KRISHNA BEMBI Vs. APPELLATE AUTHORITY U P

JUDGEMENT

(1.) BY this petition, the petitioner has challenged the order dated 15. 6. 2004 passed by appellate authority under the Payment of gratuity Act, 1972 (herein after referred to as Act) whereby the order dated 6. 12. 2003 passed by Controlling Authority in favour of the petitioner under the aforesaid Act has been set aside.

(2.) THE brief facts of the case are that while working as officiating Head mistress in Sri Ram Junior High School, Mawana, District Meerut the petitioner was retired from service on attaining her age of superannuation on 1. 7. 2002. Initially the petitioner has joined the service as teacheress in Mawana Sugar Works Primary School run by mawana Sugar Works, Mawana, district Meerut on 1. 11. 1966. Later on in the year 1974 Mawana Sugar Works Primary School was transferred under the management of Shri Ram School Society, Mawana. Consequently a letter dated 29. 6. 1974 was sent to the petitioner by the Chairman of Shri Ram School Society, Meerut indicating the terms and conditions of the service and option was sought regarding the existing terms and conditions of services of the petitioner mentioned in the letter. Later on another letter to the same effect was also sent to the petitioner on 20. 8. 1974 whereby the petitioner was asked to give option as to whether the petitioner wants to accept the new terms and conditions of the service or would continue on the old terms and conditions. In pursuance thereof on 22. 8. 1974 the petitioner wrote a letter to General Manager, Mawana Sugar Works, Mawana giving here option that she would like to remain with Mawana Sugar Works, mawana on the same terms and conditions of employment. The petitioner did not opt for new terms and conditions of service indicated in the letter referred earlier. Thereafter General Manager, Mawana sugar Works wrote a letter on 26. 9. 1974 to the petitioner in pursuance of her option dated 22. 8. 1974 indicating therein that petitioner would continue under the existing terms and conditions of the service and there would be no change in the existing terms and conditions of service of petitioner. A true copy of letter dated 26. 9. 1974 is on record as Annexure-5 to the writ petition. On 1. 11. 1974 the petitioner wrote a letter to the General Manager, mawana Sugar Works, Mawana mentioning therein that she would remain on the payroll of factory on the same terms and conditions of service. A true copy of the aforesaid letter is on record as Annexure-6 of the writ petition. On 23. 11. 1988 the petitioner was promoted as head Mistress of Shri Ram Primary School, Mawana and on 29. 8. 2001 she was appointed as officiating Head Mistress of Shri Ram Junior High school without any change in the terms and conditions of employment of the petitioner. True copy of the aforesaid letters are on record as annexures-7 and 8 respectively of the writ petition. It is also stated that the petitioner was being paid salary from Mawana Sugar Works, mawana and the last cheque issued to the petitioner after retirement was signed by the official of Mawana Sugar Works, Mawana from the accounts of the factory. A Photostat copy of cheque dated 16. 7. 2002 is on record as Annexure-9 of the writ petition. The petitioner has further stated that she was member of DCM Employees Provident Fund Trust under Mawana Sugar Works, Mawana in which the petitioner's provident fund was deducted from her salary and equal amount was deposited by Mawana Sugar Works, Mawana.

(3.) AFTER retirement of the petitioner on attaining her age of superannuation the respondents No. 2 and 3 did not pay any gratuity to her. In circumstances, the petitioner has approached the Controlling authority under the Act and moved an application on 22. 7. 2002 for payment of gratuity, which was numbered as PGA Case No. 130 of 2002. A true copy of the application dated 22. 7. 2002 is on record as annexure-10 of the writ petition. The employer respondents No. 2 and 3 filed their written statement inter alia alleging that Shri Ram School society, Mawana was running the school and in view of the Supreme court decision a "teacher" is not an "employee" as defined in Section 2 (e) of Act and accordingly a "teacher" is not entitled for payment of gratuity under the Act. The written statement filed by the respondents no. 2 and 3 is on record as Annexure-11 of the writ petition. The petitioner filed her rejoinder affidavit denying the allegations made by respondents No. 2 and 3 in the written statement and reiterated that she was covered by the provisions of Act and was entitled for the payment of Gratuity under the Act. In support of her case the statement of petitioner was also recorded on 17. 2. 2003 before the controlling Authority. After going through the material on record the controlling Authority vide order dated 6. 12. 2003 allowed the application of petitioner and directed to pay the petitioner Gratuity amounting Rs. 1,71,346. 15 with 10% interest thereon since the date of superannuation of the petitioner till the payment is made to her. Feeling aggrieved against the order dated 6. 12. 2003 the respondents no. 2 and 3 filed appeal before the respondent No. 1 on 7. 1. 2004 under Section 7 (7) of the Act, before the appellate authority i. e. Additional Commissioner, Kanpur which was numbered as PGA Appeal no. 5 of 2004. The petitioner has filed objection before the appellate authority. Along with the objection the petitioner filed U. P. State Sugar wage Board Order dated 27. 11. 1970, which was published in the gazette on 27. 11. 1970. According to para 1 (iv) of which the educational staff was covered by the order. According to para 8 all the sugar factories were required to introduce the scheme of payment of gratuity to their employees. The appellate authority has allowed the appeal and set aside the judgment and order passed by Controlling authority vide impugned judgment and order dated 15. 6. 2004 hence this writ petition.