ORDER : ANANT RAMANATH HEGDE, J. Petitioner is assailing the order passed by the second respondent - the Controlling Authority and also the order passed by the Assistant Commissioner-cum-Appellate Authority, both orders passed under the Payment of Gratuity Act, 1972 (‘Act, 1972’). 2. The Appellate Authority dismissed the petitioner’s appeal and confirmed the order passed by the Controlling Authority. In terms of the order dated 20.03.2019, the Controlling Authority directed the petitioner to pay Rs.1,74,574/- towards gratuity along with interest @10% per annum from 16.03.2018 till payment. 3. Learned counsel appearing for the petitioner taking through the facts of the case would submit that First respondent/employee was working in a college run by the petitioner. Said institution is admitted to grant-in- aid. First respondent was appointed in 1979 to a post which was admitted to grant-in-aid. After the retirement, first respondent received all the retirement benefits including the retirement gratuity, payable to an employee in an aided institution appointed in an aided post, as per the applicable Rules. 4. Learned counsel further submits that the petitioner institution is also running an unaided evening college, and in the said college, first respondent was appointed in 1988 to work as Office Assistant and he was paid a consolidated salary. All the salary payable to him for his employment in the evening college has been settled. However, first respondent, though ineligible to claim the gratuity for the employment in the unaided evening college, claimed gratuity in respect of said employment in the evening college. The Controlling Authority passed an order directing payment of gratuity and the Appellate Authority dismissed the appeal on the ground of limitation. 5. Learned counsel for the petitioner assailing the aforementioned two orders would contend that first respondent who was simultaneously employed by the petitioner, in the day college, and in the evening college (after the working hours in the day college against the aided post) is not eligible to claim gratuity in respect of the employment in the evening college as first respondent has received the full retirement benefit from his regular employment in the aided post. 6. It is urged on behalf of the petitioner that the employment in the evening college which is unaided, does not confer the benefit under the Act, 1972 as the gratuity under the Act, 1972 can be paid to only those employees whose employment is lawful. 6. It is urged on behalf of the petitioner that the employment in the evening college which is unaided, does not confer the benefit under the Act, 1972 as the gratuity under the Act, 1972 can be paid to only those employees whose employment is lawful. It is urged that the employment secured in 1988, in the evening college is not lawful as first respondent was already employed in the day college in an aided post and he could not have taken second employment in the evening college. 7. Learned counsel for the petitioner would urge that under the Karnataka Civil Services (Conduct) Rules, 1966 government servant is prohibited from taking any other employment as such second employment is void ab initio. Referring to the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 it is urged that the employee in a private educational institution was governed by the said Act. The aforementioned Act of 1975 was repealed in 1995 after the Karnataka Education Act, 1983 (‘Act, 1983’) came into force in the year 1995. 8. Under the Act, 1983, the Educational Institutions (Terms and Conditions of Service of Employees in Private Educational Institutions) Rules, 1997 was framed and it was given effect to on 25.06.1998. The said Rules governed the employees like first respondent. It is urged that under Rule 24 of Rules 1997, first respondent was not supposed to take up private employment while being in service in an aided institution. 9. Referring to The Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-aid etc.,) Rules, 2006 it is urged that the employee who is appointed against a post admitted to Grant–in-aid should not engage in private trade or employment and as such the second employment is not lawful and as a consequence first respondent is not eligible to claim gratuity. 10. It is urged by the learned counsel for the petitioner that first respondent does not fit into the definition of “Employee” defined in Section 2(e) of the Act, 1972. It is submitted that under the said definition only a lawfully employed person can be considered as an employee falling under the definition of ‘employee’ under Section 2(e) of the Act, 1972 and not the employee whose employment is contrary to law. 11. It is submitted that under the said definition only a lawfully employed person can be considered as an employee falling under the definition of ‘employee’ under Section 2(e) of the Act, 1972 and not the employee whose employment is contrary to law. 11. It is also urged that the definition of “Wages” in the said Act, 1972 does not cover the payment made to first respondent whose employment is illegal and “wages” defined in the Act, 1972 would only mean “wages” paid to the employee whose appointment is lawful. 