Gujarat High Court
Gujarat Homeopathic Medical College ... vs Manikaben Ramjanamsinh Yadav Wife Of ... on 16 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9815/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9815 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 9824 of 2014
GUJARAT HOMEOPATHIC MEDICAL COLLEGE AND
HOSPITAL....Petitioner(s)
Versus
MANIKABEN RAMJANAMSINH YADAV WIFE OF DECD. RAMJANAMSINH
YADAV & 2....Respondent(s)
===========================================================
Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
MR. V.R. JANI, AGP for the Respondent(s) No. 2
MR NILESH A PANDYA, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 16/06/2017
ORAL ORDER
1. Heard Mr. V.K. Patel, learned advocate for petitioners and Mr. N.A. Pandya, learned advocate for respondent no.1 and learned AGP for respondent nos. 2 and 3.
1.1 Rule returnable forthwith. Mr.Pandya, learned advocate and Assistant Government Pkeader waived service of rule and with their consent the petitions are heard for final decision and they are decided by this final order.
Page 1 of 20HC-NIC Page 1 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER
2. In this group of petitions, petitioner
- Gujarat Homeopathic Medical Collage and Hospital is aggrieved by the common order dated 31.05.2013 passed by Controlling Authority in Gratuity Claim Applications Nos.369 of 2012 to 376 of 2012 & 417 of 2012 & 16 of 2012 filed by employees of present petitioner.
2.1 The said order dated 31.05.2013 came to be confirmed by the Appellate Authority vide his order dated 07.03.2014. The petitioner has also placed under challenge the order passed by the Appellate Authority.
2.2 By impugned orders, the Controlling Authority and Appellate Authority have accepted the claim and demand of the employees for gratuity.
3. So far as factual backdrop is concerned, it has emerged from the case set up by the petitioner in this group of petitions that the petitioner is education institute managed by a trust namely Shri Hari Om Homeopathic Trust. Petitioner has claimed that it is grantinaid institute Page 2 of 20 HC-NIC Page 2 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER and it receives 100% grant towards salary of the employees and 50% grant towards administrative expenses from the state government.
4. The petitioner has claimed that the concerned claimants who filed claim applications before the Controlling Authority were employed by the petitioner college and hospital run by the trust. 4.1 However, in view of the fact that the said claimants were engaged as teachers / principals, they would not be covered within the purview of term "employee"
defined under section 2(e) of the Act and therefore they would not be entitled for gratuity under the Act and their claim for gratuity would not be maintainable before the authority under the act.
4.2 The petitioner institute would also contend that the Act 47 of 2009 came to be amended and by virtue of Act 47 of 2009 and amended definition of the term "employee" was made effective retrospectively from 03.04.1997. Therefore the claimant would come within the purview of said "term" only w.e.f. 03.04.1997 and that therefore their claim for gratuity Page 3 of 20 HC-NIC Page 3 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER for the period prior to 03.04.1997 would not be maintainable and it would not fall within the purview of the Act.
4.3 The petitioner also claimed that despite such position, concerned claimants, upon retirement from service, filed claim applications for gratuity before the Controlling Authority under the act. The said application came to be registered as Gratuity Claim Application 369 of 2012 to Gratuity Application 376 of 2012 and 417 of 2012 and 16 of 2012.
4.4 The Controlling Authority adjudicated the application and held that the claimants are entitled for gratuity from the date of joining until the date of retirement.
4.5 Having reached such conclusion, the Controlling Authority calculated the amount payable to each claimant towards gratuity and passed common order dated 31.05.2013 in respect of the Applications No. 369 of 2012 to 376 of 2012 and 417 of 2012 and 16 of 2012.
4.6 The Controlling Authority also directed the petitioner to pay unpaid or short paid gratuity with interest @ 10%, Page 4 of 20 HC-NIC Page 4 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER to be calculated from 14th February, 2006. 4.7 Feeling aggrieved by the said direction, petitioner filed appeal before the Appellate Authority. The Appellate Authority heard the parties and rejected the appeals and confirmed the order dated 31.05.2013 passed by the Controlling Authority.
