Kerala High Court
Sosamma Varghese @ K.J. Sosamma vs Sree Vldyadhiraja Vidya Samajam on 4 March, 2025
Author: Murali Purushothaman
Bench: Murali Purushothaman
WP(C) NO. 14078 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
WP(C) NO. 14078 OF 2024
PETITIONER/S:
1 SOSAMMA VARGHESE @ K.J. SOSAMMA
AGED 82 YEARS
W/O VARGHESE, ATTATHARA HOUSE, PARAMPUZHA P.O,
KOTTAYAM DISTRICT, PIN - 686004
2 P.M. ROSAKUTTY
AGED 73 YEARS
W/O SAMUEL VALUPARAMPIL HOUSE, VADAVATHOOR P.O,
KOTTAYAM DISTRICT, PIN - 686010
3 K.G. KOMALAVALLY AMMA
AGED 74 YEARS
W/O RAJAN NAIR AISWARYA HOUSE, MUTTAMBALAM P.O,
KOTTAYAM DISTRICT, PIN - 686004
4 V.G. RAJAMMA
AGED 70 YEARS
W/O RAMACHANDRAN NAIR KANJIRATHUMMOOTTIL HOUSE,
COLLECTORATE P.O, KOTTAYAM DISTRICT, PIN -
686001
5 SASIKALA DEVI. S
AGED 70 YEARS
W/O HARIKUMAR HARIKRISHNAN HOUSE, MARIYATHURUTH
P.O, KOTTAYAM DISTRICT, PIN - 686027
BY ADV N.SASIDHARAN UNNITHAN
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RESPONDENTS:
1 SREE VLDYADHIRAJA VIDYA SAMAJAM
REP. BY ITS SECRETARY HINDU MISSION ROAD,
BEHIND SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 PRINCIPAL
SREE VLDYADHIRAJA VIDYA BHAVAN MUTTAMBALAM P.O,
KOTTAYAM DISTRICT, PIN - 686001
3 GRATUITY CONTROLLING AUTHORITY
UNDER THE PAYMENT OF GRATUITY ACT (DEPUTY
LABOUR COMMISSIONER) KOTTAYAM, KOTTYAM
DISTRICT, PIN - 686001
4 APPELLATE AUTHORITY
UNDER THE PAYMENT OF GRATUITY ACT (REGIONAL
JOINT LABOUR COMMISSIONER) CIVIL STATION,
KAKKANAD, ERANAKULAM DISTRICT, PIN - 691013
BY ADV SANEER P.M.
R BY SR.GP SRI.V.K.SUNIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioners are retired teachers of the 1st
respondent School. They state that the 1 st respondent School
is an establishment covered under the Payment of Gratuity
Act, 1972 (hereinafter referred to as 'the Act'). The petitioners
were appointed in the School by the 1 st respondent during the
period between 1977-1981 and their service stood terminated
on superannuation during the period between 2002 to 2010.
The service particulars in respect of the petitioners are as
follows:
Name date of date of total service
appointment retirement
i) Sosamma Varghese 3/6/1978 31/5/2002 24 years
ii) P.M Rosakutty 17/1/1981 31/3/2008 27 years
iii) K.G. Komalavalliamma 1/6/1977 31/3/2005 28 years
iv) V.G. Rajamma 1978 31/3/2010 32 years
v) Sasikala Devi S 1/6/1981 31/3/2010 29 years
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2. The petitioners preferred Exts.P1 to P5 applications
for gratuity in terms of Section 7(4) before the 3 rd respondent,
the Controlling Authority under the Act.
3. Respondents 1 and 2 filed separate written
statements, contending that the applicants do not fall within
the purview of the Act and that they have no services as
claimed in their applications.
4. The Controlling Authority passed Exts. P7 to P11
orders, determining the gratuity payable to the petitioners.
However, only the service rendered by the petitioners from
03.04.1997 onwards was taken into account for the purpose
of gratuity. Notably, 03.04.1997 is the date on which Section
2(e) of the Payment of Gratuity Act was amended,
substituting the definition of 'employee'.
