Managing Committee vs Vishwambhar Lal Joshi S/O Shri ...
2021 Latest Caselaw 6764 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 4044/2021

1.      Managing Committee, Shri Raghunath Higher Secondary
        School, Laxmangarh, District Sikar Through Its Chairman
        Sh. Omprakash Joshi.

2.      Managing Committee, Shri Raghunath Higher Secondary
        School, Laxmangarh, District Sikar Registered Office At
        Bajaj Haiers And Leisures Limited-62, C- Mittal Tower, 6Th
        Floor, Nariman Point, Mumbai (Maharashtra)

                                                                ----Petitioners

                                    Versus

1.      Vishwambhar Lal Joshi S/o Shri Moti Lal Joshi, Aged About
        70 Years, R/o Ward No. 20, Near Sodhani Government
        Community Hospital, Laxmangarh, District Sikar
                                                     ----Respondent-Applicant

2. Director, Secondary Education Department, Government Of Rajasthan, Bikaner.

                                              ----Respondent-Non-Applicant


For Petitioner(s)        :     Mr. Vivek Dangi
For Respondent(s)        :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

22/11/2021

This writ petition assails the legality and validity of the order

dated 07.01.2020 passed by the Court of learned Senior Civil Judge,

Laxmangarh District Sikar whereby the objection raised by the

petitioners/non-applicants in the execution petition filed by the

respondent No.1, has been dismissed.

The facts in brief are that the respondent No.1 was appointed

vide order dated 20.07.1964 by the petitioner institution as Senior

Teacher against a sanctioned and aided post. He retired on

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29.11.2001 on attaining the age of superannuation. The application

No.44/2006 filed by the respondent No.1 under Section 21 of the

Rajasthan Non-Government Educational Institutions Act, 1989 (for

brevity, "the Act of 1989") seeking inter alia payment of gratuity

came to be allowed by the Rajasthan Non-Government Educational

Institutions Tribunal, Jaipur (for brevity, "the Tribunal") vide its

judgment dated 24.11.2009 and the petitioners were directed to pay

to the respondent No.1 entire gratuity with 6% interest. On failure to

pay the dues as per direction of the learned Tribunal dated

24.11.2009, the respondent No.1 preferred an execution petition

which is subjudice in the Court of learned Senior Civil Judge,

Laxmangarh. In the execution petition, an objection was raised by

the petitioner as to the amount of gratuity contending that since the

Rajasthan Non-Government Educational Institutions (Recognition,

Grant-In-Aid and Service Conditions Etc.) Rules, 1993 (for brevity

"the Rules of 1993") came into force with effect from 01.04.1993,

the respondent would be entitled for the gratuity for a period from

01.04.1993 till 30.11.2001, i.e., the date of retirement. However, the

learned execution Court, vide its order impugned dated 07.01.2020,

rejected objection of the petitioners and directed payment of gratuity

to the respondent No.1 taking into consideration his entire length of

service.

Learned counsel for the petitioners submitted that the

respondent employee is not entitled for gratuity computing his

service prior to 01.04.1993 i.e. coming into force of the Rules of

1993. Relying on a judgment of the Hon'ble Apex Court of India in

case of Rajasthan Welfare Society Vs. State of Rajasthan:

(2005) 5 Supreme Court Cases 275, learned counsel submitted

that the "teachers" which are otherwise not included within the

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definition of employees under the provisions of Payment of Gratuity

Act, 1972 (for brevity "the Act of 1972"), have been extended benefit

of the gratuity for the first tme under Section 16 of the Act of 1989

and Rule 82 of the Rules of 1993 and hence, the respondent could

not claim benefit for the service rendered prior to 01.04.1993 for

computation of gratuity. He submitted that in Civil Appeal

No.4970/2011, State of Rajasthan and Ors. Vs. Mahila Mandal,

the Hon'ble Apex Court has held that since Rules came into force

from 01.01.1993, the benefit could not have been extended from the

earlier period. Lastly, he submitted that since, the judgment dated

24.11.2009 passed by the Tribunal execution whereof has been

sought, does not prescribe the service period for which the

respondent employee would be entitled for payment of gratuity and

hence, the learned executing Court has passed the order impugned

exceeding its jurisdiction. He, therefore, prayed for quashing the

order dated 07.01.2020.

