JUDGMENT
Permod Kohli, J.
1. Petitioner herein is a deemed University notified under Section 3 of the University Grants. It is aggrieved of an order dated 15.4.2005 passed by the Commissioner, Labour Training & Employment Dept., Govt. of Jharkhand as Appellate Authority under the Payment of Gratuity Act, 1972 in P.G. Appeal No. 02/22 affirming the order dated 7.9.2002 passed by the Deputy Labour Commissioner cum Controlling Authority in P.G Case No. 2/02.
2. Factual background’ leading to the present writ application is noticed hereunder.
Respondent No. 4 joined the petitioner-Institution as Assistant Professor on 16.9.1971 and superannuated in the name capacity on 30.11.2001. After retirement respondent No. 4 made an application before the petitioner-employer claiming gratuity. This application came to be rejected en 24.12.2001. Thereafter, respondent No. 4 made an application before respondent No. 3 Controlling Authority notified under the Payment of Gratuity Act. 1972. Respondent No. 3 after seeking response of the petitioner and holding an inquiry, passed order dated 7.9.2002 directing the petitioner to pay the amount of Rs. 3,38,796/- as gratuity along with 10% simple interest till the payment to respondent No. 4. Petitioner herein refereed an appeal being P.G. Appeal No. 02/02 before respondent No. 2. Appellate Authority notified under the Payment of Gratuity Act, 1972 challenging the order of respondent No. 2. Appeal preferred by the petitioner also came to be rejected vide impugned order dated 15.4.2005. Common grounds for challenge before the Appellate Authority as also before this Court are (1) Respondent No. 4 is not an employee within the meaning of Payment of Gratuity Act, 1972 (2) Respondent No. 4 is not covered under the notification dated 3.4.1997 issued by the Central Government and thus is not entitled to gratuity and (3) Respondent No. 4 having not completed five years of continuous service after the notification dated 3.4.1997 is not eligible to earn gratuity. Controlling Authority at well the Appellate Authority rejected all the contentions of the petitioner, inter alia, held that (1) Respondent No. 4 is an employee within the meaning of Section 2(c) of the Payment of Gratuity Act, 1972 (2) Notification fully covers the case of the respondent No. 4 having made the Payment of Gratuity Act, 1972 applicable to the Educational Institutions and (3) five years continuous service is to be reckoned from the date of joining of service and not from the date of issuance of notification applying the provisions of Payment of Gratuity Act, 1972 to the institution in question.
3. I have heard learned Counsel for the parties.
4. Before questions raised in the petition and argued at length by the learned Counsel for the parties are answered, it is deemed proper to refer some of the relevant provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as the Act) which read as under:
2(e) “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 ore 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 past under the Central Government or a State Government and is governed by any other Act for by any rules providing for payment of gratuity.
2(f) “employer” means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop.
(i) belonging to, or under the control of the 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 Department concerned.
(ii) belonging to, or under the control of, any local authority ,the person appointed by such authority for the supervisor and control of employees or where no person has been so appointed, the chief executive officer of the local authority.
(iii) in any other case, the person, who, or the (sic) which, has the ultimate control over the affairs of the establishment, factory, mine oilfield, plantation port, railway company or shop, and where the said affair’s are entrusted to any other person, whether called a manager, managing director or by any other name, such person.
4. Payment of gratuity.- (a) Gratuity shall be payable to an employee on the termination of his employment after the 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 (sic) years shall not be necessary where the termination of the employment of any employee is due to death or disablement.
7. Determination of the amount of gratuity.-(1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing to act on his behalf shall send (sic) written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in Sub-section (1) has been made or not determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3 A) If the amount of gratuity payable under Sub-section (3) is not paid by the employer within the period specified in Subsection (3), the employer Shall pay, from the date on which the gratuity becomes payable to the date on which it is paid simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as nun Government may, by (sic) specify:
Provided, that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.
5. It has been strenuously argued on behalf of the petitioner that Respondent No. 4 not an employee within the (sic) Section 2(e) of the Act as he was not employed on wages, in any of the organizations enumerated therein. Reading of Section 2(e) of the Act company or shop. However, this Section also (sic) employed in any of the organizations notified therein; but, petitioner is not an employee of factory, mine, oilfield, plantation, port, railway “establishment”. The expression “establishment” has not been defined under the Act. The word “establishment” as defined under the Black’s Law Dictionary is to (sic) condition of being established. (2)An institution or place of business. (3) A group of people who are in power or who control or exercise great influence cover something. The expression (sic) comprehensive to include within its ambit all kinds of institution including educational institution.