5. Feeling aggrieved by the said orders by Controlling Authority and Appellate Authority, the petitioner has taken out this group of petitions.
6. Mr. Patel, learned counsel for the petitioner vehemently assailed orders passed by the Controlling Authority and Appellate Authority and submitted that authorities failed to appreciate that in view of the definition of termed employees under Section2(e) of the Act the claimants could not have been considered "employee" and their claim therefore could not have been considered for the period prior to 03.04.1997 and at the most they would be entitled to claim gratuity only for the period of service after Page 5 of 20 HC-NIC Page 5 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER 03.04.1997. The petitioner also claimed that since it is grantinaid institute, if at all any amount becomes payable as gratuity, it would be payable by the State Government and direction could not have been passed against the petitioner institute. Learned counsel for the petitioner reiterated the contentions raised in petition at Paras3A to 3C.
7. Mr. Pandya, learned counsel for opponent i.e. original claimant opposed the submission by learned advocate, Mr. Patel. Mr. Pandya submitted that orders passed by Controlling Authority and Appellate Authority are just legal and proper. The orders do not suffer from any infirmity. He submitted that in view of definition of the term "employee", the claimants are covered within the purview of said term and their claim for gratuity could not have been denied. He submitted that the petitioner denied their claim arbitrarily and without justification and therefore claimants were constrained to approach the authority and authority has not committed any error in the conclusion Page 6 of 20 HC-NIC Page 6 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER that claimants are entitled for gratuity for entire period of service. He submitted that in light of concurrent orders of both the authorities, petition may not be entertained.
8. I have considered rival contentions by the learned advocate for the petitioner and the respondents. So far as, learned Assistant Government Pleader is concerned, he has taken noncommittal and convenient stand to submit that court may pass appropriate order. He, however, submitted that even if, the claimants are held entitled to gratuity for entire period of service or for period after April, 1997, in either case the obligation to pay gratuity will be of the institute and not of Government. I have also considered material available on record and impugned orders passed by the Controlling Authority and Appellate Authority.
9. At the out set, it is necessary to mention that any objection against maintainability of the application and / or against the orders are not raised on Page 7 of 20 HC-NIC Page 7 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER the ground of delay. Even in the petition, the petitioner has not raised any objection on the ground that the claim applications were not filed within time limit prescribed under the Act. Even during hearing of petitions, learned counsel has not assailed the judgment on the ground of delay.
10. So far as factual backdrop is concerned, it has emerged that relevant details viz date of appointment of the claimants, date of retirement from service total length of service, average salary per day, and designation of claimants are not in dispute. It is also not in dispute that the employer is education institute and that the claimants were working as academic staff i.e. teachers / principal. It is also not in disputed that upon retirement from service the claimants demanded gratuity for entire tenure of service. The claim was declined by the petitioner. Therefore, they filed gratuity claim application which are allowed by the Authority.
11. So as to consider rival submission and Page 8 of 20 HC-NIC Page 8 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER to decide the contentions raised in Para 3A to 3B and more particularly Para 3B and 3C, it is necessary and appropriate to take into account some relevant provisions amendments in respect of the term "employee" defined under section 2(e) of the Act. This Court has considered the said issue and the above mentioned submissions (related to the said issue) in Special Civil Application No. 2902 of 2013. After considering relevant aspects and said submissions, it is observed and held in the said decision that, 14.1 The controversy between the parties has arisen in view of the definition of the term 'employee' under section 2(e) of the Act and also on account of the term "establishment".
14.2 Actually the term "establishment" gave rise to the controversy as to whether "schools" would come within the purview of the term "establishment" or not.
15. So as to put at rest the said controversy appropriate government issued a notification F.No.S42013/1/95SSII dated 3rd April 1997 in exercise of power under section 1(3)(c) of the Act which gave quietus to said controversy and it expressly provided that the Act would be applicable to the schools / education institutions. The said Notification reads thus: "In exercise of the powers conferred by clause (c) of subsection (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies the educational institutions in which ten or more persons are employed, or were employed, on any day of the preceding 12 months, as a class of establishments to which the said act shall apply with effect from the date of publication of this notification. Provided that nothing contained in this notification Page 9 of 20 HC-NIC Page 9 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER shall affect the operation of the Notification of the Ministry of Labour, No. S.O. 239, dated 8th January, 1982"
16. However, the said amendment / notification and the decision gave rise to another controversy or dispute viz. though the act is applicable to schools / education institutions, in absence of any corresponding amendment in the definition of the term "employee", "teachers" would not be entitled for gratuity payable under the Act because "teacher" would not come within the purview of Section 2(e) i.e. the definition of "employee" which existed before 3.4.1997.
