JUDGMENT
J.N. Bhatt, J.
1. Whether a class of teacher is covered under the definition of “employee” in Clause [e] of Section 2 of the Payment of Gratuity Act, 1972 [for short the Act] and whether the teacher is entitled to the benefits of the Payment of Gratuity under the Act, is the sole question, which is placed directly in focus in this petition before us, upon a reference made by the Learned Single Judge, staling that in a decision of the Full Bench of this Court in the case of “Shantiben L.Christian Vs. Administrative Officer”, 2001 [2] GLH-389, has settled the law that a teacher does not fall within the definition of an “employee” prescribed under Section 2[e] of the Act. Notwithstanding that, it is observed in the reference by the learned Single Judge that it is expedient, that the decision of the Hon’ble Supreme Court rendered in “Jyotindranath Roy V/s Surendra Bikram Singh Agrwal”, 1996[4] SCC-403 [AIR 1999 SC 1736], it has been held that the provisions of Payment of Gratuity Act, would be attracted to the Educational Institutions and the Notification dated, 03.4.1997, issued by the Central Government were not brought to the notice of the Full Bench and had those two aspects been brought to the notice of the Full Bench, the result would have been perhaps different. And, therefore, the learned Single Judge in his conclusion, thought it expedient to refer the matter for reconsideration of it by the same Bench or the larger Bench for determining, whether the ‘Act’ is attracted to the Educational Institutions and the teachers- Staff, thereof, and that is how, the matter has come again before this Full Bench, as per the direction to Registry by the Hon’ble Chief Justice of this High Court, and we have taken up this petition today.
2. The learned Counsel and the Government Pleader appearing for the parties have, offered their submissions on the question raised in the reference. As such the question is directly covered by the decision of the Full Bench in “Shantiben” [supra] and later on upheld by the Hon’ble Apex Court in “Ahmedabad Pvt. Primary Teachers Association Vs. Administrative Officer”, 2004[1] Supreme 276. Since there is direct decision of the Hon’ble Supreme Court, obviously, it would not be necessary for us to enter into minute and meticulous further examination and discussions of other aspects.
3. Notwithstanding, that since the learned Single Judge has been prompted and inspired again to refer the same issue to the Full Bench, and as noticed from the reference, it is founded upon two following aspects. We have given our serious considerations to
determine it.
[1] that the decision of the Hon’ble Supreme Court in Jyotindranath [supra] case and
[2] the notification dated 03.4.1997, issued by the Central Government, whereby, the benefits of Payment of Gratuity Act came to be extended to the Educational Institutions in which 10 or more persons are employed, were not considered.
4. We would like to just mention that we refrain from going into the legality and propriety of such a reference after the Full Bench judgment has been rendered on the same issue and a reference by the same learned Single Judge, for a same issue, upon premise that the then existing judgment of the Hon’ble Apex Court was not brought to the notice of the Full Bench, we will deal with the matter on merits leaving technical aspect of it. The notification, copies, whereof, were, also, placed earlier on record clearly state that the Act is extended to the educational institutions, wherein, 10 or more employees are engaged or were employed on any day preceding 12 months. In other words, it is evident that it is referable to the employees, as defined in the Act of 1972, and not the class of teachers. The question which requires to be determined is as to whether even after the extension of the Act to the educational institutions, whether the definitional clause providing statutory definition of the expression of “employee” includes the teacher or not ? Merely because the Act is extended to the employees of educational institutions does not “ipso – facto” necessarily mean that the class of teacher is, also, governed by the provisions of the Act, who are as such not employees under Section 2[e].
5. The question which needs to be considered is, as to whether, clause [e] of Section 2 of the Act supplying statutory definition of the expression of an “employee” includes the class of teacher or not ? The notification is silent about it. It appears from the reference that the learned Single Judge has proceeded on the hypothesis that the definition of employees, also, includes teaching staff [Teachers].
6. In order to appreciate this aspect, let us just first consider and examine once again the definition, itself, provided in Section 2[e] of the Act, which reads as under:-
[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, semiskilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are expressed or implied [and whether or not such person is employed in a managerial 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 rule providing for payment of gratuity.
[emphasize supplied]
7. It is held by the Full Bench in “Shantiben” [supra] that the definitional clause [e] of Section 2 of the Act does not include a class of teacher. The view taken by the Full Bench of this Court has been upheld by the Hon’ble Supreme Court in ” Ahmedabad Pvt. Primary Teachers’ Association” [supra]. Mere factum of extending the benefits of the Act to the employees of the educational institutions by virtue of the said notification referred to in the reference, itself, is not sufficient. What is determining, testing and qualifying factor is, as to whether a class of teacher is covered by the definitional clause or not? This question has been resolved by the Full Bench with categorical findings and holding that the definition of an “employee” under the Act in Clause [e] of Section 2 of the Act does not cover a class of teacher and it has been approved by Hon’ble Apex Court in Ahmedabad Pvt.Primary Teachers Association [supra].
8. The case which is mentioned in the reference by the learned Single Judge is the case of “Jotindra Nath Roy’s”case [supra]. On plain reading of this judgment, manifests that it, clearly, pertains to the class of employees and not the teaching staff. It was a case in which a ‘Personnel Assistant’ of a trustee claimed the benefit of the payment of gratuity under the Act and in view of the said Notification, the benefit was conferred. It admittedly does not refer to a case of a Teacher. So is not the factual profile in the present case and so was not the factual profile in the Full Bench judgment. Therefore, two points on which reconsideration and re-appreciation of the Full Bench judgment, is sought, in a reference cannot be accepted.
9. We have no option but to reiterate that the definitional clause [e] of Section 2 of the Act does not cover a class of teacher and, therefore, the Act is not attracted as held by the Full Bench in “Shantiben’s case” [supra] and approved and upheld by the Hon’ble Apex Court. It will be, also, pertinent to refer at this juncture the subsequent decision of this Court considering aforesaid both aspects, dated 26.2.2004, in Special Civil Application No.2714 of 2001 and ors. [Coram: one of us J.N.Bhatt, J] also, unequivivocally, highlights this issue. The observations in paras 4 and 5 are very pertinent. It is, also , clearly, adjudicated that the teacher is not an “employee” as defined under Section 2[e] of the Act and, therefore, the Act is not attracted Even after careful consideration of the said Central Government Notification and the decision of the Hon’ble Apex Court in “Jotindra Nath Roy’s case” [supra]. Therefore, in the result, we decide this reference and answer accordingly. The Registry is, therefore, directed to now place the matter before the learned Single Judge for consideration and disposal of the petition in accordance with law. The reference shall stand disposed of accordingly without any order as to costs.