Provisions applicable to unaided institutions also.

Heard the learned counsel for the parties.

2. This Writ Petition has been filed by the Habibia Girls Primary School, against the order passed by the appellate authority, under the Payment of Gratuity Act, 1972, confirming the order of the original authority, directing that gratuity would be payable to respondents 1 to 6, by calculating on the basis of their initial appointment and not from the date, on which the school became recognised and aided.

3. It is the contention of the petitioner that, before the school was recognised and aided in the year 1989, Madrasa, being a charitable institution, was imparting discourses relating to Holy Quran to poor muslims and the school was established for the first time in the year 1989. This is a factual aspect, for which there is no material adduced before the original authority or the appellate authority.

4. It is, of course, true that the original authority had decided the matter exparte, as the petitioner had not appeared. Even before the appellate authority, no concrete materials had been adduced, in support of such an assertion and the appellate authority came to the conclusion that the school was being run from the year 1972. This being a factual conclusion, there is no scope for interfering with the conclusion arrived at by the appellate authority.

5. The next contention of the petitioner is to the effect that the present school is not an establishment within the meaning of the expression, as contained in Section 2 of the Payment of Gratuity Act, 1972, nor is it an establishment within the meaning of Section 1 (3) and, therefore, the Act is not applicable.

6. Section 1 (3) of the Act indicates that the Payment of Gratuity Act shall apply to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months.

7. Learned counsel for the petitioner has contended that the school cannot be characterised as an establishment within the meaning of such expression, as defined in Industrial Disputes Act and, therefore, the Act is not applicable. For the aforesaid purpose, learned counsel for the petitioner has placed reliance upon a decision of the Patna High Court reported in 1999 Labour Industrial Cases 365 (Ved Prakash Pathak Nirala v. State of Bihar), wherein the High Court confirmed the order of the appellate authority, under Payment of Gratuity Act, holding that a school was not coming within the expression 'establishment' and teachers cannot be considered as workmen.

8. Even though such decision supports the contention of the learned counsel for the petitioner, I am afraid, such contention cannot be accepted. The reference under Section 1 (3) is to "establishment" within the meaning of any law for the time being in force in relation to establishments in a State. The other requirement is that in such an establishment, ten or more persons are employed. There is no dispute about the latter aspect.

9. The only dispute is relating to the question as to whether the school is an 'establishment' within the meaning of such expression, as used in Section 1 (3). So far as this point is concerned, the question is no longer res integra, so far as this Court is concerned.

10. In a decision reported in 1992 (1) LLJ 91 (The Management of SIET Women's College, Madras. v. Mohamed Ibrahim and Others), a Division Bench of this Court after referring to several decisions, considered the question, relating to applicability of Payment of Gratuity Act to educational institutions, namely, SIET Women's College, governed by SIET Trust, and categorically held that such Act is applicable. Relying upon the fact that such an educational institution is an establishment within the meaning of Employees Provident Funds and Miscellaneous Provisions Act and within the meaning of Tamil Nadu Payment of Subsistence Allowance Act, Justice M.Sriniv