16.1 In this context, it is relevant to note that after the Act came into force on 16.9.1972, section 2(e) was amended by virtue of Amendment Act No.25 of 1984 with effect from 1.7.1984. Thereafter the said definition, i.e. section 2(e) came to be amended by Act No.34 of 1994 with effect from 24.5.1994. The definition of the term 'employee', i.e. under Section 2(e) which came into force from 24.5.1994 (before 3.4.1997) reads thus:
"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, semiskilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are 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 post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity]"
16.2 The said controversy with reference to the term "employee" and "teacher" was considered by this Court in case of S.L. Christian vs. Administrative Officer 2001 (2) GLH 389. In the said decision the Court considered above quoted definition of the term employee under Section 2(e) of the Act and held that the teachers cannot be considered employees for the purpose of Payment of Gratuity Act. Same issue was thereafter considered by Hon'ble Apex Court in case of Ahmedabad Pvt. Primary Teachers' Assn. vs. Administrative Officer and others (2004) 1 SCC 755. In the said decision Hon'ble Apex Court observed, inter alia, that:
23. ........
Page 10 of 20HC-NIC Page 10 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER
24. The contention advanced that teachers should be treated as included in expression 'unskilled' or skilled' cannot. therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a 'skilled employee'. Such adjective generally is used for employee doing manual or technical work. Similarly, the words 'semi skilled' and 'unskilled' are not understood in educational establishments a describing nature of job of untrained teachers. We do not attach much importance lo the arguments advanced on the question as to whether 'skilled', 'semiskilled' and 'unskilled' qualify the words 'manual", 'supervisory', 'technical, or 'clerical' or the above words qualify the word 'work', liven if all the words are read disjunctively or in any other manner, (rained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause, framed or untrained teachers are not 'skilled', 'semiskilled', 'unskilled', 'manual', "supervisory", 'technical" or 'clerical' employees. They are also not employed in 'managerial' or 'administrative' capacity. Occasional!}, 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 emploved in "managerial" or 'administrative' capacity. The teachers are clearly not intended to be covered by the definition of "employee".
25. The Legislature was alive to various kinds of definitions of word 'employee' contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of 'employee' all kinds of employees, it could have as well used such wide language as is contained in section 2(1) of the Employees' Provident Funds Act, 1952 which defines 'employee to mean 'any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of [an establishment ...........Nonuse of such wide language in definition of 'emplovee' in section 2(e) of the Act of l972 reinforces our conclusion that teachers are clearly not covered in the definition."
16.3 It is pertinent to mention that even after holding and declaring that teachers are not intended to be covered by the definition of employee under Section 2(e) of Gratuity Act, Hon'ble Apex Court observed that:
26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide."
Page 11 of 20HC-NIC Page 11 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER 16.4 In this backdrop, particularly in light of the observations by Apex Court, more particularly the observations that "It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard" the Act was further amended in 2009 (by Act of 47 of 2009 which was published in gazette on 31.12.2009) and the definition of the term employee came to be amended thereby w.e.f. 3.4.1997. The amended definition reads thus: ""employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company shop or other establishment to which this Act applies, 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 rules providing for payment of gratuity]"
16.5 So as to remove any doubt or anomaly the Central Government, vide said Amendment Act No. 47 of 2009 also clarified that the amendment in Section 2(e) of the Act shall be effective retrospectively i.e. from 3.4.1997. The relevant provision which conferred retrospective effect to the amendment in Section 2(e) of the Act reads thus: "13A Validation of payment of gratuity Notwithstanding anything contained in any judgment, decree or order of any court, for the period commencing on and from the 3rd day of April, 1997 and ending on the day on which the Payment of Gratuity (Amendment) Act, 2009, receives the assent of the President, the gratuity shall be payable to an employee in pursuance of the notification of the Government of India in this Ministry of Labour and Employment vide Number S.O. 1080, dated 3rd day of April, 1997 and the said notification shall be valid and shall be deemed always to have been valid as if the Payment of Gratuity (Amendment) Act, 2009 had been in force at all material times and the gratuity shall be payable accordingly. Provided that nothing contained in this section shall extend, or be construed to extend, to affect any person with any punishment or penalty whatsoever by reason of the nonpayment by him of the gratuity during the period specified in this section which shall become due in pursuance of the said notification"