12. Learned counsel for the petitioner would rely on the judgment of the Delhi High Court in MALVINDER KAUR VS DIRECTOR OF EDUCATION ( 2024 SCC Online). 13. Learned counsel appearing for first respondent on the other hand would contend that first respondent did receive the consolidated salary and it is a “wage” under Section 2(s) of Act, 1972. It is also urged that first respondent does fit in the definition of “Employee” as defined in Section 2(e) of Act, 1972 and all the requirements under Section 4 of the Act, 1972 have been met by first respondent as such the impugned orders are justified. 14. Learned counsel for first respondent submits that Act, 1972 does not bar the second employment and the terms of second employment do not exclude payment of gratuity and even if it is so, such exclusion is contrary to law and such exclusion if any should yield to the law. It is also urged that the petitioner itself has offered second employment and having employed first respondent in 1988, in the evening college, and having extracted the work till his retirement on 30.07.2016, the petitioner cannot raise a contention that second employment is illegal. It is also submitted that contention relating to validity of second employment is not raised before the Controlling Authority and the Appellate Authority and for the first time such contention cannot be raised. 15. Learned counsel for the petitioner by way of reply would contend that the contentions raised relating to validity of appointment is a pure question of law and can be raised at any stage of the proceeding. 16. Learned counsel for the petitioner in the alternative would also urge that the Sub-Section 5 of Section 4 of the Act, 1947 prohibits the respondent from claiming gratuity. 17. 16. Learned counsel for the petitioner in the alternative would also urge that the Sub-Section 5 of Section 4 of the Act, 1947 prohibits the respondent from claiming gratuity. 17. This Court has considered the contentions raised at the bar and perused the records. 18. Admittedly, first respondent was an employee in a post which is admitted to Grant-in-aid and all retirement benefits are paid to him in respect of the said employment. 19. The second employment was during the subsistence of first employment. Admittedly, the timings of both employments did not overlap with each other. The second employment is also under the same employer/petitioner. In other words, the second employment is with the approval of the employer. The petitioner has paid a consolidated salary to first respondent. 20. First thing that requires consideration is whether the first respondent’s second employment, in 1988, in the evening college run by the petitioner is invalid. 21. The Karnataka Civil Services (Conduct) Rules, 1966 (Rules, 1966) came into force on 10.05.1966. It applies to all State Government employees except those excluded under Rule 3 of Rules, 1966. 22. Rule 16 of the Rules, 1966 prohibits private trade, business or employment except with the previous sanction of the Government. From the plain reading of Rule 16, it is apparent that the Government servant cannot take any other employment without the previous sanction of the Government. However, it is relevant to note that Rules, 1966, applies only to the “ Government Servant” which expression is defined in Rule 2(b) of the Rules 1966, as a “civil service or post in connection with the affairs of the State of Karnataka”. 23. The petitioner is a private entity. One of the institutions run by the petitioner is admitted to Grant-in- aid. Merely because first respondent was an employee of an aided institution, it does not mean that such employee is to be treated as a Government Servant. Admittedly, first respondent was not appointed by the Government. Government has merely accorded the permission for the appointment against the aided post. The Appointing Authority is the petitioner. Thus, the Rules 1966 cannot have any application to the case on hand. 24. Respondent No.1 was appointed in the evening college in the year 1988. In the year 1988, the petitioner/institution was governed by the Karnataka Private Educational Institutions (Disciplinary and Control) Act, 1975 and the Rules, 1978 made there under. The Appointing Authority is the petitioner. Thus, the Rules 1966 cannot have any application to the case on hand. 24. Respondent No.1 was appointed in the evening college in the year 1988. In the year 1988, the petitioner/institution was governed by the Karnataka Private Educational Institutions (Disciplinary and Control) Act, 1975 and the Rules, 1978 made there under. 25. The Karnataka Education Act, 1983 (Act, 1983) came into effect in the year 1995. The said Act, 1983 repealed the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975. 26. Under the Act, 1983, the Educational Institutions (Terms and Conditions of Service of employees in private educational institutions) Rules,1997 (‘Rules, 1997’) was framed and it came into effect on 25.06.1998. Thus, after 1998 the terms and conditions of service of employees in private educational institutions were governed under the said Rules, 1997. Prior, to that such institutions were governed under the Rules, 1978 framed under the Act, 1975. 