Deepak Gupta, J.@mdashThe Petitioner served as a teacher in St. Edward School, Shimla from 1.3.1977 to 31.12.2005 after rendering 28 years and 10 months of service. Her grievance is that she has been paid gratuity by taking her qualifying service to be only 17 years and, therefore, prayed that the school be directed to pay the balance amount of gratuity alongwith interest.
2. It would be pertinent to mention that gratuity amounting to Rs. 68,850/- was paid to the Petitioner. The Petitioner represented to the school that since she had rendered almost 29 years of service, her entire service should have been taken into consideration and not only service of 17 years. The school did not favourably respond to her request and thereafter the Petitioner made a complaint to the Labour-cum-Conciliation Officer, Shimla and thereafter the said Officer exercising powers of the Controlling Authority under the payment of Gratuity Act, 1972 directed that a sum of Rs. 66,669/- alongwith interest @ 9% per annum from the date of application be paid by the school to the Petitioner.
3. Aggrieved by the said order, Respondent No. 4- school filed an appeal and in this appeal, a plea was taken that a teacher is not an employee within the meaning of Gratuity Act, 1972 and, therefore, the Petitioner was not entitled to any relief. This appeal was allowed which has given rise to the aforesaid petition.
4. The question, whether a teacher is an employee within the meaning of Section 2(e) of the payment of Gratuity Act, 1972 is no longer res integra.
5. The Apex Court in
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26. Our conclusion should not be misunderstood that teachers although engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide. x x x x
6. This Court in case titled The Managing Committee, Mohan Middle School (Now Primary School) Solan Brewery, Solan, HP v. Joint Labour Commissioner, HP decided on 8.5.2008 took the same view.
7. However, as far as the present case is concerned, there can be no manner of doubt that the Respondent has made some scheme for payment of gratuity to its employees including teachers and, therefore, it had paid a sum of Rs. 68,850/- to the Petitioner. The stand of the Respondent that this amount was paid as a gesture of goodwill is apparently false. A society has to make payment in accordance with the rules and regulations governing it. There is no question of making payment on goodwill basis. There is one material document on record, which falsifies the case of the school. This is a letter dated 6th December, 1990 written by the then Principal of the school to the Petitioner. Relevant portion of this letter reads as follows:
Dear Mrs I Kaushal,
I wish to inform you that the terminal gratuity due to you upto 31st Mar 90 is Rs, 5,200/- which has been calculated on the basis of half month�s basic pay on 1st March 1990 for every year of service completed by you till 31st March 1990.
8. A bare perusal of this letter clearly shows that even in the year 1990 there existed some gratuity scheme in the school, according to which gratuity was to be calculated on the basis of half months basic pay for every year of service completed. The Respondents have paid the gratuity by taking into consideration the service rendered after 1988, but have given no explanation as to why the service rendered from 1977 to 1988 has not been taken into consideration. Before the authorities it was pleaded that the scheme for payment of gratuity was introduced in the school only in the year 1988 and, therefore, whatever amount has been paid to her is correct. However, Annexure P-5 clearly shows that as per this scheme entire service was to be taken into consideration and not only the services rendered after 1988.
9. I am constrained to observe that the school has taken a dishonest stand. On the one hand it says that the school introduced the scheme for payment of gratuity in the year 1988 and on the other hand it is stated that whatever amount has been paid to the Petitioner has been paid as a goodwill gesture and not in accordance with the scheme. The school, for reasons best known to it, has withheld the gratuity scheme applicable in the school from this Court. Therefore, this Court has no other option, but to draw an adverse inference against the school. The submission made by the school before the authorities that a scheme for payment of gratuity was introduced in the school only in the year 1988, and the withholding of the scheme leave no manner of doubt that a scheme for gratuity was operating in the school which scheme has been purposely withheld from the Court.
10. In view of the letter Annexure P-5, it is apparent that entire service had to be taken into consideration. Therefore, the qualifying service of the Petitioner was 28 years and 10 months and gratuity had to be calculated on the basis of half months basic pay at the time of retirement for every year of service completed by her. Admittedly, her salary at the time of retirement was Rs. 8100/-. 15 days salary works out to Rs. 4050/- and even if the formula applied by the school in Annexure P-5 is taken into consideration, the Petitioner was entitled to a sum of Rs. 1,17,450/-, since 28 years and 10 months will have to be taken as 29 years. The Petitioner has only been paid Rs. 68,850/- and, therefore, she is entitled to the balance amount of Rs. 48,600/-.
11. Keeping in view the above discussion, the petition is allowed and Respondent No. 4-school is directed to pay the balance amount of Rs. 48,600/- to the Petitioner alongwith interest @ 9% per annum from the date of her retirement till the date of payment. The amount be paid on or before 31st October, 2011, failing which the school shall be liable to pay interest @ 12% per annum. In view of the contradictory stand taken by the school, it is also burdened with costs assessed at Rs. 5,000/- which shall be paid by Respondent No. 4-school to the Petitioner on or before the aforesaid date.
