Nafr High Court
Case Details
1 2025:CGHC:16545 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 111 of 2018 1 - Chhattisgarh Diocese Board Of Education, Society Registered Under Society Registration Act, 1973 Having Its Office At Opp. Rajbhawan, Gate No. 1, Civil Lines, Raipur Tahsil And District Raipur Chhattisgarh. Through Smt. Anita Boshat, W/o Shri D. Boshat, Aged About 56 Years, R/o D-9 Sector 3, Devendra Nagar, Rapur Chhattisgarh. Principal (In-Charge) St. Paul Higher Secondary School (Hindi Medium), Raipur, Near Byron Bazar Raipur Chhattisgarh : Chhattisgarh., Raipur, District 2 - St. Paul Higher Secondary School, Raipur, (Hindi Medium) Near Byron Bazar, Raipur, District Raipur (Chhattisgarh Through Its Principal (In-Charge) Smt. Anita Boshat, W/o Shri D. Boshat, Aged About 56 Years, R/o D-9 Sector 3, Devendra Nagar, Raipur Chhattisgarh., District : Raipur, Chhattisgarh --- Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Department Of Finance And Planning, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh : Chhattisgarh., Raipur, District 2 - Secretary, Department Of Education, Mahanadi Bhawan, Capital Complex, Mantralaya, Naya Raipur, District Raipur Chhattisgarh., District : Chhattisgarh Raipur, 3 - Secretary, Department Of Labour, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil, Revenue And Civil District Raipur (Chhattisgarh), District : Chhattisgarh Raipur, 4 - Director, Directorate Of Public Instruction, Pension Bada, Raipur Tahsil, Revenue And Civil District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 5 - The Controlling Authority Under Payment Of Gratuity Act, Raigarh, Office Of Assistant Labour Commissioner, Raigarh, District Raigarh Chhattisgarh., Chhattisgarh District Raigarh, : 6 - District Education Officer, Raipur Pension Bada, Tigore Nagar, Raipur Chhattisgarh : Chhattisgarh., Raipur, District 7 - Tahsildar, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh
Legal Reasoning
8 - K.M. Sharma, S/o Late Shri Dhaneshwar Sharma, R/o Sanjay Nagar, 2 Milan Chowk, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh --- Respondent(s) WITH WPL No. 109 of 2018 1 - M.P. Sister Society Of The Third Order Apostolic Of Our Lady Of Mount Carmel, Society Registered Under Society Registration Act, 1973 Having Its Office At Jagatpur Road, Raigarh Tahsil And District Raigarh Chhattisgarh. Through Sister Jaya Grayce D/o Johan Tirkey, Aged About 55 Years, R/o Carmel School Campus, Jagatpur Road, Raigarh Chhattisgarh Principal, Carmel Girls Higher Secondary School (Hindi Medium), Raigarh, Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 2 - Carmel Girls Higher Sceondary School, Raigarh, (Hindi Medium) Jagatpur Road, Raigarh, District Raigarh Chhattisgarh Through Its Principal Sister Jaya Grayce D/o Johan Tirkey, Aged About 55 Years, R/o Carmel School Campus, Jagatpur Road, Raigarh Chhattisgarh. ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through Secretary, Department Of Finance And Planning, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 2 - Secretary, Department Of Education, Mahanadi Bhawan, Capital Complex, Mantralaya, Naya Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 3 - Secretary, Department Of Labour, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil Revenue And Civil District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 4 - Director, Directorate Of Public Instruction, Pension Bada, Raipur Tahsil, Revenue And Civil District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 5 - The Controlling Authority Under Payment Of Gratuity Act, Raigarh, Office Of Assistant Labour Commissioner, Raigarh, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 6 - The Appellate Authority, Under Payment Of Gratuity Act, Raipur, Officer Of Labour Commissioner, Indrawati Bhawan, Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh 7 - Smt. Iyesabell Barwa, W/o Habib, Barwa, Aged About 67 Years R/o Rambhata, Naya Mohalla, Raigarh, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh --- Respondent(s) WITH 3 WPL No. 108 of 2018 1 - St. Paul Higher Secondary School Raipur (Hindi Medium) Near Byron Bazar, Raipur, District Raipur, Chhattisgarh. Through Its Principal (In Charge) Smt. Anita Boshat, W/o Shri D. Boshat Aged About 56 Years R/o D 9, Sector 3, Devendra Nagar, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Chhattisgarh Diocese Board Of Education, Society Registration Act, 1973 Having Its Office At Opp. Rajbhawan, Gate No. 1, Civil Lines Raipur, Tahsil And District Raipur, Chhattisgarh. Through Smt. Anita Boshat, W/o Shri D. Boshat, Aged About 56 Years, R/o D 9, Sector 3, Devendra Nagar, Raipur, Chhattisgarh. Principal (Incharge) St. Paul Higher Secondary School (Hindi Medium), Raipur, Near Byron Bazar, Raipur, Chhattisgarh. ---Petitioner(s) Versus 