M.KARPAGA VINAYAGAM,.J. - (1.) BIRLA Institute of Technology is the appellant herein, which is a deemed University under Section 3 of the University Grants Act.
(2.) DR . Kailash Vihari who was working as Assistant Professor in the Institute, got superannuated. Thereafter he filed an application before the Controlling Authority under the Payment of Gratuity Act, i.e., the 3rd respondent, claiming Gratuity. The third respondent by the order dated 7.9.2002 allowed the application. Being aggrieved, the Institute filed an appeal before the Commissioner, Labour, Training and Employment, Government of Jharkhand, the 2nd respondent, who, in turn, dismissed the same. Thereupon, the Institute filed the writ petition before the learned single Judge, who, in turn, dismissed the same. Hence, this appeal has been filed in the Letters Patent Jurisdiction of this Court. The factual background relating to filing of the present appeal is given hereunder: (i) The appellant is a deemed University. Dr. Kailash Vihari, the 4th respondent joined the institute as an Assistant Professor on 16.9.1971. (ii) He got superannuated on 30.11.2001. Thereafter the respondent No. 4 filed the application before the appellant institute claiming gratuity under Section 7(1) of the Payment of Gratuity Act. (iii) This application was rejected by the institute, the appellant herein, on 24.12.2001. (iv) Thereupon on 23.1.2002, the respondent No. 4 made an application before the Controlling Authority, the 3rd respondent herein, challenging the rejection order by the employer, the appellant. (v) The Controlling Authority, entertaining the said application, summoned the appellant -employer to file their objection and show -cause. Accordingly, they filed the show -cause and raised preliminary objection on 17.4.2002, stating that it is not maintainable as he is not entitled. (vi) After inquiry, the Controlling Authority passed an order dated 7.9.2002 allowing the application of the respondent No. 4 holding therein that the respondent No. 4 is entitled to gratuity and directing the appellant - employer to pay an amount of Rs. 3,38,796/ -along with 10% simple interest per annum from January, 2002 till the payment to the respondent No. 4. (vii) Being aggrieved by the aforesaid order, the appellant preferred an appeal before the Commissioner, Labour and Training, the 2nd respondent in P.G. Appeal No. 12 of 2002. (viii) After holding the counsel for the parties, the Appellate Authority by order dated 15.4.2005 rejected the appeal and confirmed the order passed by the Controlling Authority. (ix) Aggrieved by the aforesaid orders, the appellant preferred writ petition before this Court, which was registered as W.P.(S) No. 2572 of 2005 and the same was dismissed by the order dated 12.1.2007. (x) Challenging the same, this Letters Patent Appeal has been filed.
(3.) THE common grounds for challenge before the Appellate Authority and before the learned single Judge before this Court could be summarized as follows: (i) The respondent No. 4 is not an employee within the meaning of Payment of Gratuity Act, 1972. (ii) The notification dated 3.4.1997 issued by the Central Government would not cover the respondent No. 4, especially when respondent No. 4 has not completed 5 years of continuous service after notification dated 3.4.1997, as such he is not entitled to claim Gratuity. (iii) The Judgment reported in Ahmedabad Private Teachers Association v. Administrative Officer and Ors. , in which it has been held by the Supreme Court that the teachers are not the employees of the establishment would apply to the present facts and circumstances of the case and therefore, wrong finding has been given without considering the ratio decided by the Supreme Court by the authorities including the learned single Judge.;