Delhi High Court
Smt. Malti Dhawan vs Directorate Of Education & Ors. on 3 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 8032/2008
% 3rd February,2017
SMT. MALTI DHAWAN .....Petitioner
Through: None.
versus
DIRECTORATE OF EDUCATION & ORS. ..... Respondents
Through: Mr. Siddharth Dutta, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner has filed this writ petition under Article 226 of the
Constitution of India seeking direction that petitioner be paid her gratuity
and leave encashment benefits by the respondent no.2/school. Petitioner
retired as a Vice Principal of the respondent no.2/school on 31.8.2007 after
serving 24 years with the respondent no.2/school.
2. The issue that gratuity is payable by the school to its employees
is no longer res integra and this Court has decided the same in the case of
Deepak Dua Vs. Directorate of Education & Anr. W.P. (C) No. 7040/2011
decided on 11.4.2013. Accordingly, adopting the ratio of the judgment in
the case of Deepak Dua (supra) it is held that the petitioner is entitled to
gratuity.
3. Petitioner will also be entitled to leave encashment benefit on
account of her service with the respondent no.2/school at the time of
retirement in view of Section 10 of the Delhi School Education Act, 1973
because employees and teachers of private schools in Delhi have to be paid
the same monetary benefits as are paid to employees and teachers of
government schools and government aided schools. In government schools
and government aided schools employees get leave encashment benefits and
hence the petitioner is thus also entitled to leave encashment benefit from
the respondent no.2/school.
4. A reading of the counter-affidavit of the respondent
no.2/school shows that two grounds have been raised in the same for
denying the benefits claimed by the petitioner. First defence raised is of
lack of financial capacity of the school and the second defence is on account
of there being no statutory provision for payment of gratuity to teachers of
unaided private schools.
5. The second defence of respondent no.2/school for non-payment
of gratuity on account of there not being a statutory provision is a defence
without substance in view of the ratio of Deepak Dua's case (supra), and is
therefore rejected.
6. So far as the defence of lack of financial capacity is concerned,
in my opinion, this is not a ground which is available to a school once there
are found to exist statutory dues claims and entitlements of an employee and
teacher of a school, and which have to be paid by the school.
7. Learned counsel appearing for respondent no.1/Director of
Education (DOE) confirms that DOE has been regularly writing to the
respondent no.2/school to make payment of the dues of the petitioner, but
the said aspect has had no bearing and result with the school.
8. I may note that this writ petition is pending in this Court since
last 8 years, and therefore, I would not like to send the petitioner so far as
payment of gratuity is concerned to the competent authority under the
Payment of Gratuity Act, 1972 and this Court exercises its extraordinary
jurisdiction under Article 226 of the Constitution of India to direct the grant
of reliefs to the petitioner by the respondent no.2/school being those of
gratuity and leave encashment benefits.
9. In view of the above, this writ petition is allowed. Respondent
no.2/school is directed to pay the petitioner her gratuity benefit and leave
encashment benefit within a period of three months from today along with
interest at 5% per annum simple from 31.8.2007-the date of retirement of
the petitioner from the respondent no.2/school till the date of clearing of the
dues payable.
February 03, 2017/ib VALMIKI J. MEHTA, J