17. Thus, by virtue of the said amendment "teacher" stand covered under the term "employee".
18. The said amendment of 2009 gave quietus to the dispute Page 12 of 20 HC-NIC Page 12 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER with regard to definition of the term "employee". The said amended definition takes in its fold "teachers". Now it is not disputed even by the petitioner that "teacher" is covered within the purview of "employee". The said aspect is now beyond shadow of doubt.
19. Now the dispute essentially revolves around the date from which the teacher can claim gratuity and total period for which teacher can claim gratuity.
20. In this background above mentioned objections are again pressed in service by the employer.
21. In this view of the matter it is appropriate to turn to Section 4 of the Act, particularly section 4(1) and 4(2) of the Act. The said Section 4(1) and Section 4(2) read thus: 4 Payment of gratuity. --
(1) Gratuity shall be payable to an employee on the termination of his employment after he 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 service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: 13 [Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation .-- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.
(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piecerated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of 14 [an employee who is employed in a seasonal establishment and who is not so employed throughout the year], the employer Page 13 of 20 HC-NIC Page 13 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER shall pay the gratuity at the rate of seven days' wages for each season. 15 [ Explanation. --In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twentysix and multiplying the quotient by fifteen.] 21.1 Subsection (1) of Section 4 prescribes events on occurrence of which and the circumstances in which an employee shall be paid gratuity. According to said Section 4 (1) an "employee"
would be entitled for gratuity and the employer would be obliged to pay gratuity to an "employee" when his service comes to end by any of the modes mentioned under Clause (a) to (c) of Section 4(1) of the Act, after rendering service for five years (except in case where the cessation of service is on account of death or disablement) in an establishment, undertaking etc. covered under section 1(3) of the Act. Subsection (2) of Section 4 prescribes that to an employee who is entitled for gratuity under Section 4(1) his employer shall pay gratuity for every completed year of service (or part thereof in excess of 6 months) at the rate and in accordance with formula prescribes under the Act. According to conjoint reading of Section 4(1) and (2) it emerges that on compliance of the conditions prescribed under Section 4(1) the employee would be entitled for gratuity at prescribed rate for every completed year of service.
21.2 In this context, it is pertinent to note that according to the scheme of the Act, more particularly in light of Sections 4(1) and 4(2), for determining the position with regard to relevant factors the "relevant date" would be the date on which service of concerned employee comes to end (by any of the modes mentioned under Section 4(1) of the Act) inasmuch as the position as regards all relevant aspects must be examined as on the date employee's service come to end.
21.3 In this context it is relevant to note that according to section 4 read with section 7 of the Act, for determining employee's eligibility for gratuity, the position as regards relevant factors and criterion viz. as to (a) whether the claimant is an "employee" within the term of Section 2(e) or not; and (b) whether claimant's service came end on superannuation or retirement or resignation (or on account of death or disablement) or whether claimant's service came Page 14 of 20 HC-NIC Page 14 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER to end on any other ground e.g. dismissal / disciplinary action; and
(c) as to whether concerned employee has completed service of 5 years or not; and (d) what is total tenure of the service of the concerned employee, and what was the salary last drawn by the concerned employee, which exist (with regard to said aspects) as on the date when employee's service comes to end, should be taken into consideration. Therefore the said date would be the relevant date for all practical purposes including the purpose of determining entitlement for gratuity as well as for quantification of gratuity. The position with regard to the said aspect which obtain on any other day would not be relevant and cannot be taken into consideration.
