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APEEJAY COLLEGE OF FINE ARTS & Anr v. DR.(MRS. SURJIT KAUR & Ors - LPA-54-2005  RD-P&H 632 (8 February 2006)
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
LETTERS PATENT APPEAL NO.54 OF 2005
DATE OF DECISION: DECEMBER 21,2005
APEEJAY COLLEGE OF FINE ARTS
AND ANOTHER ...................PETITIONERS VERSUS
DR.(MRS. SURJIT KAUR AND OTHERS
CORAM: HON'BLE MR.JUSTICE H.S.BEDI
HON'BLE MR.JUSTICE VINEY MITTAL
PRESENT: MR. P.S.PATWALIA, SR, ADVOCATE,WITH MR. C.B.GOEL, ADOCATE, FOR THE PETITIONERS.
MR. RAMESH KUMAR, ADVOCATE FOR THE
MR. A.S. GREWAL, ADDITIONAL ADVOCATE
GENERAL, PUNJAB .
This judgment shall dispose of two Letters Patent Appeals against the judgment dated October 27,2004 passed by the learned Single Letters Patent Appeal No. 54 of 2005 2
Judge vide which two Civil Writ Petitions being Civil Writ Petitions No.
4601 of 2003 ( Dr. Mrs.Surjit Kaur V. State of Punjab and others) and 4603 of 2003( Rajinder Paul Sud and others V. State of Punjab and others) were allowed and the claim of the writ petitioners for release of gratuity payable to them along with interest was allowed. For the sake of convenience, the facts are taken from LPA No.54 of 2005 which has arisen from Civil Writ Petition No.4601 of 2003.
Respondent No.1( writ petitioner), Dr.(Mrs.)Surjit Kaur, was a Lecturer in a private aided College, namely, Apeejay College of Fine Arts ( the present appellant). She retired on April 30,1999. She had served the College with effect from September 10,1976 till the date of retirement. On that basis, she claimed that she had a right to receive gratuity under Ordinance 18, Chapter 17 Volume III of Guru Nanak Dev University Calender ( hereinafter referred to as the "Ordinance"). The writ petitioner maintained that the aforesaid ordinance mandated payment to the Lecturer of private colleges affiliated to the University. Vide order dated January 15,2003 ( Annexure P/6 to the writ petition), the aforesaid claim of the writ petitioner was denied. Accordingly, she approached this Court through the present writ petition.
Letters Patent Appeal No. 54 of 2005 3
The claim of the writ petitioner was contested by the College.
Consequently, it was stated that the provisions of the aforesaid Ordinance stood superseded by the Payment of Gratuity Act,,1972. The College relied upon a judgment of the Supreme Court of India in the case of Ahmedabad Pvt. Primary Teachers' Association V. Administrative Officer & Ors, 2004 (1) SCC 755 to plead that the provisions of the Payment of Gratuity Act,1972 were not applicable to the teachers.
The learned Single Judge on the basis of a judgment of this Court in the case of N.D. Malhotra V. Hindu College Governing Council, Amritsar and others ( C.W.P. No.10460 of 1988) decided on November 9,1990 (Annexure P/3) held that Ordinance 18 was binding on private colleges affiliated to Guru Nanak Dev University and further in view of the application of the aforesaid Ordinance, the exception carved out by the Supreme Court in Ahmedabad Pvt. Primary Teachers' Association's case (supra) was also attracted. Consequently, the writ petition filed by the petitioner was allowed and the College was directed to make the payment of gratuity due to the petitioner with 12% interest payable from the date of retirement till its realisation.
The aforesaid judgment of the leaned Single Judge has been Letters Patent Appeal No. 54 of 2005 4
challenged by the appellant-College before us through the present Letters Patent Appeal.
We have heard Shri P.S.Patwalia, learned Senior counsel appearing for the appellant and Shri Ramesh Kumar, learned counsel appearing for respondent No.1 and with their assistance have also gone through the record of the case.