27. The Act, 1975 or the Rules, 1978 did not prohibit employee in an aided institution from taking up any private employment. However, such prohibition was introduced for the first time in the year 1997 under Rule 24 of Rules, 1997. The relevant portion of the said Rule reads as under: 24. Private trade or employment.-(1) No employee shall, except with the previous sanction of the Management engage directly or indirectly in any trade or business or negotiate for or undertake any other employment: Provided that an employee may, without such sanction, undertake honorary work of a classical or charitable nature or occasional work of a literary, artistic or scientific character, subject to the following Xxxxxx (Emphasis applied) 28. Under the said Rule 24 of Rules, 1997, the employee in aided institution cannot take up a private employment without the sanction of the employer. Rule 24 does not impose a total prohibition for second employment. However, what is required is, for second employment, the employee has to obtain the permission from the employer of the aided post. 29. In the instant case, the petitioner is the employer of first respondent in an aided institution. First respondent is also employed by the petitioner in an unaided evening college. Thus, the employment of first respondent, in the evening college which is an unaided institution is with the consent of the petitioner. 29. In the instant case, the petitioner is the employer of first respondent in an aided institution. First respondent is also employed by the petitioner in an unaided evening college. Thus, the employment of first respondent, in the evening college which is an unaided institution is with the consent of the petitioner. Under the circumstances, this Court is of the view that second employment of first respondent in the year 1988 in the unaided institution (evening college run by the petitioner) was permissible and was not against any provision of law. 30. In the year 2006, the Karnataka Pre-University Education (Academic, Registration, Administration and Grant-in-aid etc.) Rules, 2006 were framed and it came into effect on 07.07.2007. Rule 25(3)(k) of the said Rules reads as under: 25. Code of conduct for employees of aided and unaided Pre-University Colleges: (1) xxxx (2) xxxx (2) The following shall constitute misconduct- (a) to (j) xxxxxxxxx (k) engaging in any private trade or employment; 31. Under the said Rule 25(3)(k), the employee in an aided institution is prohibited from taking up another employment or indulging in any other trade or business. Rule 24(3)(k) is a departure from the earlier Rule which provides for another employment with the consent of the employer. Rule 25(3)(k) would also reveal that in case the employee engages himself in any trade or business or takes up any other employment, the same amounts to misconduct. Thus, it can be safely concluded that second employment by first respondent under the petitioner is misconduct under the Rules, 2006 which came into effect on 07.07.2007. In view of Rules, 2006, petitioner was not legally entitled to employ respondent No.1 as his employee in the evening college with effect from 07.07.2007 and first respondent was not eligible to continue as an employee of the petitioner in the evening college from the said date. However, petitioner and first respondent did not take any steps to discontinue the employment post 07.07.2007. Thus, this Court is of the view that first respondent’s employment in the petitioner’s evening college was invalid with effect from 07.07.2007. 32. Next question is whether the Act, 1971 applies to the petitioner and first respondent? The definition of “employee” under Section 2(e) of the Act, 1972 reads as under:- "2. Definitions. Thus, this Court is of the view that first respondent’s employment in the petitioner’s evening college was invalid with effect from 07.07.2007. 32. Next question is whether the Act, 1971 applies to the petitioner and first respondent? The definition of “employee” under Section 2(e) of the Act, 1972 reads as under:- "2. Definitions. - In this Act, unless the context otherwise requires, - xxx xxx xxx (e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, 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 definition of “wages” under Section 2(s) of Act of 1972 reads as under:- "2. Definitions. - In this Act, unless the context otherwise requires, - xxx xxx xxx (s) "wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance." 33. The definition of “Employee” in the Act, 1972 is sufficiently wide. It covers various kinds of employments and establishments and excludes Central and State Government employees and other employees who are governed by any other Act or Rules relating to payment of gratuity. 34. It is not the case of the petitioner that first respondent is a Central Government employee or is governed by any other Act or Rules governing payment of gratuity. Thus, first respondent can be termed as an employee coming under the definition of employee under the Act, 1972. 35. Admittedly, first respondent was paid a salary which is termed as a consolidated salary by the employer. Such payment is not excluded from the definition of wages or in other words, the definition of “wages” in Section 2(s) of Act, 1972 certainly covers the salary which is termed as a consolidated salary by the employer. 