Orissa High Court
Subash Chandra Mishra vs President on 10 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 22 of 2019
Subash Chandra Mishra .... Appellant
Mr. Bijay Kumar Mohanty, Advocate
-versus-
President, Sanjay Memorial Institute .... Respondents
of Technology and Another
None
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
Order No. 10.11.2022
Dr. S. Muralidhar, CJ.
03. 1. Despite service of notice, none appears for the Respondents.
2. The present appeal is directed against an order dated 18th
December, 2018 passed by the learned Single Judge allowing writ
petition i.e. W.P.(C) No.12929 of 2018 filed by the Respondent-
Sanjay Memorial Institute of Technology (SMIT) challenging an
order dated 29th June, 2018 passed by the Appellate Authority under
the Payment of Gratuity Act (PG Act) whereby the appeal filed by
the Respondent-Institute had been dismissed and an order passed by
the Controlling Authority under the PG Act-cum-Labour
Commissioner, Berhampur on 23rd February, 2013 allowing the claim
of the present Appellant and directing the Institute to pay his gratuity
amount was affirmed. The net result is by the impugned judgment the
learned Single Judge has upheld the claim of the Respondent that the
present Appellant, who was employed as a Welder (Instructor), was a
'teacher' and, therefore, not covered under the definition of Section
2(e) read with Section 4 of the PG Act.
3. In arriving with the above conclusion, the learned Single Judge has
placed extensive reliance on the judgment of the Supreme Court in
the case of Ahmedabad Pvt. Primary Teachers Association v.
Administrative Officer (2004) 1 SCC 755.
4. It was perhaps not brought to the attention of the learned Single
Judge that consequent upon the above judgment, the Parliament
amended the PG Act on 31st December, 2009 with retrospective
effect from 3rd April, 1997. By the said amendment the definition of
'employee' in Section 2(e) of the PG Act was amended expanding
the scope of the expression 'employee' to include teachers in
educational institutions. The amended definition of Section 2(e) of
the PG Act reads as under:
"(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."
5. The error in the earlier judgment in Ahmadabad Pvt. Primary
Teachers Association (supra) was acknowledged by the Supreme
Court in a subsequent judgment dated 7th March, 2019 in Birla
Institute of Technology v. The State of Jharkhand (2019) 4 SCC
513, where it was categorically held as under:
"28. In the light of the amendment made in the
definition of the word "employee" as defined
of 2009 with retrospective effect from 03.04.1997,
the benefit of the Payment of Gratuity Act was also
extended to the teachers from 03.04.1997.
29. In other words, the teachers were brought within
the purview of "employee" as defined in Section
2(e) of the Payment of Gratuity Act by Amending
Act No. 47 of 2009 with retrospective effect from
03.04.1997.
30. The effect of the amendment made in
the Payment of Gratuity Act vide Amending Act No.
47 of 2009 on 31.12.2009 was twofold. First, the law
laid down by this Court in the case of Ahmadabad
Pvt. Primary Teachers Association (supra) was no
longer applicable against the teachers, as if not
rendered, and second, the teachers were held entitled
to claim the amount of gratuity under the Payment of
Gratuity Act from their employer with effect from
03.04.1997.
31. In our considered opinion, in the light of the
amendment made in the Payment of Gratuity Act as
detailed above, reliance placed by the learned
counsel appearing for the appellant (employer) on
the decision of Ahmadabad Pvt. Primary Teachers
Association (supra) is wholly misplaced and does
not help the appellant in any manner. It has lost its
binding effect."
6. It is, therefore, now plain that in the light of the amendment to Section
2 (e) of the PG Act with retrospective from 3rd April, 1997 the claim of
the Appellant has to be allowed. Accordingly, the impugned order of the
learned Single Judge is hereby set aside and the order dated 23rd
February, 2013 passed by the Controlling Authority under the PG Act-
cum-Assistant Labour Commissioner, Berhampur allowing the claim of
the present Appellant is restored to file. The amount now be paid to the
Appellant within a period of eight weeks, failing which it will be paid
together with simple interest @ 6% per annum for the period of delay.
7. The appeal is allowed in the above terms. An urgent certified copy of
this order be issued as per rules.
(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
S.K. Jena/Secy.
