Shri Rajeev Shnvastava, coimsel for respoadent no.l v. AdministrcHiw OJSRcer a»Mletfaers (200^ 1 SCC 755, fhere&re

Shri Viueet Kumar Pandey, counsel for fhe petitioners. Shri Rajeev Shnvastava, coimsel for respoadent no.l. JUDGMBMT (oi.8.ao(») Snnfl KlUIUU S<ln^*ni J. (1( A short but importaat question artees for consideratton in this wnt petition as to whefher a pxiacipal of fhe aidcd non- govemmcnt Educatfonal Institutton is aa "eiaployee^ within the laeaniag of section 2(e) of the Payinent of Gratuity Act 1972 (hereinafter referred to as "fhe Acf) aad the benefit of the Paymeat of Gratuity caa be extended to hinu or iiot ? (8( Petitioner No.l is fhe AdminMtrator and Petitioaer No.2 is thc Priacipal, Lahidlii Miilt^urpose Higher Secondary School, Chirfnuri, Distfc Korea (C.G). This is a non-govemmental aided hjgher secondary schooL The case of the petitioners is that late Roopnarayan Chatiuved -was appointed in fhis institutiou on

20.7.1966. Hedicdduriagscnriceoa 21.9.2001. Hiswifenamdy Smt. Vidyavati Chatiuvcdi, respondent no.l herein, inaic an appUcation for Paynaent of Gratuity befiire fhc managemcnt of tihe •z- iastitution but the sazae was dismissed. Thereafter, she inoved to the ControBmg Authority under the Payment of Giatuity Act and the said authority passed his ordcr dated 31.1.2004 aad awarded a sum of Rs.1,99,298/- as the amount of gtatuity pqrabte to respond eat no.l. The contention of the pctitioncrs is that since thc deceased was a 'teacbe^' ta their institution, fherefore, hc is not aa ''employee* within thc nicanuig of the aforesaid Act, EUS such, no benefit ofpaymcnt of gratuity can be extended to his tegal representative (respondent no.l.) aiid the appllcation before the controBing aufhority was not mamtainable. The controUuag aufhority erred ia law ia exercasiag jiirisdictfon itiidcr section 4 of fhe aforesaid Act and fhe order passed by controlting aufhority shouM be quashed.

(3j Reply on behalf of respondent no.l has bcen filed. It is contended by respondent no.l that her husband was uutiatfy appoiated as a teacher in the said uistitution in the year 1966 but he was proinoted to thc post of Principal by thc inanagement vKle oricr datcd 01.3.1989 and the aforesaid order ofthc xnanagement was approved aad confinned by the compctent aufhority of the Govenunent vide oider dated 06.11.1989. Copfes of these two orders have been placed on recoid as Annexures R-l/1 and R-X/2. is contended by her that the principal of an aided aon- It govcmment educatioiial institution is an ''employee' wifhia the meaiimg of Sectfon 2(e) of the Payment of Oiattuty Act 1972 and he wiB be entitted for fhe benefits of gratiuty under the law. By way of fiting rejomder the pctitioners have conteiided that fhough fhe deceased was working as a F>rincipal, but he hiinsclf had fited ''' c- an application dated 14.12.1996 before tte Rresident that he ia res^nii^ fiom the post of Prmcqwl and hc can serve the institutioa as a teacher in Ei^ish.

Thcy have submitted the copy of the res^nation letter as Anncxure P-3. They have also contended vjde para 2 of tfae rejoinder that at the time of hoMing fhe post of Principal, fhc deceased was also taking 3 periods of Engtish subject in dififerent classes daify, fherefore, the dcceased was doing fhe work ofa teacher ateo. They have annexed copy of the tiine-table as Annextire P-4. There is an cndorseineat in. flic aforesaid resignatioa fetter dated 14. 12.1996, "to bc put before the Maxiaging Comnuttee''. No documeats in. relation to fbe acceptance of this lctter has been filed nor it bas beea pfcaded fhat the resignation was accepted aad fhe deccased afier resignation finin the post of Rrincipal was workiag as a teacher in the said institution. (4) So far as respondent no. 1 is conccmed, she placed her claiia before fhe coatroDing authority as has been stated hcTemabove, but the petitioncrs though caused fhcir appearance did not fite any written steteiacnt to the aforesajd clainus inade by respondent no.l.

