The main legal point established in the judgment is that the teacher was entitled to claim gratuity under The Payment of Gratuity Act, 1972, and the Repealing Act did not affect her right to do so.

JUDGMENT

Raja Basu Chowdhury, J. - The principal question for consideration in this writ application is whether the respondent no. 6 (herein after referred to as the private respondent), who had been engaged as an Assistant Teacher in the Central Model School, Barrackpore, upon her superannuation on 31st July, 2019, can maintain her claim for gratuity in terms of the provisions contained in The Payment of Gratuity Act, 1972 (hereinafter referred to as the said Act).

2. The writ petitioner no.1 is a reputed English Medium School, affiliated with the Central Board of Secondary Education (CBSE). Admittedly, the private respondent joined the school on 19th June, 2012 as an assistant teacher and was superannuated from service on 31st July, 2019. On superannuation, the private respondent applied in Form-'I', on 12th December, 2019, to the petitioner no.1 for disbursal of her gratuity claim as per the provisions of the said Act. Since the writ petitioners did not disburse the gratuity, the private respondent filed an application in Form-'N' with the Controlling Authority under the said Act. The writ petitioners did not contest such proceedings. By an order dated 18th February, 2021, the Controlling Authority determined the amount of gratuity payable to the private respondent. A notice in 'Form-R' was issued by the Controlling Authority, calling upon the writ petitioner no.1 to make payment of gratuity, to the private respondent. The writ petitioner no.1 instead of making payment of gratuity to the private respondent, deposited gratuity as determined, with the Controlling Authority and preferred an appeal which was registered as Case No. G-A-2 of 2021.

3. One of the contentions urged by the writ petitioners before the Appellate Authority was that the private respondent did not qualify, for being entitled to gratuity. The private respondent was a teacher, she does not come within the meaning of 'employee', as defined in section 2(e) of the said Act. Consequentially neither she is entitled to claim gratuity, nor can she maintain her claim before the controlling authority, for the controlling authority to determine the amount of gratuity payable to her. The Appellate Authority, however, by its order dated 16th June, 2022 refused to interfere with the order passed by the Controlling authority and dismissed the appeal.

4. Being aggrieved, the present writ application has been filed.

5. Mr. Ray learned advocate representing the writ petitioners by placing reliance on the provisions of the said Act, submits that the private respondent does not come within the meaning of the word 'employee' as defined in section 2(e) of the said Act. It is contended on behalf of the petitioners that the original definition of an 'employee' within the meaning of the said Act had been substituted by the Payment of Gratuity (Amendment) Act (No. 47 of 2009), with a retrospective effect from 3rd April, 1997, so as to include teachers within the ambit of the said Act. Still later in the year 2016 the Government of India, Ministry of Law and Justice by publishing a notification in the gazette of India on 9th May, 2016, has enforced the Repealing and Amending Act, 2016 (hereinafter referred to as the 'Repealing Act'), whereby the enactments specified in the first schedule thereof have been repealed to the extent mentioned in the fourth column thereof. Drawing attention to the fourth column of the first schedule of the aforesaid Repealing Act, he says that the whole of the Payment of Gratuity (Amendment) Act, 2009 has been repealed and as such the private respondent, consequent upon the aforesaid repeal, can no longer be considered an employee, within the meaning of the said Act.

6. By placing reliance on a judgment delivered by the Hon'ble Supreme Court in the case of Ahmedabad Pvt. Primary Teachers' Association -Vs. - Administrative Officer and Others. [Ahmedabad Pvt. Primary Teachers' Association v. Administrative Officer and Others., (2004) 1 SCC 755.], it is submitted