PERMOD KOHLI, J. - (1.) PETITIONER herein is a deemed University notified under Sec.3 of the University Grants. It is aggrieved of an order dated 15.4.2005 passed by the Commissioner, Labour Training & Employment Dept., Govt. of Jharkhand as Appellate Authority under the Payment of Gratuity Act, 1972 in P.G. Appeal No. 02/22 affirming the order dated 7.9.2002 passed by the Deputy Labour Commissioner cum Controlling Authority in P.G Case No. 2/02.
(2.) FACTUAL background ' leading to the present writ application is noticed hereunder. Respondent No. 4 joined the petitioner -Institution as Assistant Professor on 16.9.1971 and superannuated in the name capacity on 30.11.2001. After retirement respondent No. 4 made an application before the petitioner -employer claiming gratuity. This application came to be rejected en 24.12.2001. Thereafter, respondent No. 4 made an application before respondent No. 3 Controlling Authority notified under the Payment of Gratuity Act. 1972. Respondent No. 3 after seeking response of the petitioner and holding an inquiry, passed order dated 7.9.2002 directing the petitioner to pay the amount of Rs. 3,38,796/ - as gratuity along with 10% simple interest till the payment to respondent No. 4. Petitioner herein refereed an appeal being P.G. Appeal No. 02/02 before respondent No. 2. Appellate Authority notified under the Payment of Gratuity Act, 1972 challenging the order of respondent No. 2. Appeal preferred by the petitioner also came to be rejected vide impugned order dated 15.4.2005. Common grounds for challenge before the Appellate Authority as also before this Court are (1) Respondent No. 4 is not an employee within the meaning of Payment of Gratuity Act, 1972 (2) Respondent No. 4 is not covered under the notification dated 3.4.1997 issued by the Central Government and thus is not entitled to gratuity and (3) Respondent No. 4 having not completed five years of continuous service after the notification dated 1997 is not eligible to earn gratuity. Controlling Authority at well the Appellate Authority rejected all the contentions of the petitioner, inter alia, held that (1) Respondent No. 4 is an employee within the meaning of Sec.2(c) of the Payment of Gratuity Act, 1972 (2) Notification fully covers the case of the respondent No. 4 having made the Payment of Gratuity Act, 1972 applicable to the Educational Institutions and (3) five years continuous service is to be reckoned from the date of joining of service and not from the date of issuance of notification applying the provisions of Payment of Gratuity Act, 1972 to the institution in question. 3 I have heard learned Counsel for the parties.
(3.) BEFORE questions raised in the petition and argued at length by the learned Counsel for the parties are answered, it is deemed proper to refer some of the relevant provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as the Act) which read as under: 2(e) "employee" means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi -skilled, or unskilled, manual, supervisory technical or clerical work, whether the terms of such employment ore express or implied and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a past under the Central Government or a State Government and is governed by any other Act for by any rules providing for payment of gratuity. 2(f) "employer" means, in relation to any establishment, factory, mine, oilfield, plantation, port, railway company or shop. (i) belonging to, or under the control of the Central Government or a State Government a person or authority appointed by the appropriate Government for the supervision and control of employees, or where no person or authority has been so appointed the head of the Ministry or Department concerned. (ii) belonging to, or under the control of, any local authority ,the person appointed by such authority for the supervisor and control of employees or where no person has been so appointed, the chief executive officer of the local authority. (iii) in any other case, the person, who, or the (sic) which, has the ultimate control over the affairs of the establishment, factory, mine oilfield, plantation port, railway company or shop, and where the said affair 'sare entrusted to any other person, whether called a manager, managing director or by any other name, such person. 4. Payment of gratuity. - (a) Gratuity shall be payable to an employee on the termination of his employment after the has rendered continuous service for not less than five years, - (a) on his superannuation or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease; Provided that the completion of continuous (sic) years shall not be necessary where the termination of the employment of any employee is due to death or disablement. 7. Determination of the amount of gratuity. - (1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing to act on his behalf shall send (sic) written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity. (2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in Sub -section (1) has been made or not determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined. (3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable. (3 A) If the amount of gratuity payable under Sub -section (3) is not paid by the employer within the period specified in Subsection (3), the employer Shall pay, from the date on which the gratuity becomes payable to the date on which it is paid simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long -term deposits, as nun Government may, by (sic) specify: Provided, that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground. ;