The contooUiDg authority exammed respondent no.l who supported her contentions in her stateiaent One Shri P.S. Khedwarlcar was examined for the inanagenient who stated that fhe Managing Committee of fhe institution has been dissolved and fhe new Maaagu^ Committee can on]y consider fhe casc of respondent no. 1. (5| Ater analysis of the evidence and documaite produced by both the pardes, fhe controUn^ authority by the impugncd oxder ^ dated 31.1.2004, caiac to the conclusion that the deceased namcly Roopwaxayan. Chatiuvedi was an "employee" of educatfonal mstitution fiom 20.7.1966 to 21.9.2001 on the post of Lecturer aad Priacyial, therefore, he was entitled &r payment of gratuity and his wife shaB be entitted to a sma ofRs. 1,99,298/- as the amount of gratuity. It is this order of the contoolling authonty which fa uodcr chaUenge in fhis writ pctition. (6) I have heard teamed counsel &r thc parties at length and have also perused the records fited along with the writ petition.

(7) Afler going ttuoiigh the writ petition, retum, Bejoinder aiul the nnpu^aed order of fhe contro. Bing aufhority it woiild appcar fhat the deceased was appomted as teacher in fhe year 1966 aad fhcreafter he was proiaoted as Principal on 01^.1989 imder the piovisions of Thc HLP. A^wslelya SMk^tan Sansttut ^Schooton Mete Kiaryuvt Adhy<yMka»n Tatha Anya SOiiniuiehartyon Kt Padtonnat^ Niysm. 1988. His promotion was confiinned by die coaapetent aufhority of fhe State vide an order issued by fhe Diiiectorate of Public Bducation, M.P., Bhopal on 06.11.1989. Therefore, it is clcar fhat the deceased was wcB-king on the post of Principal siace 01.3.1989. Though a plea befcre this Court has been taken by the petitioners iu rejoinder that the deccased Roopnarayan has tendered his resignation and had applied for semng fhe mstitutioa as a teachcr in EttgUsh on 14.12.1986, but nothiag has been pteadcd by the petitioners anud no documeats have been placed on recoid, either bc&re this Court or before the controlting authority, to show that his resiguation fix>m the post of Prfacipal was accepted and in fact he was workmg as a teacher in s" the said institution.

The petitioncrs have tried to show by fiting the timc-table that he was taldng soinc classcs of English in fhe iastitutton but fhey have not showa that he was taldng the classes ia the capacity ofa teacher onfy. On the contrary their pleading is that at the time of holding the post of Principal, the deceased was taktag the classes of English also. To substantiate, a copy of the time-table has been annexed as annexure P-4. Ifwe examine the conteate of fhis document, it would appear fhat fhis is fhe tiine tabfc of academic session 2001-2002, that means accordiag to (he pleadiiigs off he petitioners vide para-2 ofthc rejojnder it would be their admission that the deceased was worldc^ as a Principal ia the academic session 2001-2002 aiid along with the work of F'rincjpal, Iie was also takiag English classes in the institution ia fhe said academic session of 2001-2002. Admittedty, fhe deceased has died on 21.9.2001.

Therefore, it can easity be inferred that according to the adBaissions of the petitioners ia fheir rejoinder the deceased was worldng as a F>rincyal at tfae tune of his dcatfa. (8) Retenittg to the provistons of Section 2(a) aad 2(h) of The JHindhjfu Pradesh Ashvsldya School Waiyaman AUria^uun, 197S. (heremafter referred to as the Adhiaiyam 1975"), leamed couasel for the petitioners argues that the Principal shatl be included within the lueaning of a 'Teachei' and the teachers have iiot been held to be the ''einployees* withia the meaitmg of section 2 (e) of the Payment of Gratuity Act 1972 by the Apex Court in the matter of Ahmf'StfbwS JP»t.^_Krt»wni Tteochers Assn. -Vs- AdministrcHiw OJSRcer a»Mletfaers (200^ 1 SCC 755, fhere&re fhe deceased who being the Principal of the mstitution was covered A^ under the defiiiition of fhc teachcr aad his wife shaU not be entitled for P&yment of GTatuity under the Act of 1972.

I have coiisidered fhe aipunents advanced by leamed counsel for the petitioners. Scction 2(^ and 2(h) of the - Madhya Pradesh Ashaskya School Vniyamaa Adhuuyain, 1975 aure quoted as zuiden "2(a| "Teadier" tacladw tlie Head ofa •chool; api) "Head of a Scfaool*' meaaa the iwinclpd academlc otBcer, by wltatewer aame called, of a recognized school" The word ''employee" as defined in section 2(e) of The Paymeat of&atnity Act 1972 reads as unden 2(e) 'eiaployee^ ineaas aay person (of her tfaan an apprenttee) emptoyed on n^ges, ia any establishment, factoiy, mine, oilfield, plantation, port, laihway conipany or shop, to do any ddUed, semi-skiUcd, or unskilted, xnanual, supervisoiy, techaical or clcrical work, wbethcr the terms of sucli employment are express or implied [and whether or iiot such person is eaiployed in a managerial or admmisteative capacity, but does not iaclude any such person who hoMs a post the Central Qcwcrmnent or a State Qovenuaent and is govemed by any of her Act or by any rules pioviding for paymeat of gratuity.

