The main legal point established in the judgment is that the Payment of Gratuity Act, 1972 applies to the service rendered before or after the commencement of the Act, and an employee is entitled to gratuity based on the interpretation of the relevant provisions.

K.K. Tated, J.

1. Heard the learned Counsel for the parties.

2. This. Civil. Application is preferred by the original respondent for allowing her to withdraw the amount deposited by Petitioner with Appellate Authority under the Payment of Gratuity Act, 1972.

3. A few facts of the matter are as under:- By this Petition/under Articles 226 and 227 of the Constitution of India, the Respondent No. 1-original petitioner, challenges the orders dated 29th July, 2003 and 6m October, 2007 passed by the Controlling Authority under the Payment of Gratuity Act, 1972, directing them to pay a sum of Rs. 1,78,234/- to the Applicant towards gratuity amount.

4. Being aggrieved by the said orders, the Respondent No. 1-Original Petitioner preferred present. Writ Petition. The Writ Petition admitted on 17th December, 2007. At that time, ad-interim relief granted in terms of prayer clauses (c) & (d). At that time, the Apex Court in the matter of Ahmedabad Private Primary Teachers Association v. Administrative Officers and others, 2004 (100) FLR 601 held that the definition of employee u/s 2(e) does not cover the teachers. Therefore, on this limited point. Petition was admitted. Subsequently, the Government amended definition of "employee" under Payment of Gratuity Act, 1972 which reads as under:

employee means any person (other man an apprentice) who is employed for wages; whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing payment of gratuity.

5. The said amendment comes into force with retrospective effect from 3rd April, 1997. As per the amended provision of section 2(e), a teacher also falls within the definition of employee. The learned Counsel appearing for the Applicant submits that in view of the amendment of section 2(e), nothing survives in the present Petition. He further Submits that originally, Applicant was appointed as Assistant Teacher on 12th June, 1978 and, therefore, the said-provision is applicable to the teacher on that date. In support of his submission, he relied on the judgment in the matter of Grindwell Norton Ltd v. N.L. Abhyankar and another. 1980 (40) FLR 53. In this authority, the Apex Court held that the reading of relevant provisions clearly indicates that the period of employment to be taken into consideration for the purpose of determination of the amount of gratuity is not restricted only to the period subsequent to the coming into force of the Act, but the period of employment prior to that date has to be taken into consideration. The relevant portion reads as under:

Section 4 is charging section and it provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, and the termination of the employment is either by superannuation, retirement or resignation, of his death or disablement due to accident or disease. This section requires that employee must have put a continuous service of 5 years for entitlement of gratuity under the Act and the term "continuous Service" have been defined u/s 2(c) of the Act. Relying upon this provision Mr. Khambatta submitted that on the date of coming into force of the Act, i.e. September 16, 1972, the respondent was not an employee as he was drawing wages in excess of Rs. 1000/-. The submission is that the employee is entitled to gratuity provided his wages are less man Rs. 1000/- on the date when the Act came into force. It is not possible to accept the submission of the learned Counsel. The President of the Industrial Court has relied upon the definition of 'continuous service' u/s 2(c)-of the Act and provisions of se