Heard the learned counsel for the petitioners and perused the

record.

The issue as to the period of service which is to be taken into

consideration for the grant of gratuity, is no more res integra. The

Hon'ble Apex Court has, in case of The Management of Goodyear

India Ltd. Vs. K.G. Devessar: AIR 1985 SC 1759, while dealing

with a similar issue, held as under:

"We do not agree with the submission. The date of coming into force of the Act has relevance to the date on which gratuity becomes payable. Gratuity becomes payable on the termination of employment and therefore, in order to be eligible to payment of gratuity, the termination of employment whether it be due to superannuation or retirement or resignation or death or disablement, has to be after the date of coming into force of the Act. Once that condition is satisfied, the further question would be regarding

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the amount of gratuity payable. Gratuity will have to be paid to all those persons whose employment came to an end after the coming into force of the Act for that period during which he came within the definition of an employee within the meaning of Section 2(e) of the Payment of Gratuity Act. To hold otherwise may render a whole class of persons who all their lives got wages of less than Rs.1,000/- per month, but on the eve of their retirement started getting wages of Rs. 1,000/- per month. Surely that could not have been the intention of Parliament. We think the only reasonable way of construing Section 4 in the light of the definition of employee in Section 2(e) is to hold that a person whose services are terminated for any of the reasons mentioned in Section 4(1), after the coming into force of the Act is entitled to the payment of gratuity, if he has rendered continuous service for not less than five years, for that period during which he satisfied the definition of employee Under Section 2(e) of the Act."

Relying on the aforesaid judgment, a co-ordinate Bench of this

Court has, in case of Rajasthan Welfare Society Vs. Director

Primary and Secondary Education Rajasthan Bikaner & 11

Ors., 1998 (3) WLC 360, while considering the question as to

whether service rendered by an employee prior to enforcement of

the Rules of 1993 can be taken into consideration for assessing the

amount of gratuity, held as under:-

"11. Rule-82, has a statutory force and imposes an obligation on the management of a private aided educational institution to pay gratuity to its employees. Like wise, it also creates a legal right/entitlement to the employee to receive gratuity from his employer to be calculated as admissible under the Payment of Gratuity Act, 1972 as amended from time to time. In other words, the right of an employee to get gratuity and obligation of the employer to make payment of gratuity are created by Rule-82, though the amount has to be determined as admissible under the Payment of Gratuity Act. Hence, after Rule 82 came into force, the gratuity is payable to the employee of the aided educational institutions on the termination of their employment after rendering continuous service for not less than five years. Termination of employment may be on account of superannuation or retirement or resignation or death or disablement due to accident or disease. By this Rule, an employee of an aided

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educational institution whose employment stands terminated after the date of coming into force of the Rules becomes entitled to get gratuity from his employer if he had rendered continuous service for not less than five years prior to his termination. He shall be entitled to payment of gratuity to be computed on the basis of his period of service rendered by him prior to enforcement of Rule 82.

12. No doubt, Payment of Gratuity Act, 1972 is a complete Code containing detailed provisions on all aspects for payment of gratuity. It creates the right of payment of gratuity, undertakes when the right will accrue and lays down the principles for quantification of the gratuity. But, in the present matters, the employees are of the aided educational institutions and their right to get gratuity is created with corresponding obligation of the Management by virtue of Rule 82 from the date it came into force. The term as admissible under the Payment of Gratuity Act, 1972 as amended from time to time, only clarifies that quantification of gratuity shall be on the principles laid down under the Payment of Gratuity Act. The right to get gratuity and quantification of the amount of gratuity are two different aspects. Enforcement of the right or an obligation created under any Act has to be made as per the machinery and forum provided in the Act itself. In the present matters, the right of the employees to get gratuity and corresponding obligation of the management are creation of the statutory Rules of 1993 framed under the Act of 1989 which are regulated as terms and conditions of employment by virtue of Section 16 of the Act which includes gratuity in its ambit. Section 21 of the Act provides special Tribunal constituted under Section 22 as a special forum for decision in relation to any dispute between the management of a recognised institution and any of its employees with respect to conditions of service. When a special forum is created under the Act for enforcement of a right or obligation, the remedy available to the suitor is to get adjudication form the forum provided under the Act.