36. 35. Admittedly, first respondent was paid a salary which is termed as a consolidated salary by the employer. Such payment is not excluded from the definition of wages or in other words, the definition of “wages” in Section 2(s) of Act, 1972 certainly covers the salary which is termed as a consolidated salary by the employer. 36. The Act, 1972 is enacted to provide Gratuity to the employees engaged in establishments named in the Act, 1972. There is no dispute that the petitioner is an establishment which is covered under the Act, 1972. 37. Now the Court has to consider whether other requirements for payment of gratuity are met. Relevant portion of Section 4 of the Act, 1972, which provides for pre-requisite conditions to claim gratuity is extracted below. "4. Payment of gratuity.- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, - (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: xxxx xxxx. (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: xxx. (3) The amount of gratuity payable to an employee shall not exceed [such amount as may be notified by the Central Government from time to time]. xxx. (5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. (6) xxxx" 38. The conditions required to claim gratuity under Section 4 are: (a) That the person claiming gratuity must be an employee. (b) Employee must have served not less than 5 years. (c) Employee must have either attained superannuation or must have retired or resigned, or must have died or must have incurred disablement due to accidental disease. 39. First respondent does fit in the definition of employee. Other minimum qualifications prescribed under Section 4 of Act, 1972 are met. 40. (b) Employee must have served not less than 5 years. (c) Employee must have either attained superannuation or must have retired or resigned, or must have died or must have incurred disablement due to accidental disease. 39. First respondent does fit in the definition of employee. Other minimum qualifications prescribed under Section 4 of Act, 1972 are met. 40. Learned Counsel for the petitioner referring to Sub-Section 5 of Section 4 of Act, 1972 submits that employee has opted for retirement benefits under the post he held in aided institution and because of application of Sub-Section 5 of Section 4 , employee cannot make a claim for payment of gratuity under second employment. 41. On a reading of Sub-Section 5 of Section 4 , it is noticed that it provides an option to receive better terms of gratuity under any award or agreement or contract with the employer. Said provision does not bar payment of gratuity from second employment if the employee is otherwise eligible. Sub-Section 5 of Section 4 applies in a situation where the employee has given an option to choose between the Gratuity under the Act, 1972 or Gratuity in terms of an agreement or contract with the employer. Here, there is no agreement or contract with the employer to waive the gratuity in respect of second employment. 42. Sub-Section (5) enables the employee to chose between two different kinds of gratuity (either as per the Act, 1972 or as per the award, contract or settlement) and does not compel the employee to chose gratuity under one employment and forgo the same under another employment under the same employer. 43. Under these circumstances, this Court is of the view that the payment of Gratuity cannot be denied to first respondent on the premise that first respondent has already received benefit of gratuity under one employment. 44. However, as already noticed that there was a bar to take up the second employment during the subsistence of first employment with effect from 07.07.2007. It is indeed true that the Act, 1972 does not specifically prohibit the payment of gratuity in a parallel second employment. 44. However, as already noticed that there was a bar to take up the second employment during the subsistence of first employment with effect from 07.07.2007. It is indeed true that the Act, 1972 does not specifically prohibit the payment of gratuity in a parallel second employment. However, what is required to be noticed is first respondent’s second employment in the evening college was not permitted under law as he was employed in an aided institution in an aided post which came with a restriction, (Under Rules, 2006) that the employee shall not engage in any private trade or employment. Thus, petitioner could not have employed first respondent as an employee in the evening college and first respondent could not have continued as an employee in the evening college, run by the petitioner, post 07.07.2007, when he was already employed in an aided institution against an aided post. 45. Though first respondent technically fulfils the requirement of Section 4 of the Act, 1972, what is required to be seen is under law, he was not supposed to hold a second employment post 07.07.2007. By continuing in the second employment, first respondent effectively blocked another eligible person who could have been employed by the petitioner and petitioner also effectively blocked employment of another person by continuing first respondent in the evening college run by the petitioner. The resultant effect is a person who is otherwise eligible to occupy the post in which first respondent was employed in the evening college was prevented from occupying the said post. This being the position, this Court is of the view that first respondent cannot claim gratuity in respect of second employment from 07.07.2007 onwards as Rule 25 of Rules, 2006 clearly prohibited such second employment. 