Patna High Court
Ved Prakash Pathak Nirala vs State Of Bihar And Ors. on 3 September, 1998
Equivalent citations: [1999(82)FLR506], (1999)IILLJ1420PAT
Author: A.K. Ganguly
Bench: A.K. Ganguly
ORDER A.K. Ganguly, J.
1. This writ petition has been filed challenging, inter alia, the order passed by the Joint Commissioner of Labour dated July 3, 1989 in G.A. Appeal No. 2/G.A.-1032 of 1988. The said appellate authority has been pleased to set aside the order dated April 25, 1988 passed by the Controlling Authority under the Payment of Gratuity Act.
2. The factual aspect of the case is stated hereinbelow:
The petitioner Ved Prakash Pathak Nirala filed this application under the Payment of Gratuity Act for payment of gratuity amounting to Rs. 14215-33 paise on the basis of his continuous service from January 1, 1963 till January 1, 1985 as an employee of the School, namely, Shri Hanuman Madhya Vidhayalaya, Motihari (hereinafter referred to as the said School). The petitioner's case is that he submitted application under Rule 7(1) of the Rules framed under the Payment of Gratuity Act and demanded payment of gratuity, but no attention has been given by the authorities to determine the gratuity or for payment of the same.
3. On such application a show cause was filed on behalf of the School authorities, and in the said show cause the case of the school authorities was that the School was managed by a separate Managing Committee, and the payment of salary, and service conditions were all regulated by the rules framed by the Managing Committee. The school had its own provident fund scheme managed by its own Committee and it was a separate establishment which was in no way connected with the Sugar Factory. It has also been stated that the writ petitioner is an employee of the School and not of the Sugar Factory. The said School was run by the Committee on philanthropic and Missionary motive to impart education to the children in general. No tuition fee was charged, and the school was not run on any profit basis.
4. On such application filed by the petitioner and on the show cause filed by the School authorities, the Controlling Authority allowed the claim of the writ petitioner, and directed for payment of Rs. 8583.75 paise to the petitioner by way of gratuity. Against the aforesaid, the appeal was filed.
5. From a perusal of the order of the appellate authority, it appears that the appellate authority relying on the decision of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa reported in (1978-I-LLJ-349) (SC) came to the conclusion that the teacher is not a workman. This Court also finds that in this aspect of the matter, the finding of the appellate Court is not erroneous. In fact, the question whether teacher is a workman or not has been left open in the , decision of the Supreme Court in the case of Bangalore Water Supply (supra). But subsequently, in the decision of the Supreme Court in the case of Ms. A, Sundarambal v. Government of Goa, Daman and Diu, reported in (1989-I-LLJ-61) (SC) has been decided after considering the Constitutional Bench judgment in case of Bangalore Water Supply (supra) that the teacher employed in a school does not fall within the definition of a workman. It is, therefore, held that even when the teacher's services were terminated it cannot be referred under Section 10 of the Act.
The reasons for the said decision are that the job of the teacher is for imparting education. Such job cannot be considered as skilled or unskilled, manual, supervisory, technical or clerical work. It has been held that imparting education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do is only incidental to their principal work of teaching. As such it has been categorically held that the teacher is not a workman. In view of this categorical finding of the Supreme Gourt, it is not possible for this Court to hold that the petitioner is a workman.
6. The definition of an 'employee' given in Section 2(e) of the Payment of Gratuity Act, 1972 (hereinafter called as the said Act) is identical with the definition of 'workman given in Section 2(s) of the Industrial Disputes Act.
7. Considering the said two decisions, the appellate authority has held that the teacher cannot be called as Workman for the reasons mentioned above. Similarly, the teacher cannot be called an employee because he is not doing any work which can be called as skilled, unskilled, manual work, supervisory work, technical worker clerical work. For the aforesaid reason, if a teacher is not an employee, in that case he is not entitled for payment of gratuity under the said Act. Under Section 4 of the Act, which is the governing section, it has been said that the gratuity shall be payable to an employee. But if the teacher, in view of the aforesaid decision of the Supreme Court in the case of Ms. A. Sundarambal (supra) is not a workman he also cannot claim that he is an employee under the said Act. As such he does not come under the purview of Section 4 of the Act.
8. Relying on the decision in Sundarambal's case, subsequently in case of Haryana Unrecognised Schools Association v. State of Haryana, reported in (1996-II-LLJ -639) the Apex Court again held that a teacher, having regard to the nature of his job performed, cannot be held to be an employee even under Section 2(1) of the Minimum Wages Act and that of employee under the Payment of Gratuity Act has a very close resemblance. So this recent decision of the Apex Court also supports the view of the appellate authority.
9. In this connection reference may be made to the discussion made by the appellate authority in para 21 of the impugned order. Para 21 of the said impugned order is set out below: -
"Shri K.N. Gupta has drawn my attention to the oral evidence of opposite party witness No. 1. The witness has stated that the teacher was not performing any duty in the nature of skilled, semiskilled, unskilled, manual, clerical or technical etc. He has also said that the teacher was also not doing any supervisory work. There is no cross-examination of this witness on this point. My attention has also been drawn on oral and documentary evidence led on behalf of appellant-respondent. None of the witnesses including the appellant himself have said that the teacher was performing the duties which were primarily skilled, unskilled, semi skilled, manual, clerical, operational, technical etc. It was for the applicant to satisfy that he was an employee under Section 2(e) of the Payment of Gratuity Act. I find there is no such evidence."
10. Learned counsel for the writ petitioner has not been able to point out before me why the aforesaid finding of the appellate Court is not correct. So, this Court cannot hold that there is any manifest error in the conclusion of the appellate authority. Since, the petitioner as a teacher cannot come within the purview of an employee under Section 2(e) of the Act, as such on the basis of the admitted evidence in this case, he is not entitled to make any claim for gratuity. This Court has not, of course, considered the question whether the said school is an Industry or not. The said question need not be decided for the purpose of the decision in this case.
11. In that view of the matter, this Court refuses to interfere with the impugned order passed by the appellate authority. This writ petition is therefore dismissed.