Delhi High Court
Mansa Ram vs Mcd on 31 July, 2007
Bench: C.J., S Khanna
ORDER
1. We have heard the learned Counsel for the appellant on this appeal which is directed against the order dated 7th July, 2006 passed by the learned Single Judge allowing the writ petition of the respondent.
2. By the aforesaid judgment, the learned Single Judge has held that the Head Master/Head Mistress and teachers in the MCD schools who have now retired from service would not be entitled to receive payment under the Payment of Gratuity Act.
3. Learned Counsel for the appellant has drawn our attention to a decision of Chhattisgarh High Court in Administrator, Lahidhi Multipurpose H.S.S. v. V. Chaturvedi (Smt.) 2006-II-LLJ 872. Relying on the said decision, the learned Counsel for the appellant submits that the findings arrived at by the learned Single Judge are contrary to law. We are however, unable to accept the aforesaid contention of the learned Counsel for the appellant. The aforesaid submission has to be examined in the light of the definition of an "employee" under Section 2(e) of the Act. In Ahmedabad Pvt. Primary Teachers' Association v. Administrative Officer and Ors. Reported in , the Supreme Court has held that on plain construction of the words and expression used in the definition clause 2(e) of the Act, 'teachers' who are mainly employed for imparting education are not covered and are not entitled to gratuity benefits under the Act. Teachers do not answer description of being employees who are 'skilled', 'semi-skilled' or 'unskilled'. These three words used in association with each other intend to convey that a person who is 'unskilled' is one who is not 'skilled' and a person who is 'semi-skilled' may be one who falls between the two categories, meaning he is neither fully skilled nor unskilled. Thus teachers are not covered by Payment of Gratuity Act.
4. Para 24 of the said judgment, which is relevant for our purpose reads as under:
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 teachers 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 description 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'.
5. In Ram Kanwar Dahiya v. MCD, a similar question fell for our consideration. Vide our order and judgment dated 16.1.2007, we held that Head Masters/Head Mistress is a term equivalent to and means 'Head Teacher', which is a principal teacher in charge of the school. We also held that Head Master/Head Mistress continues to be a teacher, who in addition to the primary work of teaching students, also performs some administrative work. The dominant and basic work of Headmaster/Head Mistress is to teach and impart education and in addition they also discharge some administrative work.
6. In our considered opinion, the ratio of the aforesaid decision is squarely applicable of the facts of the present case. We have given our basic reasons for coming to the aforesaid conclusion. In the aforesaid judgment, we would like to extract paragraphs 10,11,12 and 13 of the said judgment, which reads as under:
10. It was also held that if all employees were to be covered under the Payment of Gratuity Act, it was not necessary for the legislature to mention specific categories in the definition clause.
11. The term "teacher" under the Delhi School Education Act, 1973, has been defined in Section 2(w), to include Head of the Institution, Function and role of the Headmaster/ Head Mistress has been examined in depth and detail by the learned single judge. Headmaster and Head Mistress is a term equivalent to and means "Head teacher" as defined in Chamber's 21st Century dictionary. It means the principal teacher in charge of the school. Headmaster/Head Mistress continues to be a teacher, who in addition to the primary work of teaching students, also performs some administrative work. The dominant and basic work of Headmaster/Head Mistress is to teach and impart education.
12. The appellant herein as per the service rules has been paid gratuity. In addition he is also getting pension and has received other terminal benefits on retirements. These benefits are normally not available to persons to whom Payment of Gratuity Act applies.
13. Decision of Supreme Court in Municipal Corporation of Delhi v. Dharam Prakash Sharma and Anr. (supra) is on a different aspect. In the said decision it was held that the employees of the Municipal Corporation of Delhi are not employees of the State Government or employees of the Central Government and therefore the bar created by the words "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" is not applicable. However, in the present case the issue and the question involved is different. The question is whether a Head teacher is employed on wages to do any skilled, semi-skilled, unskilled work, normal, supervisory, technical, or clerical work. The appellant has not been denied the benefit of Payment of Gratuity Act because he was a Central or State Government employee but because he was not a "specified" employee as defined in the first part of the Section. The second part of Section 2(e) carves out an exception, when the first part of the section applies. In the present case when the appellant is unable to cross the first hurdle, the appeal must fail and the question whether or not he was a State or Central Government employee is meaningless.
7. In view of the above we find no reason to interfere with the order passed by the learned Single Judge.
8. It is brought to our notice by the learned Counsel for the respondent that notification is also issued by the Central Government exempting all the employees of the MCD including teachers/Headmaster/Head Mistress from applicability of the provisions of Payment of Gratuity Act. The said notification was issued on 22.7.2005.
9. The appeal has no merit and is dismissed accordingly.