" (9) Wlule dealing wifh fhe Matter of Ahmadabal Pvt Primary Teachers' Assn. (supra) &r their entitleiacnt to tfae payment of gratuity, fhe Apex Court has held that "flus Act 1972 is a piece of social welfare legislatioa and deals with fhe payinent of gcatuity which is a Idnd of retrial benefit like pension, provident fiuul ete. Gratuity ia its etymological sense »a gift, especialty for semces rendered, or retura for favoiirs received. For thc wage-eamiiig popiilatkiii, securily of income, when fhe worker becomes old or / c y- iafirm, is of consequential importancc. The provisions oontained in fhe Act are in the nature of social security measures Uke eiuployment insurance, provident fund and pcnsfon. The main purpose and coiicept of gratuity is to help fhe worlcman after retireinent, whefher retireinent a result of supeTauauatton or physical disableiiieat or impairmeat of vital part of the body.

The expression "gt'atulty'itself su^ests tfaat it is a gratuitous payment given to an employee oa dischar^, superannuation or death. Gratuity is an aiaount pajd uncounected with any coasideration and not restiag upon it, and has to be considered as soinethmg pven fi'eely, voluntanly or without recompcnse. Itis a sortoffiBancialassistance to tide over post-retiral Iiaadslups aud iaconveiuences.'' (10) For determinmg aa to whefher the teachers were included within the ineaamg of eaiployee uiider the aforesaid Act, the Apex Court took fhe aid of of her statutes dealuig with the same subject inatter for consideratfon of provisions in fhis stetute on the doctrine of ''pari mccteria' aad ou a comparisoa of dcfinition of "workcastii" in. sectfon 2 (s), ladustrial Disputes Act 1947, aad fhe defiiiition of "einployee" in sectk>a 2(^, Miaimum. Wages Act 1948, Sectfon 2(13), Payment of Bonus act 1965 and sectfoa 2(f), Eiaployees Provident Fund aud MisceUaaeous Provisions act 1952 hdd fhat eveu on a plaia constmuction of the woiris aad expiessions used in the dcfinition clause 2(e) of the Act, teachers who are mamly eiaptoyed fbr unpartu^ education are not entitted to be covered for extendixig gratuity benefits under the Acfc The Apex Court held in this inatter that the "teachers" do not aaswer tfae description ofcinployees'' who are 'skiUed", ''seini-skiBcd'' or ''uaslaUed".

These three words used in association with each other intend to convey that a person who is "unskiUed" is one and who is not skiUcd and a person who is ''semi-skilled1' may be one who falls between fhe two categories meaning fhat he is neither fully skiUed nor unskiUed. The contention raised ia the said naatter fhat the teachers should be treated as includcd ia the expression "unskiUed" or '"skiUed" was not accepted by the Apcx Coiu-L It has been furfher held by fhe Apex Coiut that the teachus are also not eiaployed ia fhe 'maaageriaf' or 'adininistratwe'* capacity. OccasionaUy, even if they do some admuustrative work as part of their duty wifh teaching, siace their maia job is impartmg education, fhey caxinot be held to be employed iu tfaje ''aaaaagerial or ''admmistrative" capacity. Therefore, fhe Apex Court held that fhe teacheis are clearly not intended to be covered by the defiiution ofem.ployee".

(11) It is in Vyfit of the above decfaion tbat leamed counsel for the petitioners subinits that siace fhe deceascd was alao a teacher as the word "teacliei* iised ia the aforesaid Adhiniyani of 1975 includes the Head of flie School which has been defined to meaa "Principar, ftiere&re, the Principal shaU also be mcluded in fhe defiiution of teacher and as per the enunciatiou of fhe Apex Court in case of Ahmedabad PvtPrimaiy Teachers Assn. (supra) tfae priacipal will also not be entitled for p-atuity. The ai^uments advanced by leamed counsel for the petitioners is misconceivcd. The deEnitiDn of tfae teacher in the said Adhiufyam of 1975 is restrictedforfhepurposesofthatAdhinyamonfy. This definition '/ lc^- of "teachei^ inay ixiclude the Principal thereia, but it does not inean fhat a person who fa worfcmg as a Prmcipal and included in the definition of a teachcr &r the purposes of this particular Act 1975 shall uot be deeincd to bc an ecaployee wifhin the ineaiung of The Payment of Gratuily Act 1972.

