(1.) The present petition has been filed for issuance of a direction to the respondents for release of gratuity of the petitioner for the service rendered by him in Sainik School, Kunjpura, Karnal from 01.07.1981 to 27.08.1992.
(2.) The case of the petitioner is that he had joined the Sainik School, Kunjpura, Karnal on 01.07.1981 as Assistant Master in the scale of Rs. 440-750 and was confirmed on 01.07.1983. Initially, the post was non-pensionable and the institution used to give Contributory Provident Fund, according to the rules. In the year 1986, he was put in the pay-scale of Rs. 1400-2600 and in the year 1988- 89, pension and gratuity were introduced, as per circular issued by the Board of Governors and he opted for the said benefit. After putting in service of about 11 years, the petitioner tendered his resignation by submitting an advance notice and was relieved from service on 27.08.1992. The petitioner was entitled to other releases apart from gratuity and under the wrong conception that it was not to be paid to the employees who resigned, the benefit was refused to him vide letter dated 17.04.1993 (Annexure P2). The petitioner made demand by serving a legal notice on 19.08.1993 and a sum of Rs. 12996/- was claimed which included a sum of Rs. 11400/-, gratuity @ Rs. 1900/- per month and Rs. 1596/- as 14% interest. However, vide letter dated 10.09.1993, the Board of Governors of the school denied gratuity to him by relying upon Rule 26 of the Central Civil Services (Pension) Rules, 1972 (hereinafter, referred to as the 'Central Rules'). Accordingly, reliance was placed upon Section 4 of the Payment of Gratuity Act, 1972 (hereinafter, to be referred to as the 'Act') to make the said claim. Reliance was also placed upon Union of India Vs. M/s Darshan Engineering Works & others,1994 1 RSJ 533.
(3.) In the written statement, filed on behalf of the respondents, plea taken was that under Section 2 of the Act, the petitioner did not fall under the definition of an employee and that the Sainik School run by Sainik School Society also did not come within the definition of establishment. It was alleged that the petitioner was not covered under both the provisions as he is not an employee as defined under the Act and neither the school was an establishment and therefore, the petitioner could not be said to be an employee in the establishment as defined under the Act. On merits, it was pleaded that the petitioner had the alternative remedy to approach the Labour Commissioner for deciding the matter. It was admitted that he had joined the school on 01.07.1981 as Assistant Master in the pay-scale of Rs. 440-750 but he was not entitled to other allowances as applicable to Central Government employees. The petitioner was not entitled to gratuity in view of the circular dated 08.02.1989 (Annexure P1) as a Sainik School employee would now be granted gratuity w.e.f. 01.04.1988, as per the Central Government Scheme, in lieu of the existing scheme, laid down in Sainik School Staff General Rules, 1984. A person who had resigned was not entitled for gratuity. The judgment of the Apex Court was sought to be distinguished on the ground that it pertained to a Government employee who was drawing salary and who worked in factory establishment or a particular shop.