(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act Praying to call for Relevant records and set aside the Order, dated 5.2.2021 made in W.P. No.29277 of 2018 vide Annexure-A Passed by the learned Single Judge and to allow the Writ Petition as prayed for and etc.)
S.C. Sharma, J.
1. The Appellant-Siddhartha Institute of Technology before this Court has filed this present Writ Appeal being aggrieved by the order dated 5.2.2021 passed in W.P. No.29277/2018 (Siddhartha Institute of Technology v. Sri Somashekaraiah and one another).
2. The facts of the case reveal that the Respondent No.1-Employee was a Teacher serving in the Institute and after serving for 21 years was not granted Gratuity and he has approached the Controlling Authority under the Payment of Gratuity Act, 1972 (for short 'the Act'). Another important aspect of the case is that the present Appellant being aggrieved by the proceedings before the Competent Authority has approached this Court by filing a Writ Petition i.e., W.P. No.51033/2012 challenging the validity of the provisions of the Act and the Petition was dismissed on 3.8.2017 against which a Writ Appeal is preferred and there is no Interim Order granted by the Division Bench. Thereafter, the present Petition was preferred by the Institute in question challenging the Order, dated 28.5.2018 passed by the Controlling Authority and the learned Single Judge has dismissed the Writ Petition keeping in view the Judgment delivered by the Hon'ble Supreme Court in the case of Birla Institute of Technology v. State of Jharkhand, 2019 (2) LLN 6 (SC): 2019 (4) SCC 513.
3. In the aforesaid case, it has been held that the teachers are entitled for payment of Gratuity and Paragraphs 18 to 27 of the Judgment delivered by the Hon'ble Supreme Court reads as under:
“18. As mentioned above, the issue in question was subject-matter of the decision rendered in Ahmedabad Private Primary Teachers' Assn. v. Administrative Officer, 2004 (1) SCC 755: 2004 SCC (L&S) 306. This Court had examined the question in the light of the definition of the word”Employee“defined in Section 2(e) of the Act as it stood then. The definition reads as under: (SCC p. 758, Para 2)
”2.2. (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 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.“(Emphasis in original)
19. This is what was held in Paras 22 to 26 of the decision: Ahmedabad Private Primary Teachers' Assn. v. Administrative Officer, 2004 (1) SCC 755: 2004 SCC (L&S) 306, pp. 764-65):
”22. In construing the abovementioned three words, which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the Company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: “that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it”. [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.]
23. The word “unskilled” is opposite of the word “skilled” and the word “semi-skilled” seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word “unskilled” cannot, therefore, be understood dissociated from the word “skilled” and “semi-skilled” to read and construe it to include in it all categories of Employees irrespective of the nature of employment. If the legislature intended to cover all categories of Employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.
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 be 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 be covered by the definition of "Employee".
25. The legislature was alive to various kinds of definitions of the 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(f) 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 ...'. Non-use of such wide language in the definition of "Employee" in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.
26. Our conclusion should not be misunderstood that teachers although engaged in a 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." (Emphasis in original)
20. The decision rendered in Ahmedabad Private Primary Teachers' Assn. v. Administrative Officer, 2004 (1) SCC 755: 2004 SCC (L&S) 306, therefore, led Parliament to amend the definition of "Employee" as defined in Section 2(e) of the Payment of Gratuity Act by Amending Act 47 of 2009 on 31.12.2009 with retrospective effect from 3.4.1997.
21. It is clear from the Statement of Objects and Reasons of the Payment of Gratuity (Amendment) Bill, 2009 introduced in the Lok Sabha on 24.2.2009, which reads as under:
“Statement of Objects and Reasons
The Payment of Gratuity Act, 1972 provides for payment of Gratuity to Employees engaged in factories, Mines, oilfields, plantations, ports, railway Companies, shops or other establishment and for matters connected therewith or incidental thereto. Clause (c) of sub-section (3) of Section 1 of the said Act empowers the Central Government to apply the provisions of the said Act by Notification in the Official Gazette to such other establishments or class of establishments in which ten or more Employees are employed, or were employed, on any day preceding twelve months. Accordingly, the Central Government had extended the provisions of the said Act to the Educational institutions employing ten or more persons by Notification of the Government of India in the Ministry of Labour and Employment vide number S.O. 1080, dated 3.4.1997.
