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2017 DIGILAW 757 (MP)

RAMJILAL KUSHWAH v. STATE OF MADHYA PRADESH

2017-06-21

ANAND PATHAK

body2017
JUDGMENT : Anand Pathak, J. With consent, heard finally. 2. Regard being had to the similitude of the facts and controversy in question, this petition is heard analogously along with W.P. Nos. 5393/2016, 6492/2011 and 428/2016 and a common order is passed which covers the fate of all the petitions as referred above. For convenience's sake, facts of the case narrated in W.P. No. 6492/2011 are taken into consideration. 3. The present, writ petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking mandamus to command the respondents to extend the benefit of gratuity to the petitioners. 4. According to learned Counsel for the petitioners, all the petitioners (petitioners of all the petitions as referred above, hereinafter referred as "petitioners") are either retired or in service working' as teacher/employees of grant-in-aid Educational Institutions and their service conditions and payment of salary are governed by Madhya Pradesh Ashaskiya Shikshan Sansthan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, (20 of 1978). The burden to make payment of entire salary of added employees is always been over the shoulder of the State Government. Despite being similarly situated vis-a-vis teachers/employees working in the Government schools, petitioners have not been given the benefit of gratuity in their service benefits. 5. According to Counsel for the petitioners, responsibility to provide gratuity as per the Payment Of Gratuity Act, 1972 (for short "Act of 1972") lies over the State Government and denial of same constitute an actionable claim and violation of fundamental rights and other legal rights of the petitioners. 6. Further submission of the Counsel for the petitioners is that petitioners are employees under section 2(i) of the Act of 1972 and respondent No. 1/State Government is employer under section 2(f) of the Act of 1972, because service conditions of the petitioners are governed by the State Government and over all supervision and control lies with the State Government. Fie referred the order dated 30.7.2012 passed by the Division Bench of this Court in W.A, No. 417/2009 (J.C. Mills Educational Institution and another v. Smt. Ashindra Tizvari and others) and submits that in the said case the benefit to the employees of grant-in-aid institutions have been extended regarding payment of gratuity. Fie referred the order dated 30.7.2012 passed by the Division Bench of this Court in W.A, No. 417/2009 (J.C. Mills Educational Institution and another v. Smt. Ashindra Tizvari and others) and submits that in the said case the benefit to the employees of grant-in-aid institutions have been extended regarding payment of gratuity. The said judgment has attained finality in SLP vide SLP No. 16820/2014 preferred by the State of M.P. against the order dated 30.7.2012 passed in W.A. No. 417/2009 and the said SLP has been dismissed. He further submits that present petitioners are similarly situated persons as they are also teachers/employees of grant-in-aid institutions and therefore, in the fact situation of the case they are also entitled to receive the same benefit of payment of gratuity as awarded by the Division Bench of this Court in the matter of J.C. Mills (supra). He also referred the judgment rendered by the Hon'ble Apex Court in the matter of Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School and others, 2007 (112) FLR 314 (SC) wherein grant-in-aided educational institutions have been treated to be under control of State Government for the purpose of employees provident fund while interpreting section 16(1)(b) of the Employees' Provident Fund and Miscellaneous Provisions Funds Act, 1952. He also referred the order dated 29.11.2011 passed by the Division Bench of this Court in W.P. No. 4806/2011 (s) (VTP Higher Secondary School v. State of M.P. and others). 7. According to Counsel for the petitioners, denial of benefits of payment of gratuity by the respondents is arbitrary, illegal and contrary to the judgment delivered by the Division Bench of this Court in the case of J.C. Mills (supra). 8. Respondents have filed reply in the case and contested the claim made by the petitioners on the ground of status of the petitioners as according to the respondents, petitioners are not Government employees and gratuity is only payable to the Government employees. Learned Counsel for the respondents referred the Act of 1972 and submits that petitioners are not employees of State Government and therefore, their services are not governed by the State Government and the gratuity is not payable to the employees of the grant-in-aided institutions. 9. Heard the learned Counsel for the parties and perused the record. 10. Learned Counsel for the respondents referred the Act of 1972 and submits that petitioners are not employees of State Government and therefore, their services are not governed by the State Government and the gratuity is not payable to the employees of the grant-in-aided institutions. 9. Heard the learned Counsel for the parties and perused the record. 10. As far as grant of gratuity for teachers/employees of the grant-in-aid institutions is concerned, the same is no longer res integra in view of the order dated 30.7.2012 passed in J.C. Mills (supra) case by the Division Bench of this Court wherein J.C. Mill was a 100% grant-in-aided institution and in case of its employees, it has been directed to the respondents/State to pay the gratuity to the teacher/employees of the grant-in-aid institutions. Once, the Division Bench of this Court has granted the benefit of gratuity to the employee/teacher of the grant-in-aided institution and the same has attained finality at the apex level wherein special leave to appeal preferred by the State of M.P. has been dismissed therefore, now no occasion arises for this Court to take a different view. 11. Respondents could not make out a case wherein factual differentiation could persuade this Court to take a different view. From the record, it appears that petitioners are similarly situated employees vis-a-vis teachers/employees of J.C. Mills Educational Institution and similarly the status of the institution of J.C. Mills is also of grant-in-aided institution just like the case in hand therefore, considering the fact situation of the case the writ petition preferred by the petitioners is hereby allowed and petitioners are entitled to get the benefit of payment of gratuity as per provisions of Payment of Gratuity Act, 1972 just like their counter part in the Government schools/institutions. 12. Besides that, if the controversy is seen from the provisions contained in Payment of Gratuity Act, 1972 (hereinafter referred as "Act of 1972"), then also conclusion would not be different one. Section 2(a) of the Act of 1972 defines employee. 