The relationship of employer and employee cannot change due to external funding, and liability for gratuity under the Gratuity Act remains with the employer. The court's order for enforcement of the gratuity payment highlights the importance of upholding employee entitlements under the Act.

JUDGMENT

G.S. PATEL J. - Rule. There are Affidavits in Reply. Rule is made returnable forthwith and the Petition is taken up for hearing and final disposal.

2. Prayer clauses (b) and (c) of the Petition at page 16 read thus:

"(b) that by issuing a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, the Respondent Nos. 1 to 3 hereinabove be directed to take appropriate coercive steps against the Respondent Nos. 4 and 5 hereinabove for not following the order dtd. 23/10/2019;

(c) by issuing writ, order or direction the Respondent Nos. 4 and 5 hereinabove be directed to forthwith pay an amount of gratuity with 15% interest to the Petitioner."

3. The 4th Respondent is the Trust which runs the 5th Respondent-Institute. Respondents Nos. 1, 2 and 3 are State authorities.

4. On 4/2/1975, the Petitioner was appointed as a junior clerk by the 5th Respondent-Institute. He worked with the 4th Respondent-Trust in the 5th Respondent-Institute occupying different posts at different times, until he finally retired from service on 31/5/2009, when he most latterly held the post of the Registrar of the 5th Respondent-Institute.

5. The 5th Respondent is a government-aided polytechnic entirely controlled by the 4th Respondent-Trust. The Trust has other educational institutions from Montessori to higher technical colleges. It also has a state-level training centres and so on.

6. By a Government Resolution ("GR") dtd. 28/2/1985, the State Government, referencing the Maharashtra Civil Services (Pension) Rules, 1982 introduced a pension scheme for retiring employees i.e., those retiring from 1/10/1982. These employees were given an option to be exercised before 31/3/1986; but once exercised, that option could not be changed. One option was for an employee to select a Contributory Provident Fund ("CPF") scheme. The Petitioner submitted a form on 9/12/1985 exercising this option. It is true that the Writ Petitioner challenged this GR in Writ Petition No. 3796 of 2011. That challenge failed. So did a Special Leave Petition.

7. After these legal challenges failed, the Petitioner submitted an application on 20/3/2015, seeking a disbursement of his gratuity with interest at 15% per annum since 31/3/2009.

8. The 5th Respondent-Institute forwarded this to the 2nd Respondent, the Director of Technical Education on 1/4/2015. There was no dispute about the entitlement to gratuity. The question was who should make that payment. The Joint Director of Technical Education, Pune Region, processed the Petitioner's application and sent it on to the Director of Technical Education. The 5th Respondent-Institute sent a reminder on 30/6/1975 regarding the gratuity payment. Then the Petitioner learnt, in response to an RTI query, that since the Petitioner had opted for the CPF, it was the 4th Respondent-Trust or the 5th RespondentInstitute that would have to make the payment of the Petitioner's gratuity. The Joint Director of Technical Education by his communication dtd. 30/10/2015 told the Institute that the Petitioner was not a participant of the General Provident Fund ("GPF"). Being a member of the CPF, his contribution was being deposited at the institution level. Since the CPF amount was deposited in the joint account of the institute and the employee, the payment of gratuity had to be processed by the 5th Respondent through the 4th Respondent and was not the liability of the State Government, Respondents Nos. 1 to 3.

9. The 5th Respondent by communication of 6/2/2016 to the Petitioner said that it had no liability to pay this gratuity. The reason given was that it was the Director of Technical Education wgi had passed orders, including of appointment. The option form had been submitted to the Government. According to the 5th Respondent, therefore, it was the Government that bore the sole responsibility for the payment of gratuity. A copy of this communication of 6/2/2016 is at Exhibit "G" to the Petition.

10. This brought the Petitioner to Court