Shri P.S.Patwalia, learned senior counsel appearing for the appellant has raised similar contentions before us as were raised before the learned Single Judge. It was argued that in view of the provisions of Payment of Gratuity,1972, Ordinance 18 of the Guru Nanak Dev University stood superseded and in view of the law laid down by the Apex Court in Ahmedabad Pvt. Primary Teachers' Association's case (supra), since the provisions of 1972 Act were not applicable to the case of teachers, therefore, no gratuity was payable to the writ petitioner. It has further been argued that in any case Ordinance 18 was not binding on private Colleges, such as, the appellant, therefore, the claim of the writ petitioner was liable to be rejected on that ground.
We have duly considered the aforesaid contentions raised by the learned senior counsel but find ourselves unable to agree with the same.
Letters Patent Appeal No. 54 of 2005 5
Firstly, the following observations made by the Supreme Court in Ahmedabad Pvt. Primary Teachers' Association's case (supra) may be noticed:
"26. Our conclusion should not be misunderstood that teachers although engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes,rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take congnizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of legislature to consider and decide."
It is, thus, clear that although it was held by the Hon'ble Supreme Court that provisions of Payment of Gratuity Act,1972 were not applicable to the case of the teachers but all the same, it was laid down that if the teachers are entitled to gratuity under any other statutes, rules, and Letters Patent Appeal No. 54 of 2005 6
regulations framed by the State Government or any other authority, then the aforesaid claim could not be defeated on account of the provisions of the 1972 Act. Thus, we find that the provisions of Ordinance 18 are not affected in any manner by the enactment of 1972 Act. Ordinance 18 gives independent right to the teachers of private Colleges to claim gratuity from the management.
We further find that the controversy in question is also covered by the judgment of this Court in N.D.Malhotra's case (supra). In the aforesaid case a teacher of Hindu College , Amritsar had claimed gratuity from the management. This Court on the basis of Ordinance 18 found that the college was bound to pay the gratuity. The said judgment was affirmed in LPA and even SLP filed by the Managing Committee was dismissed.
Even the second contention of the learned counsel for the petition is devoid of any merit. In N.D.Malhotra's case it has been specifically laid down that Ordinance 18 fully applied to the case of teachers of private colleges. In view of the aforesaid pronouncement,the claim made by the appellant-College that the aforesaid Ordinance was not binding upon the college is without any justification.
Faced with the aforesaid difficulty, learned senior counsel for Letters Patent Appeal No. 54 of 2005 7
the appellant has argued that in any case since the appellant-college was a private college, therefore, the Guru Nanak Dev University by enactment of Ordinance 18 could not create any financial liability for the appellant- College. We are afraid, the aforesaid contention of the learned counsel is also without any merit. The vires of Ordinance 18 have not been challenged by the appellant-College at any stage. The only question which was raised before the learned Single Judge and which has also been raised before us is the application of Ordinance 18. We have already held that Ordinance 18 is fully attracted to the case of teachers of private colleges. The validity or otherwise of Ordinance 18 cannot be raised by the appellant-College in the present Letters Patent Appeal without challenging the vires thereof at the first instance. At this stage,learned counsel for the appellant states that a liberty be given to the appellant-College to challenge the vires of said Ordinance. We do not feel that any liberty is required to the appellant- College to challenge the vires of any statute, rules or regulations,if so advised, in any subsequent proceedings. However, as prayed, we grant the aforesaid liberty.
Before parting with this judgment, it may be relevant to notice an argument of desperation raised by the learned counsel for the appellant.
Letters Patent Appeal No. 54 of 2005 8
It has been argued that the appellant-College is an aided institution and was receiving 95% of the expenditure towards salary of teachers/Lecturers and,therefore, the State Government be directed to bear 95% of the expenditure towards gratuity also. However, we find that this argument of the learned counsel also stands answered against him in LPA 20 of 1991, the observations whereof have also been noticed by the leaned Single Judge in the judgment under appeal. Consequently, we do not find any merit in the aforesaid contention also.
No other point has been raised.
As a consequence of the aforesaid discussion, we do not find any merit in the present appeal and dismiss the same. However, there shall be no order as to costs.
December 21,2005 ( H.S.Bedi )
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