6. It is contended that nature of job respondent (sic) technical and he being the Mechanical Engineer cannot be termed as an employee within the meaning of Section 2(e) of the Act as he imparts only technical knowledge and he was also engaged in (sic) testing in a laboratory. As noticed above, for a person to be termed as an employee he should be engaged in any establishment or other skilled, semi-skilled , or unskilled, manual, supervisory, (sic) clerical work. Even if he is engaged in a managerial or administrative capacity he will fall within the definition of (sic) engagement is in any of the organizations. Since the expression “establishment” is wide enough to include the Institution like the petitioner, respondent No. 4 cannot be said to be a person who can be excluded from the definition of an employee under Section 2(e) of the Act and simultaneously petitioner also falls within the definition of employer in relation to such an establishment Reliance is placed upon (Miss A. Sundarambal v. Government of Goa, Daman and Dio and Ors.). In this case a question arose whether a teacher of a school is a workman employed in industry. In regard to school being an industry, answer was given in affirmative; however, as regards the status of the teacher working in a school is concerned, Apex Court held that teacher working in a school is not a workman. It is common case of the parties that prior to notification dated 3.4.1997 the Act had no application to educational institutions. This notification came to be issued pursuant to the observations of the Apex Court in case of State of Maharashtra and Ors. v. Dr. Hari Shankar Vaidhya and Ors. wherein Apex Court directed the Government to consider extension of the benefit of pension and gratuity scheme to the teachers working in the Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner, as was done with respect to the other aided institutions.” Hon’ble Apex Court only placed ball in Govt’s court. The Government in its wisdom chose to extend the benefit of gratuity scheme to the educational institutions which fact is not disputed in the writ application; however, what is contended is that Section 2(e) of the Act excludes from the definition of employee, a person who holds a post under the Central Government or a State Government. It is stated that petitioner being an autonomous University will be deemed to be State within the meaning of Article 12 of the Constitution of India and thus notification has no application to the employees under the petitioner-Institution. This contention is based upon misconstruction of Section 2(e) of the Act. Only such persons who hold a post under Central Government or a State Government is excluded from the definition of employee for the purpose of this Act who is governed by any other Act or by any Rule providing for payment of gratuity meaning thereby if an employee is entitled to the benefit of gratuity under any other Act or Rule governing him other than the Payment of Gratuity Act he will not be considered as an employee for the purpose of Section 2(e) of the Act so as to confer benefit of gratuity under the Act. It has simple logic that a person is not entitled to dual benefit under the different enactments. If an employee under the Central Government or a State Government is entitled to benefit of gratuity scheme under any other Act or conditions of service laid down by any law, he will not be entitled to similar benefit under this Act. It is not the case of the petitioner that respondent No. 4 is entitled to gratuity under the University Grants Act or any other law or rule, therefore, the contention has been noticed to be rejected. Apex Court in case of Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer and Ors. held that a teacher employed in a school is not an employee within the meaning of Section 2(e) of the Act. It is useful to notice the relevant observations in the aforesaid judgment which reads asunder:
24. The contention advanced that teachers should be treated as included in the expression “unskilled” or “skilled” cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may he cases where teachers who are employed in primary schools are untrained: A trained teacher is not described in the industrial field or service jurisprudence as a “skilled employee”. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words “semi-skilled” and “unskilled are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether “skilled”, “semi-skilled” and “unskilled qualify the words “manual”, “supervisory”, “technical” or “clerical” or the above words qualify the word “work”. Even if all the words are read disjunctively or in any other manner,’ trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are not “skilled”, “semi-skilled”, “unskilled”, “manual”, “supervisory”, “technical” or “clerical” employees. They are also not employed in “managerial”- or “administrative capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in “managerial” or “administrative” capacity. The teachers are clearly not intended to he covered by the definition- of “employee.
Based upon above observations, it is contended that teachers have not been held to be employee within the meaning of Section 2(e) of the Act and thus benefit of gratuity is not available to respondent No. 4. It is relevant to notice that this judgment was rendered in the case of Primary School Teachers and they cannot be said to be possessed of any expert knowledge of teaching or any technical or skilled knowledge. It is under these circumstances, Apex Court held that the teachers do not fall within the definition of “employee” under the Act. Though respondent No. 4 is a teacher in the petitioner-Institution but he is possessed of a degree in Mechanical Engineering and in course of his employment he not only teaches the students but also performs other functions like imparting technical knowledge even based on material testing in a laboratory. By and large, the nature of job of the petitioner as a teacher in engineering faculty cannot be considered to be teaching job (sic) Such a job, though academic, is also technical in nature. In my humble opinion, above judgment will not apply in the present case.
7. The last contention on” behalf of the petitioner relates to ineligibility of respondent No. 4 and the entire edifice is built on the question of commuting period of five years for entitlement of gratuity under Section 4(1) of the Act. What has been argued on behalf of the petitioner is that provisions of the Act is extended to the educational institution vide notification dated 3.4.1997 and even if it is, assumed that Act has been made applicable to the petitioner-University vide aforesaid notification, an employee should have minimum five years of uninterrupted service to his credit from the date of application of the Act. Based upon this contention, it is argued that petitioner retired on 30.11.2001, he had not completed five years of uninterrupted service from 3.4.1997. Controlling Authority as also the Appellate Authority rejected the contention and rightly so, this issue being no more res integra. Apex Court – in case ‘ of Aspinwall & Co., Kulshekar, Mangalore v. Lalitha Padugady and Ors. considered the commencement of the period for continuous service for payment of gratuity and observed as under:
The starting point of the said period is from the date an employee gets employment, which in the nature of things would vary from employee to employee. It is nowhere envisaged in the scheme from the above provisions that the continuous service of the employee would be computed in a chain from calendar year to calendar year. Completed year of service would plainly mean continuous service for one year reckonable from the date of joining employment.
8. In case of Central Coalfields Ltd. v. Union of India and Ors. a question arose whether the employee is entitled to gratuity prior to the period of nationalization from the employer who took over on nationalization. The High Court included the period from the date of initial employment as the period to be reckoned for the purposes of payment of gratuity and this view has been upheld by the Apex Court. The Apex Court observed:
The question of payment of gratuity, etc, which becomes due only at the end of the service, in respect of workmen who were continuing in service even after the appointed day, arose subsequent to the appointed day and is, therefore, not a prior liability for which the Central Government or the government company would not be liable because of Section 9 of the Act.
Thus there is no force in this contention of learned Counsel for the petitioner regarding non, completion- of five years period. The entire uninterrupted service of the petitioner is to be reckoned to determine the minimum period.
9. In view of the discussions hereinabove, I find no merit in this petition which is accordingly dismissed.