IMPORTANT POINT
The court established that the definition of 'employee' under the Payment of Gratuity Act includes the petitioner, entitling him to gratuity despite state claims of exclusion.

JUDGMENT :

KSHITIJ SHAILENDRA, J.

1. Heard Shri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The petitioner was appointed on the post of lecturer in 1982 in an aided educational institution. Thereafter, pursuant to the process issued for appointment on the post of Principal, the petitioner applied and was appointed on the post of Principal on 23.10.2002.

3. The date of birth of the petitioner being 5.11.1959, when he reached age of 50 years in 2009, he opted for voluntary retirement after completing the length of service of 27 years, 9 months and 28 days. The voluntary retirement of the petitioner was accepted by the authorities.

4. While the retirement dues of the petitioner were not being paid, petitioner filed Writ-A No. 58376 of 2010, which was disposed of by this Court vide order dated 22.9.2010, whereby the Joint Director of Education, Saharanpur Region Saharanpur was directed to consider the grievance of the petitioner with regard to non-payment of his dues. Pursuant to the order dated 22.9.2010, passed by this Court, the Joint Director of Education, Saharanpur, passed an order dated 9.12.2010, whereby the payment of pension to the petitioner was granted, however the gratuity was refused. Thereafter, the petitioner filed filed P.G. Case No. 2 of 2012 before the Controlling Authority under the Payment of Gratuity Act, 1972 (herein after referred to as 'the Act, 1972'). The said authority vide order dated 6.9.2013 directed the respondents to pay a sum of Rs. 6,46,041, as the amount of gratuity to the petitioner.

5. Challenging the order dated 6.9.2013, the State filed Writ-C No. 5108 of 2014, which was dismissed by this Court vide order dated 27.1.2014 on the ground of availability of alternative remedy by filing statutory appeal.

6. Thereafter, the respondents filed P.G.A. Appeal No. 2 of 2014 before the appellate authority under the Act, 1972, which has been allowed by the impugned order dated 3.12.2015.

7. This petition was filed in the year 2016 and during the pendency of the writ petition, an affidavit was filed on behalf of respondents annexing therewith another order dated 11.9.2020, whereby the Deputy Director of Education (Intermediate), Saharanpur Division Saharanpur again denied gratuity to the petitioner by placing reliance upon Government Order dated 29.8.1981. The petitioner by means of an amendment application challenged the order dated 11.9.2020. The amendment application was allowed and, therefore, the said order is also under challenge.

8. Shri Siddharth Khare, learned counsel for the petitioner, submits that the order impugned is based upon wrongful interpretation of Section 2 (e) of the 1972 Act and authority has taken a wrong view that the petitioner falls within the exclusion clause of the definition 'employee', as he is an employee of the State Government. Shri Khare further submits that another ground taken for denying the gratuity to the petitioner is applicability of Government Order dated 29.8.1981, which, in fact, does not apply in the case of the petitioner. He further submits that even the subsequent order dated 11.9.2020 is based upon same proposition of the applicability of the Government Order dated 29.8.1981.

9. Shri Khare has referred to the definition of 'employee' as contained under Section 2 (e) of the Act, 1972, which reads as follows:

“(e) “employee” means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, plantation, port, railway company or shop to do any skilled, semi-skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, 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 for payment of gratuity.”

10.