associations case (supra) as relied upon by the counsel for the respondents would have no application and is clearly distinguishable on facts for the reason that the petitioner is not claiming relief under the Payment of Gratuity Act, 1972. The provisions of section 2 (e) of the Act and the applicability of the provisions of the Act, therefore, are clearly dehors the present controversy. The Institution is clearly bound by the Calendar governing the services and therefore, we have no hesitation in holding that the respondents are obliged to grant benefit to the petitioners in terms of Ordinance 18 of the Calendar reproduced hereinabove. 10. In view of the above, these two writ petitions are allowed and the respondents are directed to release the benefits to the petitioner in terms of Ordinance 18 of the Calendar, Volume IV of Guru Nanak Dev university, Amritsar. No costs.