21.4 The moment it is established that on the date when claimant's service came to end (by any of the modes mentioned under Section 4(1) of the Act) the claimant fulfilled all eligibility criteria viz. (i) that claimant was "employee" within purview of Section 2(e) of the Act as on relevant date i.e. when claimant's service came to end; and (ii) that claimant had completed minimum 5 years of service when claimant's service came to end; and (c) claimant's last drawn salary was within prescribed limit, then claimant would be entitled for gratuity in accordance with the formula prescribed under Subsection (2) of Section 4 i.e. 15 days salary for every completed year of service.
21.5 The relevant and important aspect is that in such event (i.e. when claimant is found to be eligible and entitled for gratuity) said person would be entitled for gratuity "for every completed year"
of his/her service i.e. for his/her entire service as provided for under Sub Section (2) of Section 4. This aspect emerges clearly from Subsection (2) which prescribes that the person who fulfills prescribed eligibility criteria and in whose case the compliance is established as on relevant date (i.e. the date on which service comes to an end) will be entitled for gratuity for every completed year of service (or part thereof in excess of 6 months).
21.6 Therefore, if on relevant date the applicant fulfills all conditions and criteria prescribed by Section 4(1), the employer cannot refuse to pay gratuity for every completed year of service.Page 15 of 20
HC-NIC Page 15 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER
22. Consequently, the petitioners' contention that (a) though on relevant date total service of the claimant is more than 5 years; and (b) though on relevant date i.e. on the date of superannuation or retirement or resignation etc. the claimant / teacher is employee (within the meaning of the term under Section 2(e) of the Act) claimant would not be entitled for gratuity in respect of period of service rendered before 3.4.1997, is not sustainable. Likewise the petitioner's contention that those teachers whose service came to end before completion of 5 years after 3.4.1997 will not be entitled for gratuity, is also not sustainable. Even the contention that those teachers whose service came to end more than 5 years after 3.4.1997 would be entitled for gratuity only for the period of service after 3.4.1997 is not sustainable.
22.1 The said contentions militate against scheme of the Act. The said contention is also contrary to subsection (2) of Section 4 of the Act.
22.2 If the contentions raised by the petitioner - employer were to be entertained then it would lead to a position wherein a person (a teacher) who would have retired, on superannuation, in the year 2000, after completing service of 30 years, will not be entitled for gratuity only on the ground that he did not complete 5 years of service after April 1997. On the other hand if a person (teacher) retired on 15.4.2002 after rendering / completing service of 30 years then he would be entitled for gratuity only for 5 years i.e. from 3.4.1997 to 15.4.2002.
22.3 The petitioners' contention translates into such situation which runes counter to and militates with the scheme of the Act more particularly Section 4(2) of the Act.
22.4 The said contention, if entertained and if it were to be accepted, would render subsection (2) of Section 4 - and more particularly the words "for every completed year of service", otiose and redundant.
Page 16 of 20HC-NIC Page 16 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER 22.5 None of the provisions under the Act, more particularly after the amendment in the Act, (which gives retrospective effect to the amendment in Section 2(e) of the Act) provide or contemplate that though concerned employee / claimant fulfills all eligibility criteria and is entitled for gratuity, the tenure / period of claimant's past service (i.e. service prior to 3.4.1997) should not be considered and should not be taken into account for determining eligibility and entitlement of the teacher and / or that such service should not be taken into account for computation of gratuity. The petitioner's contentions and objections do not get support from any provision under the Act. On the contrary Sections 4(1) and 4(2) demolish the objections. The petitioner's contentions are not in tune with the scheme of the Act.
22.6 Such result and consequences are not contemplated by the Scheme of the Act. Further, in light of the Amendment Act 2009, more particularly after insertion of Section 13(A) in the Act, the contention cannot be accepted.
22.7 Further, acceptance of the employer's contention would artificially postpone the implementation and effect of the amendment (in Section 2(e) of the Act) by 5 years.
22.8 Besides this it would also wipe out entire service of concerned teacher prior to 3.4.1997, despite the fact that Subsection (2) of Section 4 of the Act clearly provides that on cessation of service (by any mode provided under Section 4(1) of the Act) an eligible employee would be entitled for gratuity for every completed year of service i.e. for total number of years of service put in / completed by the employee as on the date when his service comes to an end.