13. In Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. (AIR 1975 SC 2238), it has been held:

"(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act." 13-A. It would also be fruitful to refer paragraph- 10 of the judgment:

"In Doe v. Bridges 1831 1 B & Ad. 847 at page 859 are the famous and oft quoted words of Lord Tenterden. C.J. saying:

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"Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be general rule that performance cannot be enforced in any other manner."

This passage was cited with approval by the Earl of Halsbury L. C. in Pasmore v. The Oswaldtwistle Urban District Council, 1898 AC 387 and by Lord Simonds at P. 407 in the case of Cutler v. Wandsworth Statidum Ltd., 1949 AC 398. Classic enunciation of the law and classification of the cases in three classes was done by Willes J. "With the precision which distinguished the utterances of that most accomplished lawyer, in the case of Wolverhampton New Waterworks Co. v.

Hawkesford" (1859) 6 C.B. (N.S.) 336 (vide the speech of Viscount Haldane at page 391, in the case of Neville v. London "Express" Newspaper, Ltd. 1919 AC 368 (HL). The classes are enumerated thus:

"There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy, there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law, then there is a second class which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of that or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it...." with respect to that class it has always been held that the party must adopt the form of remedy given by the statute.

14. In view as stated and discussed above, the first three contentions agitated by the learned Counsel for the petitioners can be rejected conveniently. At the cost of repetition it may be stated that Rule 82 of the Rules of 1993 confers right to the employees of the aided educational institutions to get gratuity from their employer to be determined in terms of the Payment of Gratuity Act and also a corresponding obligation of the respective management to make payment of the gratuity. This right is enforceable by the employee as a condition of service by virtue of Section 16 of the Act of 1989 for which a special Tribunal is constituted in case there is any dispute for non- payment between him and the Management. Rule 82 confers a right to the employee to get gratuity as admissible under Payment of Gratuity Act, 1972.

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As such, determination of the amount towards gratuity is to be made in terms of the provisions contained under the Payment of Gratuity Act. For calculating the amount of gratuity, the entire period of service rendered by an employee has to be taken into consideration (See the Management of Goodyear India Ltd. v. Shri K.G. Devesar (AIR 1985 SC 1759). As such, contention No.3 can also be rejected conveniently."

There is no inconsistent view either of the Hon'ble Supreme

Court or of this Court. Learned counsel for the petitioners could not

cite any law to the contrary.

In view of the aforesaid settled legal position, contention of the

learned counsel that in absence of any direction by learned Tribunal

to calculate the amount of gratuity payable to the respondent No.1

taking into consideration his entire length of service, the learned

executing Court erred in rejecting its objection as to payment of

gratuity considering his entire service period, is wholly misconceived

and deserves to be rejected. In the considered opinion of this Court,

the learned executing Court has committed no error in passing the

order impugned. Even otherwise also, a perusal of the order dated

07.01.2020 reveals that the learned Executing Court has considered

that an objection to the similar effect was raised by the petitioners

before the learned Tribunal also; but, did not find favour.

Insofar as reliance placed by learned counsel on the judgment

of Hon'ble Apex Court in case of Rajasthan Welfare Society

(supra) is concerned, it is of no help to him. In the aforesaid case, it

was held that entitlement of the employees of the aided institutions

to gratuity cannot be called in question in view of the provisions

contained in Section 16 of the Act of 1989 and Rule 82 of the Rules

of 1993. Neither any such issue was raised as to whether the service

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period prior to 01.04.1993 was to be taken into consideration for

calculation for the amount of gratuity nor, it was decided.

Similarly, the judgment of Hon'ble Apex Court in case of State

of Rajasthan & Ors. (supra), is of no help to the petitioners. The

appeal before the Supreme Court originated from the judgment

dated 25.10.2007 passed by co-ordinate Bench of this Court in S.B.

Civil Writ Petition No.2473/2006 and other connected matters

wherein, there was no question of either payment of gratuity or the

service period which was required to be taken into consideration for

payment of gratuity.

Upshot of the aforesaid discussion is that the writ petition is

wholly misconceived and deserves to be dismissed with cost of

Rs.5,000/-. The cost shall be deposited by the petitioners within the

Rajasthan State Legal Services Authority, Jaipur within a week from

today.

The writ petition is dismissed accordingly.

(MAHENDAR KUMAR GOYAL),J

PRAGATI/85

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