5. The petitioners preferred statutory appeals
against Exts.P7 to P11 orders and the 4 th respondent, the
Appellate Authority, by Ext.P13 common order, rejected the
appeals and confirmed the finding of the Controlling Authority
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that the petitioners are entitled to have their service reckoned
only from 03.04.1997. Though the petitioners preferred
Review Petitions, the same were also dismissed by the 4 th
respondent by Ext.P15 order. Exts.P7 to P11, and Exts.P13
and P15, in so far as they limit the petitioners' service to the
period commencing from 03.04.1997 for the purpose of
determining gratuity, are impugned in the writ petition. The
petitioners have also sought a declaration that they are
entitled to have their service prior to 03.04.1997 counted for
the purpose of computing gratuity.
6. Heard Sri. N. Sasidharan Unnithan, the learned
counsel for the petitioners, Sri. Saneer P.M., the learned
counsel for respondents 1 and 2 and Sri. V.K. Sunil, the
learned senior Government Pleader.
7. Sri. Sasidharan Unnithan would contend that,
following the amendment to the definition of 'employee' under
the Gratuity Act with effect from 03.04.1997, teachers also
fall within the scope of 'employee' as defined under Section
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2(e) of the Act, and that teachers who were in service as on
the date of the amendment, i.e., 03.04.1997, are entitled to
gratuity by duly counting their service rendered prior to
03.04.1997 as well.
8. Section 1(3)(c) of the Act reads as follows:
"It (the Act) shall apply to - (c) such other
establishments or class of establishments, in
which ten or more employees are employed, or
were employed, or, any day of the preceding
twelve months, as the Central Government
may, by notification, specify in this behalf."
The Central Government, in exercise of the powers conferred
by clause (c) of sub-Section 3 of Section 1 of the Act has
extended the provisions of the Act to educational institutions
employing ten or more persons as per Notification No. S -
42013/1/95 - SS.II, dated 3rd April, 1997. Since the
provisions of the Act have been made applicable to
educational institutions as per the aforesaid notification, the
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1st respondent, an educational institution, is an
'establishment' under Section 1(3)(c) of the Act.
9. The definition of 'employee' under Section 2(e)
of the Act, as amended by Payment of Gratuity
(Amendment) Act, 2009 with retrospective effect from
03.04.1997, 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."
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Further, Section 13A was also inserted into the Act with effect from
03.04.1997 and the same reads as follows:
"13A. Validation of payment of gratuity.-
Notwithstanding anything contained in any
judgement, decree or order of any court, for the
period commencing on and from the 3rd day of
April, 1997 and ending on the day on which the
Payment of Gratuity (Amendment) Act, 2009,
receives the assent of the President, the gratuity
shall be payable to an employee in pursuance of
the notification of the Government of India in the
Ministry of Labour and Employment vide number
S.O. 1080, dated the 3rd day of April, 1997 and
the said notification shall be valid and shall be
deemed always to have been valid as if the
Payment of Gratuity (Amendment) Act, 2009 had
been in force at all material times and the
gratuity shall be payable accordingly:
Provided that nothing contained in this
section shall extend, or be construed to extend,
to affect any person with any punishment or
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penalty whatsoever by reason of the non-
payment by him of the gratuity during the period
specified in this section which shall become due in
pursuance of the said notification."
10. The Payment of Gratuity (Amendment) Act,
2009, widened the definition of 'employee' under the Act in
order to extend the benefit to the teachers with effect from
the date on which the provisions of the Act were made
applicable to educational institutions vide notification
referred to supra. The definition of employee under Section
2(e) as amended by the Payment of Gratuity (Amendment)
Act, 2009, takes in teachers. The effect of the amendment
is that the teachers are entitled to claim gratuity under the
Act with retrospective effect from 03.04.1997. Interpreting
Section 2(e) of the Act, as amended by the Payment of
Gratuity (Amendment) Act, 2009, the Hon'ble Supreme
Court in Birla Institute of Technology v State of
Jharkhand & others, [2019 (4) SCC 513 : AIR 2019 SC
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1309 : 2019 KHC 6290], held that teachers will come within
the purview of 'employee' as defined in the Act and they are
entitled to claim the amount of gratuity under the Act from
their employer with effect from 03.04.1997.