The deftniUona of certain worOs tmA ccpresstons used elseu«here ia the ftud^ <^' tfte stutute arc common^jf foa.nA In. the deJViiiUon. elmise of the •Stutute. e iriffect of sueh a deftidSSan ia to fwoUt tfie neeesstty offlvyuemt repeWlons te descrBWng atl the subjeet matter to tuftteh tfte uwrd or oqpresstoa so deflmed Is iwtended to tgyly. A OeJlnWon seetton nwy borrow dieflnSUon frwm. <m. eorHer aet wut tfce deflnitlons ao tomrowed mxy fWt necessarOy Ae tn the «te/2nffton sectlon bwt may be 1n aome other pnwrfston of the earUer Acfc A de^bittton Iwrrwwed fl^ Incorporatton w reference may be some tSmes fvuMtt. in ttke ndes made under tte re/erreA statute. WIwn a uwrd is dejlned to 'mewi' su.ch fmA sueh, the d^/lnitton ispriawfaeie restrteUpe <»ndexhaustloe. Whereas, where ffae uwnt deflned la dectared to 'iiuOude' swsh fmO. such, the d^Inttton isprtnus. cactenstoe {Plxaae /wteciptes of iStatatwg? taterxwetcttlon hu JusOce G.P.Wnah. ff* EStt»n1996.

Pa.ia4. 12S & 12Q. Therefore, the definition of the woni 'teacher' used in the Adhimyam of 1975, which mdudes the Headmaster of the ineaus the 'priacipal academic ofiBcer' is an extensive School defiuition so as to iaclude tbe 'priacipal' ia it, but if we exanune the defiaition of employee mentioned in the Payiaent of Gratuity Act 1972, it would appear that this defimtion is pmna facie -'' / l.-'~ ."-^ restrkrtive and exhaustive. It starts with tfae words "einployee means aay person" aud fhen it expresses maay categories of einployees wifh a furfher e?epression of "whefher or not such person is employed in a ''tnatiageriaT or ''adnmusteative" capacily. In the said situation, the woxds used m thc definitioa of employee" ia fhe Act 1972 is to be given a restrict we nieamng and, therefore, the xaeaaiag of word "eiaployee" in various scctioiis of fhe Act wiU be the m.eaiiiug which has been given iu fhe defiaition clause alone and fhe ineaumg and expression Smsi of her enactments caunot be borrowed to bring or to oust a particular person fix>m the dejBiutton of the ''einployee' given in ttus Act (12) The Apex Court while dea]in® fhe daove inatter has particularly held about tfae teachers that even if aB fhe words used ia the defuutioa clause of the Act 1972 are read disjimctfvdy or in any other inanner ''tcained" or '"untrained" teachers do not plamly auswcr any of the descrqitions of the nature of various employees It has been hdd fhat "trained" or gwen in fhe defmidon clause. ''uutramed" teachers are not ''sldBed*, "semi-skiBed1' or "uaddUed", maTiiial, supemsoiy, tecluucal or cleAal exnployees.

It is further hdd that they are ateo aot eiaployed in mnnagerial" or "arl mmjstmtwc* capacity. OccasJoaaBy cven if they do soiae admmistratiye work as part of their du<y with teactung, sincc thcir inaia job is imparta^ education, they cannot be held eiaployed ia "Baan^eriar or "adinnustrative'' capacity, fhcrcfore, SoaQy fhe Apex Court held that the teachers are clearly not mtended to be covered by tbe definitfon of employee". (13j If we exam me aad anatyse tfae case of the Principal on the basis of the ab^ve enunciatiotis aiid princq>les of law, it would appear that a Priacipal is a head of the iastitution aad his service character is dififerent thaa the service chaiacter of a teacher. Though the principal inay aot be said to be engaged in sMUed, semi-skiBed or unskilled, manual or technical or cterical work, he is always engaged ia supervisoiy work in fhe ''manageriaf or ariministrative' capacity, One of the examples is that the Head of fhe Iiistitutiou has been defined as fhe Enqiuxy Officer uader Rule 7 of The SLP. Ashashldya SMkshan Semstha.

(Adhyapakon Ttttfta Anya KmramehculyoiUeo Padachyut aune Sewa Se flatane SambcmiShl Prakrtys^ Myam, 1983 m. case of a departmental enquuy of aa employee of thc said institution. The case msy be, like the present one, fhat the Principal is occasionally doing tfae job afteachixig but siace his main work is of supemsory nature aad tfae character of work is not onfy imparting of education but also is of managerial aad adaninisteative, it indicates that hc is an emplayee wifhin fhe meaaing of sectioa 2(e) of the Paymeiit of Gratulty Act aad his case is distinguishable &oaa. thc case ofa teacher. (14| Accordmg to the priaciples of statutoiy interpretation referred to above, since for finrling out the meaiung of flie word emptoyed ia vanous sectioas of the Act the meaning to be ordioanly gn^cn to it is that given in the defiaition clause, thcrefore, even if the principal is induded ia fhe defiiiittoa of teacher in other enactments aad the teachers have been excluded Smm. the definitk>u of the employees as per llie enunciatfon of tte Apex Court - in casc of Abnaedabad Pvt Pmnaiy Teachers Assn.