2. The Hon'ble Supreme Court in its Judgment in Ahmedabad Private Primary Teachers' Assn. v. Administrative Officer, 2004 (1) SCC 755: 2004 SCC (L&S) 306, had held that if it was extended to cover in the definition of 'Employee', all kind of Employees, it could have as well used such wide language as is contained in Clause (f) of Section 2 of the Employees' Provident Funds and Miscellaneous Provisions 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. It had been held that non-use of such wide language in the definition of 'Employee' under Clause (e) of Section 2 of the Payment of Gratuity Act, 1972 reinforces the conclusion that teachers are clearly not covered in the said definition.
3. Keeping in view the observations of the Hon'ble Supreme Court, it is proposed to widen the definition of 'Employee' under the said Act in order to extend the benefit of Gratuity to the teachers. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha on 26.11.2007 and same was referred to the Standing Committee on Labour which made certain recommendations. After examining those recommendations, it was decided to give effect to the amendment retrospectively with effect from 3.4.1997, the date on which the provisions of the said Act were made applicable to Educational institutions.
4. Accordingly, the Payment of Gratuity (Amendment) Bill, 2007 was withdrawn and a new Bill, namely, this Payment of Gratuity (Amendment) Bill, 2009 having retrospective effect was introduced in the Lok Sabha on 24.2.2009. However, due to dissolution of the Fourteenth Lok Sabha, the said Bill lapsed. In view of the above, it is considered necessary to bring the present Bill.
5. The Bill seeks to achieve the above objectives.
22. The definition of "Employee" as defined under Section 2(e) was accordingly amended with effect from 3.4.1997 retrospectively vide Payment of the Gratuity (Amendment) Act, 2009 (No.47 of 2009) published on 31.12.2009. The amended definition reads as under:
"2.(e) "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."
23. In the light of the amendment made in the definition of the word "Employee" as defined in Section 2(e) of the Act by Amending Act No.47 of 2009 with retrospective effect from 3.4.1997, the benefit of the Payment of Gratuity Act was also extended to the teachers from 3.4.1997.
24. The effect of the amendment made in the Payment of Gratuity Act vide Amending Act No.47 of 2009 on 31.12.2009 was two-fold. First, the law laid down by this Court in the case of Ahmedabad Pvt. Primary Teachers Association (supra) was no longer applicable against the teachers, as if not rendered, and Second, the teachers were held entitled to claim the amount of Gratuity under the Payment of Gratuity Act from their Employer with effect from 3.4.1997.
25. In our considered opinion, in the light of the amendment made in the Payment of Gratuity Act as detailed above, reliance placed by the learned Counsel appearing for the Appellant (Empl
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oyer) on the decision of Ahmedabad Pvt. Primary Teachers Association (supra) is wholly misplaced and does not help the Appellant in any manner. It has lost its binding effect. 26. Learned Counsel for the Appellant then urged that the constitutional validity of Amending Act No.47 of 2009 is under challenge in this Court in a Writ Petition, which is pending. Be that as it may, in our view, pendency of any Writ Petition by itself does not affect the constitutionality of the Amending Act, and nor does it affect the right of Respondent No.4 (teacher) in any manner in claiming Gratuity amount from the Appellant (Employer) under the Act. 27. It is only when the Court declares a Statute as being ultra vires the provisions of the Constitution then the question may arise to consider its effect on the rights of the parties and that would always depend upon the declaration rendered by the Court and the directions given in that case. Such is not the case here as of now." 4. In the light of the aforesaid Judgment, the learned Single Judge was justified in dismissing the Writ Petition as teachers are certainly entitled for payment of Gratuity. 5. This Court does not find any reason to interfere with the Order passed by the learned Single Judge. Writ Appeal is accordingly dismissed. No Order as to Costs. The pending Interlocutory Applications, if any, stand disposed of.