12. Besides that, if the controversy is seen from the provisions contained in Payment of Gratuity Act, 1972 (hereinafter referred as "Act of 1972"), then also conclusion would not be different one. Section 2(a) of the Act of 1972 defines employee. Same is reproduced as below :- "employee" means 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]." 13. Teachers/employees working in the grant-in-aided educational institutions are neither holding any post under the Central Government or under the State Government nor covered by any other Act or any Rules providing for payment of gratuity but they are under the control of State Government which is further clarified from perusal of the definition of "Employer" as provided in section 2(f) of the Act of 1972. Definition of the same is reproduced as under :- "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop- (i) belonging to, or under the control of Central Government or a State Government, a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed, the head of the Ministry or the Department concerned, (ii) belonging to, or under the control of, any local authority, the person appointed by such authority for the supervision and control of employees or where no persons has been appointed, the chief executive officer of the local authority, (iii) in any other case, the person, who, or the authority which, has the ultimate control over the affairs of the establishment, factory, mine, oilfield, plantation, port, railway company or shop, and where the said affairs are entrusted to any other person, whether called a manager, managing director or by any other name, such person;" 14. Clause (II) in the above definition reflects that teachers/employees working in the establishment which is belonging to, or under the control of State Government, and therefore, the State of M.P. is in effect, the employer of the petitioners for the purpose of payment of gratuity. 15. The said aspect has been considered by the Hon'ble Apex Court in the case of Regional Provident Fund Commissioner v. Sanatan Dharam Girls Secondary School (supra) although in a matter relating to exemption available to the grant-in-aided educational institutions under section 16(1)(b) of the Employees Provident Funds and Miscellaneous Provisions Funds Act, 1952, While considering the true import of "belonging to" and "under the control of", the Apex Court has clarified that the words "belonging to" signify ownership i.e. Government owned institutions would be covered under the said part and the words "under the control of" signify control other than ownership, since ownership has already been covered under the word "belonging to". Both the words are separated by "OR" and therefore, these two words refers to two mutually exclusive categories of institutions. While the institutions 'belonging to" to the Central or State Government would imply the control of the State but the privately-owned institutions can be "under the control of" the Government in various ways. The word "control" is synonym with superintendence, management or authority to direct, restrict or regulate. The said judgment has been referred by the Apex Court recently in the matter of M/s Yeshwant Gramin Shikshan Sanstha v. Assistant Provident Fund Commissioner and others, 2017 (153) FLR 795 (SC) wherein it has been held that the grant-in-aided non-governmental institutions are working under the control of the State Government and thus would fulfil even the first condition of section 16(1) (b) of the Act of 1972. 16. Although the said discussion is in the realm of employees provident fund but the said discussion can be profitably drawn to conclude that the State of M.P., being employer under section 2(f) of the Act of 1972 is liable to make payment of amount of gratuity to the employees/teachers working in such type of institutions. 17. The question of payment of, continuation of, grant-in-aid to nongovernmental educational institutions is not in tenebrosity because the Hon'ble Apex Court in Civil Appeal No. 636/2004 (State of M.P. and another v. Sharique. 17. The question of payment of, continuation of, grant-in-aid to nongovernmental educational institutions is not in tenebrosity because the Hon'ble Apex Court in Civil Appeal No. 636/2004 (State of M.P. and another v. Sharique. A. Ali and others) has decided the controversy while passing, the order dated 7.1.2014 wherein those teachers/employees who were appointed prior to 1.4.2000 are treated under the umbrella of Madhya Pradesh Ashaskiya Shikshan Sansthan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam, (20 of 1978) and the amendment made by the State Government through amendment Act, 2000 will not come in the way of teachers appointed before 1.4.2000. Consequently, the State of M.P. issued a notification/order dated 28.2.2015 in this regard and clarified the status of persons like present petitioners. Now the persons, who are being appointed prior to 1.4.2000 shall be continue to be covered by the Act of 1978 as well as M.P. Ashaskiya Shikshan Sansthan (Adhyapako Thatha Anya Karmchariyo Ke Vetno Ka Sandhaya) (Institutional Fund) Rules, 1983 and the benefits flowing out of the said provisions. The Act of 1978 and the Rules of 1983 are exhaustive code regarding governance of grant-in-aided institutions and the provisions of Act of 1978 and Rules of 1983 as well as provisions of Act of 1972 if are seen in juxtaposition to the pronouncement of the Hon'ble Apex Court in the matter of Sharique A. Ali (supra) and Sanatan Dharam (supra) and M/s Yeshzvant Gramin (supra) as well as order dated 30.7.2012 passed by the Division Bench of this Court in the matter of J.C. Mills Educational Institution (supra), then the claim of the petitioners to receive the gratuity from the State of M.P. is established. 18. Even otherwise, by the effect of Act of 1978 and Rules of 1983, grant-in-aided institutions are working as the extended arms of the State Government to impart higher education. A noble cause with a novel idea devised by the State Government in the field of higher education but off late, somehow given a decent burial by the compelling circumstances, still the employees/teachers who were appointed prior to 1.4.2000 cannot be left at the mercy of management of the grant-in-aided institutions. State of M.P. has to pay the gratuity to the teachers/employees of grant-in-aided institutions; like the present petitioners/employees/teachers who are appointed prior to 1.4.2000 under the Act of 1972. State of M.P. has to pay the gratuity to the teachers/employees of grant-in-aided institutions; like the present petitioners/employees/teachers who are appointed prior to 1.4.2000 under the Act of 1972. Resultantly, the petition preferred by the petitioners stands allowed and disposed of accordingly. 19. Necessary benefits be accorded to the petitioners as expeditiously as possible. 20. No costs.