University Of Delhi vs Sh. Tahel Ram Bellani And Ors.
2015 Latest Caselaw 1992 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 2282/2015
%                        Judgement pronounced on: 09.03.2015

      UNIVERSITY OF DELHI                            ... Petitioner
                    Through: Mr Girindra Kumar Pathak, Adv.

                         Versus

    SH. TAHEL RAM BELLANI AND ORS.             .......Respondents
                  Through: Ms.Amrita Prakash, Advocate for R-
                  3&4.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)

CM No. 4088/2015 (Exemption)

Allowed, subject to just exceptions.

The application stands disposed of.

W.P.(C) 2282/2015 and CM No. 4087/2015 (stay)

1. Heard.

2. The present writ petition has been filed by the petitioner challenging

the order of the Controlling Authority dated 18.03.2014 under The Payment

of Gratuity Act, 1972 (hereinafter referred to as "the PG Act"), whereby the

petitioner was directed to pay the remaining gratuity along with simple

interest at the rate of 10% from the date it became payable till the date of

payment to the respondent and also against the order of the Appellate

Authority dated 03.09.2014, whereby the appeal filed by the petitioner

against the said order was dismissed.

3. Admitted facts are that respondent was in the employment of the

petitioner. He attained superannuation from his services. He was paid all the

dues. However, he sent a demand notice for payment of the deficient

gratuity and, thereafter, filed a claim before the Controlling Authority. The

petitioner had contested the matter before the Controlling Authority and

after completion of the trial, the Controlling Authority passed its order dated

18.03.2014. The contention of the petitioner before the Controlling

Authority was that the Payment of Gratuity Act, 1972 was not applicable to

the petitioner who is governed by the Statute framed under Delhi University

Act, 1922 and that the claim was barred by time and since the respondent

had accepted his gratuity calculated as per the Statute framed under Delhi

University Act, 1922 towards full and final settlement, without any protest,

he was barred from raising such demand. The other contention was that the

notification dated 03.04.1997 was not binding upon the petitioner as it is a

statutory institution distinguishable from other educational institutions. The

other contention was that the respondent was not an employee under Section

2(e) of the PG Act and that Section 14 of the said Act could not be construed

to override all enactments. All these contentions of the petitioner were dealt

with by the Controlling Authority and it gave its finding vide its order dated

18.03.2014. This order of the Controlling Authority was also confirmed by

the Appellate Authority.

4. Before this Court, the petitioner has again raised the same issues. It

has contended that the findings are bad because petitioner is an autonomous

body governed by the Statute 28A of Delhi University Act, 1922 for the

purpose of gratuity and provisions of PG Act were not applicable on it. Also,

that the demand of the respondent for the gratuity was highly belated. He

retired in the year 2005 and raised the demand before Controlling Authority

in the year 2013. It is also contended before this Court that the respondent is

not an employee under Section 2(e) of the PG Act since this definition does

not include any such person who holds a post under Central

Government/State Government and is governed by acts or rules provided

under the PG Act and since the petitioner has its own rules providing for

payment of gratuity, PG Act is not applicable. Also, that the petitioner has

already taken up the matter with Government of India seeking exemption

under sub-section (2) of Section 5 of PG Act and the matter is still pending

for disposal before the concerned authorities. It is also contended that the

notification dated 03.04.1997 extending the provisions of PG Act to

educational institutions cannot be equated with the petitioner.

5. Careful consideration has been given to the arguments forwarded by

the learned counsel for the petitioner and the relevant provisions of law.

6. The admitted fact is that the petitioner is a statutory body. It is neither

a Central Government nor a State Government establishment. The PG Act

has come into effect on 21.08.1972 and this Act has an overriding effect

over the other enactments. Section 14 of the PG Act reads as under:-

"14. Act to override other enactments, etc.-- The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act."

7. There is also no dispute to the fact that pursuant to the Notification

S.O. 1080 dated 03.04.1997 of the Central Government, the provisions of

PG Act was extended to the educational institutions employing ten or more

persons. It is not contended by the petitioner that they are employing less

than 10 persons in their institution. Thus, by virtue of this notification dated

03.04.1997, all the educational institutions come under the purview of PG

Act. This factual position has been accepted by the petitioner which is

apparent from their act of taking up the matter with the Government of India

seeking exemption under sub-section (2) of Section 5 of PG Act which is

still pending for disposal. Under Section 5 of the PG Act, the appropriate

Government has the power to exempt from the operation of the provisions of

PG Act any establishment, factory, mine, etc. by a notification. Admittedly,

no such notification has been passed by the appropriate Government under

Section 5(2) of the PG Act.

8. Thus, the Act being binding upon the petitioner, the petitioner was

duty bound to pay the gratuity to be calculated as per the provisions of PG

Act to its employees. Section 7(2) of PG Act cast the duty on the employer

to determine the amount of gratuity and pay the same whether or not any

application demanding the same has been made. Thus, non-payment of the

gratuity by the employer amounts to continuing offence which continued till

the said gratuity is paid and it cannot be said that the demand of the

employee was barred by time.

9. Also admittedly, the petitioner is an autonomous body and is neither a

Central Government nor a State Government body. It does not matter that it

has its own rules and regulations relating to the grant of gratuity. After the

passing of the PG Act and the notification dated 03.04.1997, the petitioner is

duty bound to pay the gratuity to its employees under PG Act. The definition

of employee under Section 2(e) does not help the petitioner in any way

because it only exempts the employees of the Central Government and

Central Government who are governed by any other Act regarding payment

of gratuity. Since the employees of the petitioner are not considered either

the Central Government or a State Government employee, they do not fall

within the exempted category of the definition of an employee under Section

2(e) of the PG Act.

10. The findings of the Controlling Authority as well as the Appellate

Authority are in consonance with the settled principle of law, as discussed

above and do not suffer from any infirmity. There is also no error on the

face of the orders.

11. It is a settled principle of law that this Court can interfere with the

order of an inferior court only when there is an error of law of such a nature

which is apparent on the face of the record. Where the conclusion of the law

recorded by inferior court is based on obvious misinterpretation of the

relevant statutory provisions or ignorance of it or in disregard of it or

founded on reasons which are wrong in law, the said conclusion can be

corrected by writ. In the present case, the petitioner has failed to point out

any error on the face of the record or that the Controlling Authority and the

Appellate Authority has wrongly construed the law or has ignored any law. I

find no reason to interfere with the findings of the Controlling Authority and

the Appellate Authority. The writ petition has no merit and the same is

dismissed with no order as to costs.

CM No.4087/2015 also stands dismissed.

DEEPA SHARMA (JUDGE) MARCH 09, 2015 bg