1 - State Of Chhattisgarh Through Secretary, Department Of Finance And Planning, Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 2 - Secretary, Department Of Education, Mahanadi Bhawan, Capital Complex, Mantralaya, Naya Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 3 - Secretary, Department Of Labour, Mantralaya, Mahanadi Bhawan, Naya Raipur, Tahsil Revenue And Civil District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 4 - Director, Directorate Of Public Instruction, Pensio Bada, Raipur, Tahsil And Civil Distirict Raipur, Chhattisgarh. Pin Code 492001, District : Raipur, Chhattisgarh 5 - The Controlling Authority, Under Payment Of Gratuity Act, Raipur, Office Of Assistant Labour Commissioner, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 6 - District Education Officer, Raipur, Pension Bada, Tigore Nagar, Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 7 - Tahsildar, Raipur, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh 8 - N. B. Mitra, Shri K. C. Mitra, R/o C Road, Krishnapuri, Near Kurshi Factory, Devpuri, Raipur, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh --- Respondent(s) For Petitioners : Mr. Sourabh Sharma, Adv. along with Ms. Harneet Kaur Khanuja, Adv. For State : Mr. Pramod Shrivastava, Dy. G.A. For Respondent-employees (in WPL No. 111 of 2018 and WPL No. 108 of 2018) : Ms. Rashmi Tandon, Adv. on behalf of Mr. Shamsuddin Mirza, Adv. 4 Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 08-04-2025 1) Particulars of the impugned orders in the above-captioned writ petitions are depicted herein below:- Name of the respondent- employee K.M. Sharma (WPL/111/2018) N.B. Mitra (WPL/108/2018) Name of the Controlling Authority Date of order Controlling Authority under PGA, 1972 -cum- Assistant Labour Commissioner, Raipur Controlling Authority under PGA, 1972 -cum- Assistant Labour Commissioner, Raipur 28.07.2014 29.09.2016 Smt. Iyesabell Barwa (WPL/109/2018) Controlling Authority under PGA, 1972 -cum- Assistant Labour Commissioner, Raigarh 24.10.2017 2) Learned counsel for the petitioners submits that the respective Controlling Authority under the Payment of Gratuity Act, 1972 have passed ex-parte impugned orders against the petitioner-institutions, who are not liable to make payment of gratuity to the respondent employees in accordance with the circular issued by the State of Chhattisgarh dated 07.06.2013 whereby the cut-off date has been fixed as 01.04.2013. He further submits that a circular cannot be given retrospective effect. 3) On the other hand, learned counsels appearing on behalf of the respondents oppose. They submit that the issue involved in the present case is no longer res integra and the Hon’ble Division Bench in the matter of State of Chhattisgarh vs. The President, Managing Committee, Lahari Multipurpose Higher Secondary School passed in WA No. 194 of 2021 and other connected matters has already this issue. They further submit that initially, the petitioners participated 5 in the proceedings before the Controlling Authority but later failed to participate, therefore, ex-parte orders were passed against the petitioners. 4) I have heard learned counsel appearing for the parties and perused the documents placed on the record. 5) Admittedly, the order-sheets of the respective Controlling Authority would show that the petitioners initially participated in those proceedings but later on chose not to continue for the reasons best known to them, therefore, final ex-parte orders were passed. Therefore, in the opinion of this Court, the contention advanced by Mr. Sharma in this regard appears to be incorrect and is accordingly turned down. 6) The Hon’ble Division Bench in the matter of The President, Managing Committee, Lahari Multipurpose Higher Secondary School (supra) has categorically held that the State of Chhattisgarh, by Memo dated 7.6.2013, as a matter of policy, took a decision and volunteered to pay grant which will be utilized for the purpose of gratuity to the employees/teachers who have retired after 1.4.2013, meaning thereby the gratuity for the period from 3.4.1997 to 31.3.2013 will be payable by the private unaided educational institutions from their own funds. The relevant paras 42 & 43 read as under:- “42. As already noticed, in consonance with the judgments of the Supreme Court in Ahmedabad Pvt. Primary Teachers’ Association (supra), the Amendment Act of 2009 brought with retrospective effect from 3.4.1997 and the definition of ‘employee’ was amended to cover up the teachers also. The teachers retired on or after 3.4.1997 as such became entitled for payment of gratuity in accordance with Section 7 6 of the Act of 1972, which led to filing of the application against the private educational