SUBRATA TALUKDAR, J. - (1.) The short point which requires to be examined in this bunch of analogous writ petitions is the challenge thrown to the respective final orders of the Controlling Authority (for short CA) each dated 20th November, 2015 under the Payment of Gratuity Act, 1972 (for short the 1972 Act).
(2.) By the said final orders, the CA came to finding that pension and gratuity are two different legal concepts. Accordingly, sanction of pension does not ipso facto mean payment of gratuity. Receipt of gratuity is a statutory right under the 1972 Act. Therefore, the claim of the private respondents to gratuity from their employer, the writ petitioner/School in issue stands justified.
(3.) Arguing on behalf of the writ petitioners/ School in issue, being the Seth Soorajmal Jalan Balika Vidyalaya, Mr. Jasobanta Rakshit, Ld. Advocate led by Mr. Soumya Majumdar, Ld. Counsel argues as follows:- "(a) That the writ petitioner No.1/School is a Dearness Allowance (DA) getting aided School affiliated to the West Bengal Board of Secondary Education (for short the Board). The School receives the DA component of the salaries related to its permanent teaching and non-teaching staff from the Government of West Bengal (for short the State or, GWB). b) The private respondents were employed with the School and each retired after a long period of service. Upon retirement, the private respondents claimed gratuity from the CA under the 1972 Act. c) In the proceeding for claim to gratuity, the District Inspector of Schools was made a party respondent pursuant to orders of an Hon'ble Single Bench. d) Although the School is guided by the Notifications issued from time to time by the State, the responsibility to pay gratuity against the DA component lies with the State alone. The School is liable only to release gratuity against Basic Pay. e) In the event the School is compelled to pay the entire gratuity claimed by the private respondents the fees of the students are required to be raised. f) The hearing before the CA was attended by the DI of Schools pursuant to the directions of the Hon'ble Single Bench (supra). However, the DI of Schools preferred not to make any submissions connected to the claim of the private respondents. g) By the final order of the CA dated 20th November, 2015 the School was directed to pay the gratuity amount within 30 days of issuing the said order. h) That the private respondents are in receipt of pension vide orders issued by the Deputy Director of School Education. The private respondents, in terms of several Government Orders, are entitled to receive the pension and only gratuity against Basic Pay. Such retirement dues as applicable to DA getting Schools, are governed by Government Orders which form part of a special scheme. i) Since the State bears the expenditure for paying bonus on the DA component actually paid by the State, the same analogy must apply to the claim to gratuity. Therefore, the private respondents are entitled to receive gratuity against the DA component paid by the State towards salaries and thereafter pension. j) That since these writ petitions involves jurisdictional issues no appeal can lie under Section 7 (7) of the 1972 Act. Such jurisdictional issues are only subject to decision by a Writ Court. (k) On the point of the ineligibility of a teacher of a School to claim gratuity reliance is placed on the decision of an Hon'ble Division Bench of this Court reported in 2001 (1) LLJ 1249. The Hon'ble Division Bench, inter alia, observed that the vocation of a teacher in a School cannot be compared with the definition of an employee within the meaning of Section 2(e) of the 1972 Act. The Hon'ble Division Bench construed the imparting of education as a noble mission. l) On the point that a School is not a shop or establishment within the meaning of the 1972 Act, reliance is placed on another decision of an Hon'ble Division Bench of this Court reported in 2001 (1) LLJ 1594. In short, the activities of the School in issue are not a commercial activity which would qualify its staff to place claims under the 1972 Act. ;