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SCA/7106/2001 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7106 of 2001
With
CIVIL
APPLICATION No. 6276 of 2005
In
SPECIAL
CIVIL APPLICATION No. 7106 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SHREYAS
FOUNDATION THROUGH CHAIRPERSON - Petitioner(s)
Versus
APPELLATE
AUTHORITY (UNDER THEPAYMENT OF GRATUITY ACT,1972) & 2 -
Respondent(s)
=========================================================
Appearance
:
MS
AMEE YAJNIK for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1 - 2.
MR
RAJESH P MANKAD for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 16/03/2010
ORAL
JUDGMENT
The
petitioner is the school management. The petitioner challenges an
order dated 16.5.2000 passed by the Controlling Authority under the
Payment of Gratuity Act directing the petitioner to pay an amount of
29,954/- to respondent No.3 who was employed as a primary school
teacher by the petitioner. Said order of the Controlling Authority
was challenged in appeal unsuccessfully. Appellate order dated
21.6.2001 is also under challenge.
It
is not in dispute that respondent No.3 was engaged as a primary
school teacher by the petitioner. She continued to discharge her
duties for nearly 21 years. She crossed the age of superannuation on
26.3.1997. However as per her averments, according to Government
regulations she was permitted to continue in service till 30.4.1997
i.e. till the end of academic term. It is also not in dispute that
previously teachers of primary schools were not covered under the
term employee under the Payment of Gratuity Act. However, by
virtue of amendment made by the Payment of Gratuity(Amendment) Act
2009, term employee has been amended to include such teachers
also. This amendment was given retrospective effect from 3.4.1997.
It
is the case of the petitioner that respondent no.3 having crossed
the age of superannuation on 26.3.1997, cannot get the benefit of
such amended definition.
On
the other hand, learned counsel for respondent no.3 submitted that
respondent no.3 having continued in service, cannot be denied the
benefit of said amended definition.
Having
heard learned advocates for the parties and having perused the
material on record and in view of the admitted position, I find that
the order passed by the appellate authority below need not be
interfered with. At the relevant time may be term employee
contained in the Payment of Gratuity Act would not cover respondent
no.3 as primary school teacher. However, by virtue of amendment in
the Payment of Gratuity (Amendment) Act, 2009, brought with effect
from 3.4.1997, all such teachers are now covered under the term
employee . Though respondent no.3 crossed the age of
superannuation on 26.3.1997, concededly continued in service till
30.4.1997. This was also in consonance with Government policy to
retire the teachers only at the end of academic term regardless of
the exact age when they cross retirement age. In that view of the
matter, when respondent no.3 was in service till 30.4.1997, she
cannot be denied the benefits of amendment which is introduced with
effect from 3.4.1997.
Counsel
for the petitioner however, drew my attention to the Government
Resolution dated 24.4.1990 wherein it is provided that any service
rendered by a teacher till the end of academic term but after
crossing the age of superannuation, shall not count towards
increment, pension and other retirement benefits. Meaning of the
said circular however, is entirely different and would deny the
teacher any benefit of increment falling during the said period and
weightage of the additional service subsequent to his/her crossing
the age of retirement for the purpose of counting pensionary
benefits and other retirement benefits.
Since
I find that respondent no.3 was actually in service when the
amendment in the Payment of Gratuity Act was made with effect from
3.4.1997, she cannot be denied her rightful gratuity.
In
the result, no interference is called for. Petition is therefore,
dismissed. Rule is discharged. Interim relief if any stands vacated.
Respondent
No.2 shall resultantly release the amount of gratuity deposited with
it with accumulated interest expeditiously and in any case not later
than 30.4.2010.
Direct
service to respondent no.3 is permitted.
In
view of above order, civil application does not survive. Disposed of
accordingly.
(Akil
Kureshi,J.)
(raghu)
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