Delhi High Court
Mrs. Shashi Sharma And Ors. vs Doon Public School And Ors. on 21 May, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6868/2012
% 21st May, 2015
MRS. SHASHI SHARMA AND ORS. ..... Petitioners
Through: Mr. K.P.Gupta, Adv.
Versus
DOON PUBLIC SCHOOL AND ORS. ..... Respondents
Through: Mr. Rakesh Tiku, Sr. Adv. with Mr.
Manoj V. George and Mr. Aakarsh
Kamra, Advocates for Review
Petitioner/R-1
Ms. Purnima Maheshwari, Adv. and
Mr. D.K.Singh, Adv. for R-3,4 and 5
(DOE).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.8128/2015 (delay of 485 days)
For the reasons stated in the application, delay is condoned.
CM stands disposed of.
Review Petition No. 252/2015
1. This review petition is filed seeking review of the judgment
dated 13.11.2013 passed in W.P.(C) No.6868/2012. The writ petition was
filed by five petitioners who were teachers in the respondent
no.1/School/Doon Public School. The claim of the petitioners was
predicated on Section 10(1) of the Delhi School Education Act and Rules,
1973 (DSEAR, 1973) and which provision is specifically referred to in para
5 of the writ petition. Petitioners in the writ petition in terms of Section
10(1) of the DSEAR, 1973 sought various reliefs in the form of monetary
allowances/payments which have to be made to the petitioners as teachers of
the respondent no.1/School.
2. By the judgment dated 13.11.2013, the writ petition was
allowed holding that respondent no.1/School is liable to pay the monetary
emoluments including gratuity. Gratuity was held to be payable in view of
the decision in the case of Deepak Dua Vs. Directorate of Education and
Anr in W.P.(C) 7040/2011 decided on 10.4.2013.
3. After allowing the writ petition, with respect to calculations of
all the amounts claimed by the petitioners, since this was a detailed
administrative exercise with the requirement of looking into bulky records of
the respondent no.1/School, this task was specifically cast upon the Director
of Education in terms of paras 6 and 7 of the judgment dated 13.11.2013.
4. At this stage, I would like to refer to para 3 of the judgment
dated 13.11.2013 and especially the last line thereof, inasmuch as, the
arguments in the review petition only turn upon the aspect of liability of
payment of gratuity, what amount, what period, and how and which manner
the amounts of gratuity payable would be enforceable in favour of the
petitioners in the writ petition. Para 3 of the judgment reads as under:-
"3. With respect to entitlement of payment of gratuity to the
petitioners the issue is covered by the judgment passed by this Court
in the case of Deepak Dua Vs. Directorate of Education and Anr. in
WPC 7040/2011 decided on 10.4.2013 which states that Payment of
Gratuity Act, 1972 (hereinafter referred to as 'the Act') applies to
schools and all employees of schools have to get gratuity as per the
Act when their services with the school comes to an end. Gratuity
would be payable for the period of services and of the amounts as
stated in the Act." (underlining added)
5. A reading of the last line of para 3 makes it clear that gratuity
was held to be payable for the entire period of services of the petitioners, and
which periods of services have been reproduced in para 1 of the judgment
dated 13.11.2013. The period of services of the petitioners with the
respondent no.1/School can be broken up into two parts. First is up to the
date of applicability of the Payment of Gratuity Act, 1972 and second part
would be after the date of applicability of the Payment of Gratuity Act,
1972.
6. It is an undisputed fact, and a matter of legislative record, that
payment of gratuity under the 1972 Act with respect to educational
institutions is w.e.f 3.4.1997. Any doubt in this regard to the date of
applicability of the Payment of Gratuity Act, 1972 to educational institutions
was removed by Section 13A of the Payment of Gratuity Act, 1972 which
was brought in by Act 47 of 2009 with retrospective effect from 3.4.1997.
