SHAMARAJA UDUPA Vs. ASSISTANT LABOUR COMMISSIONER

JUDGEMENT

(1.) The question of law that arises for consideration in this appeal is whether the payment of Gratuity Act, 1972 is applicable to teachers in an educational institution. The petitioner was appointed by the third respondent-educational institution in one of the colleges run by it as a full time Lecturer on 09.11.1997. Thereafter, he served the institution in the capacity of Lecturer for 7 years and 20 days. On 30.11.2004 he resigned from service. On 10.08.2005 he made a claim against the third respondent for payment of gratuity in a sum of Rs. 1,11,784-00 with interest before the first respondent. By order dated 21.03.2006 as per Annexure-F the claim of the petitioner was dismissed on the ground that the petitioner does not fall within the definition of an employee as defined under Section 2(e) of the Payment of Gratuity Act, 1972, for short, hereinafter referred to as the 'Act'. Aggrieved by the said order, the petitioner preferred an appeal before the appellate authority under Section 7(7) of the Act. The appellate authority concurred with the view taken by the first respondent and dismissed the appeal by order dated 30.03.2007. Aggrieved by the said order, the petitioner preferred a writ petition before this Court in W.P. No. 11362/07. The learned Single Judge following the judgment of the Apex Court in the case of Ahmedabad Pvt. P.T. Association Vs. Administrative Officer, 2004 AIR(SC) 1426 held that teachers are not employees as defined under the Act and therefore the application filed under the Act for claiming gratuity is not maintainable. He further held that the judgment in the case of Rajasthan Welfare Society Vs. State of Rajasthan, 2005 AIR(SC) 2066 was referred in the context of the provisions of Rajasthan Non-Government Educational Institution Act, 1989 and therefore the said judgment has no application to the facts of this case. Accordingly, he dismissed the writ petition. Aggrieved by the said order, the present appeal is filed.

(2.) Sri. T.N. Raghupathy, learned Counsel appearing for the appellant, assailing the impugned order contended that the judgment of the Supreme Court was rendered in the context of the definition of an employee prior to the amendment. Section 2(e) is now substituted by Act 47 of 2009, which came into effect from 03.04.1997. As the petitioner was employed subsequent to 03.04.1997, it is the amended provision, which is applicable, that includes teachers. Therefore the learned Single Judge was in error in dismissing the writ petition and the authorities were not justified in not granting the relief sought for. He also pointed out that Regulations framed by the third respondent-institution expressly provided that all employees except retired and re-employed employees and medical officers shall be eligible for gratuity as per the provisions of the Payment of Gratuity Act, 1972. Therefore he submits that the impugned orders are required to be set aside and his application is to be allowed.

(3.) Per contra, the learned Counsel appearing for the respondent submitted that Regulations on which reliance is placed is not certified and therefore it had no force of law. Secondly, he contended that the Act is not applicable to an educational institution, much less, to a teacher as held by the Supreme Court and therefore no case for interference is made out.