institutions before the controlling authority under the Act of 1972 who on such application ordered for payment of gratuity to the employees, which was affirmed by the appellate authority in the appeal under Section 7 of the said Act and thereafter the Finance Department, Government of Chhattisgarh has taken a considered policy decision to make payment of gratuity in shape of grant the employees who have superannuated after 1.4.2013. Thus, the State of Chhattisgarh, by Memo dated 7.6.2013, as a matter of policy, took a decision and volunteered to pay grant which will be utilized for the purpose of gratuity to the employees/teachers who have retired after 1.4.2013, meaning thereby the gratuity for the period from 3.4.1997 to 31.3.2013 will be payable by the private unaided educational institutions from their own funds. to 43. As noticed herein above, the amended definition of Section 2(e) of the Act of 1972 read with Section 13A of the Amendment Act of 2009 was sought to be challenged by the private educational institutions unsuccessfully before the High Courts and thereafter before the Supreme Court in the matter of Independent Schools’ Federation of India (Regd.) (supra) wherein their Lordships of the Supreme Court considered the issue and dismissed the challenge so made and held that the Amendment Act of 2009 amending the definition of Section 2(e) of the Act of 1972 is a valid piece of its application with retrospective date, that is, w.e.f. 3.4.1997, was also not accepted by their Lordships as unconstitutional. It was held by their Lordships that the marginal inconvenience in the form of financial outgo or difficulty is of little weight, when curing of an inadvertent defect is made retrospectively in greater public interest, which consideration will overrule the interest of one or some institutions. Their Lordships found little merit in the challenge also for the reason that the observations made in Ahmedabad Private Primary Teachers’ Association (supra) in legislation and 7 is dated 3.4.1997, paragraph 26 were sufficient to indicate that a legislation should intervene to grant the benefit of gratuity to teachers. It was further held by their Lordships that the contention that the private schools were sure to succeed as to deny the teachers the benefit of the Notification No. S- is 42013/1/95-SS.(II), questionable and far-fetched to be accepted. The law is subject to uncertainty ex-ante when two or more views are possible, but there may be certainty ex-post litigation in view of the law of precedents, which reduces uncertainty. It was further held that a secondary argument on behalf of the private educational institutions that they would be liable to pay gratuity for a period of service prior to 3.4.1997, and, therefore, the amendments are unconscionable and tyrannous, is equally fallacious for several reasons. That the argument of unreasonableness and that the amendment financially confiscatory, predicated on past liability, which may predate the notification effective from 3.4.1997, apart from the other reasons, is to be rejected as there are upper-cap limits on payment of gratuity. Therefore, though gratuity is computed with reference to the years of service, in view of the upper-cap limit, the payment towards gratuity cannot exceed the specified amount, even if the employee would be entitled to higher amount in view of the years of the service rendered to the employer. Further, highlighting the object of the Amendment Act of 2009, their Lordships held that in the present case, the notification No. S42013/1/95- SS.(II) dated 3.4.1997 had ensured that the benevolent provisions requiring payment of gratuity should be extended to the “employees” of the educational institutions. The amendment with retrospective effect is to make the benevolent provisions equally applicable to teachers. The amendment seeks to bring equality and give fair treatment to the teachers. It can hardly be categorised as an arbitrary and highhanded exercise. Finally, their Lordships held and directed that the private schools to make payment to the employees/teachers along with the interest in accordance with the 8 provisions of the Act of 1972 within a period of six weeks and in case of default, the employees/teachers may move the appropriate forum to enforce payment in accordance with the provisions of the said Act.” 7) According to the judgment passed by the Hon’ble Division Bench, the petitioners would be liable to make payment of the amount of gratuity to the respondent-employees for the period from 03.04.1997 to 31.03.2013, therefore, in the opinion of this Court, no case is made out for interference. Consequently, these petitions fail and are hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.04.09 14:42:54 +0530