7. On behalf of the review petitioner, two aspects were addressed
before this Court. First aspect is the argument of lack of liability of the
review petitioner/respondent no.1/School for payment of gratuity prior to
3.4.1997 on the ground that there was no specific provision for payment of
gratuity to employees of schools in Delhi and Section 10(1) of the DSEAR,
1973 should not be read as fastening liability or creating liability on the
schools in Delhi for payment of gratuity prior to 3.4.1997. Post 3.4.1997, i.e
post applicability of the Payment of Gratuity Act 1972, it is argued that the
amount of gratuity which would be calculated by the Director of Education
pursuant to the judgment of this Court dated 13.11.2013 should necessarily
be held not to be final in view of Section 7 of the Payment of Gratuity Act,
1972 and which provides the entire mechanism including stating that which
is the competent authority which finally decides what is the amount which
would be payable to a person in terms of the said 1972 Act.
8. So far as the first argument urged on behalf of the review
petitioner/respondent no.1/School is concerned, that prior to 3.4.1997 when
the 1972 Act became applicable the employees of schools should not get
gratuity, this argument would merit rejection at the threshold itself in view
of the categorical and direct language of Section 10(1) of the DSEAR, 1973.
This provision in so many words provides that employees of private schools,
whether aided or unaided, would have to at least be paid those monetary
emoluments which are payable to employees of government schools, and
since government schools were being paid gratuity in terms of the CCS
Pension Rules, 1972 before 3.4.1997, there cannot be any doubt that
employees of private schools in Delhi till 3.4.1997 would be entitled to
gratuity in view of Section 10(1) of the DSEAR, 1973. In fact, the entire
writ petition so far as the monetary dues are concerned, was predicated on
Section 10(1) of the DSEAR, 1973 Act and was accordingly allowed.
Therefore, no review is called for of the judgment dated 13.11.2013,
inasmuch as, rights of the petitioners for payment of gratuity prior to
3.4.1997 are concerned, such rights are available to petitioners prior to
3.4.1997 as per Section 10(1) of the DSEAR, 1973. Of course, to conclude I
must state that if either of the parties is dissatisfied with the calculation of
the amount which is done by the Director of Education pursuant to the
judgment dated 13.11.2013, it will always be open to any of the parties to
question the decision of the Director of Education in appropriate
proceedings.
9. So far as the period post 3.4.1997 is concerned, the payment of
gratuity under the 1972 Act clearly applies. Once the 1972 Act applies, all
its provisions, including Section 7, will come into play. Section 7 of the
1972 Act contains the aspect that if any dispute arises as to amount which is
to be paid because of the 1972 Act, the decision with respect to the dispute
will have to be taken by the competent authority acting under Section 7 of
the 1972 Act.
10. Therefore, direction by this Court in terms of the judgment
dated 13.11.2013 to the Director of Education to calculate the amount of
gratuity post 3.4.1997 will really be only an administrative exercise in view
of the bulky record which was required to be referred to in order to
determine the amounts of gratuity which were to be payable to the
petitioners, and which exercise actually could also have been done by the
review petitioner/respondent no.1/School, however, the Director of
Education being a neutral authority, the calculation of the amounts
administratively was directed to be done by the Director of Education.
Calculation of the amounts administratively, to be done by the Director of
Education, was not meant to be and cannot be in substitution or in exercise
of the powers of the competent authority under Section 7 of the 1972 Act,
inasmuch as, once the statute provides a particular authority to exercise a
particular power, this Court could not have directed that the decision of the
Director of Education on the issue of amount of payment of gratuity would
be taken as final and that the review petitioner/respondent no.1/School was
prevented from exercising its right under Section 7 of the 1972 Act.
Therefore, the last line of para 3 of the judgment dated 13.11.2013 becomes
relevant because last nine words of this para 3 makes it clear that liability of
review petitioner is only for the amounts as stated in the 1972 Act i.e if there
are disputes raised on any count by the review petitioner/respondent
no.1/School with respect to payments of amounts which are so decided by
the Director of Education, then finality with respect to the amount, including
the dispute as to the period for which the gratuity would be payable, will
only be final only on so being decided by the competent authority under
Section 7 of the Payment of Gratuity Act, 1972.
11. The review petition is accordingly disposed of with the
aforesaid clarifications and observations.
MAY 21, 2015 VALMIKI J. MEHTA, J.
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