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2023 Supreme(Online)(MP) 1203
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 8th OF FEBRUARY, 2023
WRIT PETITION No. 28813 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. SUNITA BHATIA W/O SUDHIR KUMAR
BHATIA, R/O 404 RAJESH CHOUWK NEW SHASTRI
NAGAR, JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28809 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT.
SW
ATI
SHEKETKAR
W/O
SHRI
S.B.
SHEKETKAR, AGED ABOUT 62 YEARS, R/O 667,
MARHATAL IN FRONT OF GURUNANAK SCHOOL,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28814 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. PARVINDER MARW
AHA W/O SHRI MANJIT
M ARWAHA R/O
267,
GUPTESHW
AR
ROAD,
MADAN MAHAL JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
WRIT PETITION No. 28817 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. MOHONA BHOWMICK W/O SHRI SOURA
V
BHOWM ICK R/O
H-701,
KONARK
INDRAYU
ENCLA
VE,
PHASE-II,
NIBM
ROAD,
PUNE
(MAHARASHTRA)
.....RESPONDENTS
WRIT PETITION No. 28819 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. SUJATA DWIVEDI W/O SHRI
SANJAY
DWIVEDI, AGED ABOUT 52 YEARS, R/O A-3, JUDGE
ENCLA
VE, BEHIND CHIEF JUSTICE BUNGLOW,
SOUTH
CIVIL
LINES,
JABALPUR
(MADHY
A
PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28820 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. BALJEET GOOMER W/O GURPREET SINGH
GOOMER, R/O 2303, GOOMER NIV
AS, RANJHI,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28821 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. MAUSAMI BANERJEE W/O SHRI SUBROTO
BANERJEE, AGED ABOUT 52 YEARS, R/O A-11,
PREET VIHAR, NARMADA ROAD, JABALPUR
(MADHYA PRADESH) 482001
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28823 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. SANDHY
A DWIVEDI W/O LATE RAKESH
DWIVEDI, AGED ABOUT 48 YEARS, R/O PLOT NO.
464 SHAKTI NAGAR, GUPTESHW
AR, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28826 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. BEILU TANDON (MEHTA) W/O SHRI RAJIV
M EH TA R/O 303 AMAR MOTI PAIRATAIEJ,
NARMADA
ROAD,
JABALPUR
(MADHY
A
PRADESH)
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
WRIT PETITION No. 28831 of 2021
BETWEEN:-
LITTLE
WORLD
HIGHER
SECONDARY
SCHOOL
THROUGH ITS TREASURER (OF THE GOVERNING
BODY)
SHRI
SUBODH
NEMA
S/O
LATE
SHRI
NATHURAM NEMA, AGED ABOUT 55 YEARS TILW
ARA,
NAGPUR ROAD, JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE ASSISTED BY
SHRI SANJAY RAM TAMRAKAR - ADVOCATE)
AND
1.
STATE OF MADHY
A PRADESH THROUGH THE
PRINCIPAL
SECRETARY
,
DEPARTMENT
OF
SCHOOL
EDUCATION,
V
ALLABH
BHA
W
AN,
BHOPAL (MADHYA PRADESH)
2.
CONTROLLING
AUTHORITY
UNDER
THE
PAYMENT OF GRATUITY
ACT, 1972 - CUM -
ASSISTANT LABOUR COMMISSIONER JABALPUR
DIVISION JABALPUR (MADHYA PRADESH)
3.
SMT. JYOTSNA SHARMA W/O AJAY
SHARMA,
AGED ABOUT 60 YEARS, R/O 2/4 LALGHATI, BDA
COLONY
, AIRPORT ROAD, BHOPAL (MADHY
A
PRADESH) - 482001
.....RESPONDENTS
(SHRI ADITYA AHIWASI - ADVOCATE FOR RESPONDENT NO.3)
These petitions coming on for orders this day, the court passed the
following:
Sanjay Ram Tamrakar,Advocate General
ORDER
This bunch of writ petitions are filed by the employer Little World Higher Secondary School being aggrieved of order dated 11.10.2021 passed by the Controlling authority under the Payment of Gratuity Act, 1972 and Assistant Labour Commissioner, Jabalpur Division, Jabalpur, directing the employer to make payment of the amount of gratuity along with interest at the rate of 10% for a period of one year.
2. Shri Kishore Shrivastava, learned Senior Counsel appearing for the petitioner submits that respondents were appointed on different dates with the petitioner institution. After having worked for different periods, either they resigned or attained the age of superannuation. It is submitted that some of the petitioners were deployed on contract basis for some time. These employees approached the Controlling authority seeking payment of gratuity but without considering various objections with regard to the applicability of the Payment of Gratuity Act, 1972 (hereinafter referred as to the ''Act of 1972'') and maintainability of the applications after a long gap, arbitrarily the learned Controlling authority under the Payment of Gratuity Act passed by the impugned order directing the petitioner to pay gratuity to the respondents with interest though there was delay in filing applications for payment of gratuity.
3. It is submitted that as per Rule 10 of the Payment of Gratuity (Madhya Pradesh) Rules, 1973 (hereinafter referred to as the ''Rules of 1973''), approach of the learned Controlling authority is inappropriate, inasmuch as, it entertained time barred claims. Claimants-employees did not explain delay in approaching the learned Controlling authority for payment of gratuity and since no application for condonation of delay was filed, no order could have been passed without condoning the delay.
4. It is further submitted that provisions of the Payment of Gratuity Act, 1972 are not applicable to the institution of the petitioner though the definition of the 'employee' was given a wider scope w.e.f. 2009 but the petitioner institution does not fall within the ambit of employer as defined in the Act of 1972 and, therefore, the Act of 1972 has no application.
5. It is also submitted that availability of alternative remedy of filing appeal is no bar in exercise of writ jurisdiction under Article 226 of the Constitution of India especially when the petitioner is challenging the fact that it does not fall within the definition of 'employer' as defined in the Act of 1972 and, therefore, reliance is placed on the judgment of the Supreme Court in case of M/s Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-Cum-Assessing Authority and others, 2023 0 Supreme (SC) 85.
6. Keeping in view the ratio of law laid down by the Supreme Court in M/s Godrej Sara Lee Ltd. (supra), despite objections by the respondents as to maintainability of the writ petitions in view of availability of alternate remedy, petitioner is not relegated to avail the said alternative remedy and this bunch of petitions is directly entertained, inasmuch as, petitioner has raised some vital issues as to the maintainability, etc. which needs to be answered herein under.
7. Shri Aditya Ahiwasi, learned counsel for the respondents, in his turn, submits that plea of petitioner being not covered under the definition of 'employer' is a bogey, inasmuch as, Supreme Court in case of Ahmadabad Pvt. Primary Teachers Association Vs. Administrative Officer and others, (2004) 1 SCC 755 , has held that private educational institutions are covered under the Payment of Gratuity Act. Same is the ratio of law laid down in Birla Institute of Technology Vs. The State of Jharkhand and others, (2019) 4 SCC 513 that as per the amendment of 2009, benefit of the Act was extended to teachers from 03.04.1997 and held that Payment of Gratuity (Amendment) Bill, 2007 was introduced in Lok Sabha on 26.11.2007 and same w