22.9 The said contention would lead not only to anomaly but also to absurd result and consequence which would militate against the object of the Amendment Act and Scheme of the Act and will also frustrate the purpose of the Amendment Act. The intention of the legislature which emerges from Sections 4(1) and 4(2) read with the amendment of Section 2(e) and Section 13(A) of the Act is very Page 17 of 20 HC-NIC Page 17 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER clear and does not permit the Court to accept the contention urged by the employer.
22.10 The Act provides that on compliance of and on fulfillment of other eligibility criteria, the employee should be paid gratuity for every completed year of service. The said crucial expression in Subsection (2) of Section 4 of the Act cannot be overlooked and cannot be allowed to be diluted or clouded and cannot be allowed to be rendered nugatory.
22.11 For all these reasons the contentions by the petitioner employer cannot be sustained.
23. The petitioner's objection translates into the contention that (a) though the service of the claimant in present case came to an end on account of superannuation or retirement or resignation after 3.4.1997; and (b) though as on relevant date total length of service of the claimant was more than 5 years; and (C) though on the date of superannuation or retirement or resignation, the claimant was covered within the said term 'employee', claimant would not be entitled for gratuity or claimant would not be entitled for gratuity for the period prior to 1997, or that claimant would be entitled for gratuity only for period of service after 3.4.1997 provided claimant worked for 5 years or more after 3.4.1997 because claimant did not complete five years of service after April 1997 and / or because "teacher" came to be included in Section 2(e) of the Act w.e.f. 3.4.1997. Under the circumstances and in light of the forgoing discussion, more particularly in light of amendment introduced by virtue of Amendment Act 2009 and in light of plain reading and construction of Section 4 (1) and 4 (2) of the Act the petitioner's said contentions cannot be sustained. The said contention is, therefore rejected.
24. From the foregoing discussion and for the reasons mentioned above final position can be summarized thus:
(a) the teachers whose service came to end before 3.4.1997, would not be entitled for gratuity under the Act and the Page 18 of 20 HC-NIC Page 18 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER applications by such teachers (who retired from 3.4.1997) would not be maintainable.
(b) the teachers who retired from service after 3.4.1997 and total tenure of whose service is of 5 years or more would be entitled for gratuity under the Act for entire tenure of their service and the payment and/or entitlement for gratuity cannot be restricted to the period after 1997.
(c ) the teachers whose services came to an end after 3.4.1997 by any of the modes mentioned under section 4(1) of the Act before completion of 5 years after 3.4.1997, would also be entitled for gratuity for their entire service, provided total length of their services on the date of retirement / superannuation / resignation was not less than 5 years. Further, such teachers would be entitled for gratuity for entire tenure as on date of superannuation / resignation / retirement.
(d) the teachers whose services came to an end by any of the modes prescribed under section 4(1) of the Act after completing services of 5 years or more after 3.4.1997 would also be entitled for gratuity and that they would be entitled for gratuity for entire tenure of service as on date of retirement / superannuation and their claim cannot be restricted to the period of service after 3.4.1997.
12. In light of foregoing discussion and for the reasons mentioned above, the challenge against impugned orders 31.05.2013 and 07.03.2014 are not sustainable and do not deserve to be entertained. The final decision by Controlling Authority, which is confirmed by Appellate Authority, cannot be faulted.
13. In view of the fact that the relevant details namely, date of joining, date of Page 19 of 20 HC-NIC Page 19 of 20 Created On Fri Aug 18 14:29:30 IST 2017 C/SCA/9815/2014 ORDER retirement, total length of service and per day average salary are not disputed, it follows that quantification of the amount as finalised by Controlling Authority vide impugned orders, does not warrant any interference.
14. Consequently, captioned petitions fail. Petitions deserve to be dismissed and the same are hereby rejected. Rule is discharged.
(K.M.THAKER, J.) Nabila Page 20 of 20 HC-NIC Page 20 of 20 Created On Fri Aug 18 14:29:30 IST 2017