11. The constitutional validity of the amended clause
(e) of Section 2, defining the term 'employee' and extending
the applicability of the Act to educational institutions, as well
as the retrospective effect given to the amended provisions of
Section 2(e) and Section 13A with effect from 03.04.1997,
has been upheld by the Hon'ble Supreme Court in
Independent Schools' Federation of India (Regd.) v.
Union of India and Another [2022 KHC 6866: 2022 SCC
OnLine SC 1113]. In light of the decisions of the Apex Court,
teachers who were in service as on 03.04.1997 and retired
thereafter are eligible for gratuity, duly counting their entire
service including service prior to 03.04.1997. Accordingly,
Exts.P7 to P11 orders of the Controlling Authority and
Exts.P13 and P15 orders of the Appellate Authority, to the
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extent they did not reckon the petitioners' service prior to
03.04.1997, are set aside. The matter is remitted to the
Controlling Authority, the 3rd respondent, to pass fresh orders
on Exts.P1 to P5 applications in accordance with law. The 3 rd
respondent shall issue notice to the petitioners as well as
respondents 1 and 2, and take a fresh decision as
expeditiously as possible, in any case within a period of 6
weeks from the date of receipt of a copy of this judgment.
Writ Petition is disposed of as above.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
GBG
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APPENDIX
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPLICATION FOR GRATUITY
FILED BY THE 1ST PETITIONER BEFORE THE 3
Exhibit P2 TRUE COPY OF THE APPLICATION FOR GRATUITY
FILED BY THE 2ND PETITIONER BEFORE THE 3
Exhibit P3 TRUE COPY OF THE APPLICATION FOR GRATUITY
FILED BY THE 3RD PETITIONER BEFORE THE 3RD
Exhibit P4 TRUE COPY OF THE APPLICATION FOR GRATUITY
FILED BY THE 4 TH PETITIONER BEFORE THE 3RD
Exhibit P5 TRUE COPY OF THE APPLICATION FOR GRATUITY
FILED BY THE 5TH PETITIONER BEFORE THE 3RD
Exhibit P6 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE 2ND PETITIONER IN G.C NO. 2/2012 BEFORE
THE 3RD RESPONDENT
Exhibit P7 TRUE COPY OF THE ORDER DATED 27/11/2018 IN
G.C NO. 24/2010 PASSED BY THE 3RD RESPONDENT
Exhibit P8 TRUE COPY OF THE ORDER DATED 27/11/2018 IN
G.C NO. 2/2012 PASSED BY THE 3RD RESPONDENT
Exhibit P9 TRUE COPY OF THE ORDER DATED 27/11/2018 IN
G.C NO.3/2012 PASSED BY THE 3RD RESPONDENT
Exhibit TRUE COPY OF THE ORDER DATED 27/11/2018 IN
P10 G.C NO.4/2012 PASSED BY THE 1ST RESPONDENT
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Exhibit TRUE COPY OF THE ORDER DATED 27/11/2018 IN
P11 G.C NO.6/2012 PASSED BY THE 1ST RESPONDENT
Exhibit TRUE COPY OF THE APPEAL NO. G.A 34/2021,
P12 FILED BY THE 2ND PETITIONER BEFORE THE 4TH
RESPONDENT
Exhibit TRUE COPY OF THE COMMON ORDER DATED 23/3/2023
P13 OF THE 4TH RESPONDENT APPELLATE AUTHORITY IN
G.A NOS. 33/2021, 34/2021, 35/2021, 36/2021
Exhibit TRUE COPY OF THE REVIEW PETITION AND
P14 AFFIDAVIT DATED 20/5/2019 FILED BY THE 1ST
PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit TRUE COPY OF THE COMMON ORDER DATED
P15 28/12/2023 OF THE 4TH RESPONDENT APPELLATE
AUTHORITY IN G.A NOS. 33/2021, 34/2021,
Exhibit TRUE COPY OF THE JUDGMENT IN INDEPENDENT
P16 SCHOOLS FEDERATION OF INDIA (REGD) VS.UNION
OF INDIA AND ANOTHER - 2022 KHC ONLINE 6866
SUPREME COURT
Exhibit TRUE COPY OF THE COMMON ORDER DATED
P17 13/12/2021 IN G.C NOS.24/2020 TO 30/2020,
41/2020 AND 45/2020 PASSED BY THE 3RD
RESPONDENT