46. Respondent No.1 cannot be permitted to take advantage of his own illegal act of continuing in the second employment in the institution run by the petitioner. 47. Learned counsel for first respondent referring to Section 14 of the Act, 1972 would submit that the provisions of the Act, 1972 will have overriding effect over all other law inconsistent with the provisions of the Act, 1972 and urged that even, if second parallel employment is prohibited under any other law, the payment of gratuity for second employment cannot be denied. Though, the Act, 1972 has an overriding effect over other enactments to the extent of inconsistency, what is required to be seen is Act, 1972 does not deal with second parallel employment. The Act, 1972 is silent on the said aspect. It does not mean that second parallel employment is recognised or permitted under the Act, 1972. Thus, the prohibition contained in Rules, 2006 relating to second parallel employment cannot be construed as a provision which is inconsistent with the provisions of the Act, 1972. Thus, the prohibition relating to second parallel employment in Rules, 2006 cannot be construed as a provision inconsistent with the provisions of the Act, 1972. Hence, first respondent cannot take shelter under Section 14 of Act, 1972 to claim gratuity from second parallel employment which was not permitted under Rules, 2006. 48. However, as already noticed, prior to 07.07.2007 there was no absolute prohibition to take up second employment. Rule 24 of Rules, 1997 prohibited second employment without the consent of the employer. As already noticed, the same employer of first respondent in the day college appointed first respondent in the evening college as well. Said appointment amounts to employer’s approval for second employment, of first respondent who was already employed in an aided post. 49. This being the position, the employment of first respondent from 01.08.1988 till 07.07.2007 is valid and not in contravention of any law. However, continuation of employment post 07.07.2007 is not a valid employment and by continuing in such employment, petitioner and first respondent have effectively blocked the eligible person from occupying the post in the evening college. 50. Learned counsel for the petitioner relying on the judgment of the Delhi High Court in MALVINDER KAUR supra would urge that the second employment being void ab initio and contrary to the provision of law, first respondent is not entitled to claim gratuity. 51. This Court has referred to the aforementioned judgment. In the said case, it is noticed that the person who was not otherwise eligible for employment, secured employment by suppressing material fact and on the basis of concocted records. Under such circumstances, Delhi High Court took a view that if a person has secured employment which he was not otherwise qualified to, then such employment is void ab initio and such an employee is not entitled to any monetary benefit. 52. Under such circumstances, Delhi High Court took a view that if a person has secured employment which he was not otherwise qualified to, then such employment is void ab initio and such an employee is not entitled to any monetary benefit. 52. In the instant case, the petitioner is not in a position to establish that on 01.08.1988 when first respondent was employed in the evening college, he did not possess necessary qualification to be employed. As already noticed, as on 01.08.1988, there was no prohibition for second employment and for the first time, a condition was imposed in the year 1997 prohibiting second employment without permission of the employer. In the year 2007 i.e. with effect from 07.07.2007, the second employment is termed as misconduct. For the aforementioned reasons, the ratio laid down in the decision of MALVINDER KAUR supra does not apply to the present case. 53. For the reasons assigned, this Court is of the view that petitioner is liable to pay gratuity to first respondent from 01.08.1988 till 06.07.2007. Respondent No.1 is not entitled to claim gratuity from 07.07.2007 till his retirement on 31.07.2016 from the second employment. 54. Hence, the following: ORDER i. Writ Petition is allowed-in-part. ii. The order dated 20.03.2019 marked at Annexure - A passed by the Controlling Authority and the order dated 23.11.2021 marked at Annexure - B passed by the Appellate Authority are set-aside in part. iii. Respondent No.1 is entitled to gratuity from 01.08.1988 till 06.07.2007. iv. Respondent No.1 is also entitled to 10% interest on the amount 30 days after the date of retirement till the date of payment. v. Respondent No.1 is not entitled to gratuity from 07.07.2007 till the date of retirement i.e. 31.07.2016.