IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST 2017 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION No.39434 OF 2013 (L-PG) C/W W.P.Nos.14083/2011, 29691-29694/2011, 44827-44830/2011, 1163/2012, 51033/2012, 51034/2012, 51035/2012, 2145/2013 37434/2013, 49523/2013, 10429-10436/2014, 38497/2014, 43321/2015, 43322/2015 W.P.No.39434/2013 BETWEEN:
Sarvodaya Education Trust, Rep. by its Secretary, Virajpet – 571 218, Virajpet taluk, Kodagu district. ... Petitioner (By:Sri Vijaya Kumar, Advocate) AND:
1. The Union of India, Represented by its Secretary, Department of Ministry of Law & Justice, Government of India, 4th floor, ‘A’ Wing Shastri Bhavan, New Delhi.
2. The Union of India, Represented by its Secretary, Department of Labour & Employment, Government of India, Rafi Marg, New Delhi – 110 001.
3. The Controlling Authority & the Assistant Labour Commissioner, Camp. Madikeri, Chikkamagalur Division, Chikkamagalur – 577 101.
4. Dr.T Dinesh Chandra, Aged about 55 years, S/o S T Das Tanikele, R/o Puttur, Dakshina Kannada – 574 201. …Respondents (By: Sri H.Jayakar Shetty, C.G.S.C. for R1 & R2; Sri T.L.Kiran Kumar, A.G.A., for R3;
Sri B.S.Basavaraju, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare Section 2(1) of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional in so far as it relates to giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, vide Annexure – F issued by the 1st respondent and etc.
W.P.No.14083/2011 BETWEEN:
Karnataka Unaided Schools Management’s Association A Registered Society Represented by its President G S Sharma Age 85 years No.9, V V Road, V V Puram, Bangalore – 560 004. ... Petitioner (By:Sri K.V.Dhananjay, Advocate) AND:
1. The Union of India, Represented by its Secretary, Ministry of Labour and Employment, Shram Shakti Bhavan, New Delhi – 110 001.
2. Assistant Labour Commissioner (Central), Shram Sadan, 3rd Cross, 3rd Main, 2nd Phase, Yeshwanthpur Industrial Suburb Tumkur road, Bangalore – 560 022 3. State of Karnataka, Represented by its Principal Secretary, Department of Labour, Karmika Bhavan, Bannerughatta road, Bangalore – 560 029. …Respondents (By: Sri Krishna S. Dixit, A.S.G. for R1 and R2; Sri T L Kiran Kumar, A.G.A. for R3 ) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a judicial declaration that the retrospective operation (prior to 31-Dec-2009) of the Payment of Gratuity (Amendment) Act, 2009 operates unreasonably, arbitrarily and harshly in respect of private unaided Educational institutions in the State of Karnataka and is therefore, in violation of the constitutional right secured to private unaided educational institutions in terms of Articles 14 against arbitrary state action and in terms of 19(1)(g) to protection against unreasonable restriction in the matter of administration of their affairs and etc.
W.P.Nos.29691 - 29694/2011 BETWEEN:
1. Management of Independent CBSE Schools Association Karnataka, No.9:1, 13th Main, J Block, Kankadasanagara, Bettahalli, 3rd Stage, Mysore, By its General Secretary Mr.M.Srinivasan.
2. Management Association of Schools Karnataka, (Schools affiliated to CISCE) Regd. Office, New Horizon Public School, 100 ft road, Indiranagar, Bangalore – 560 008 By its Chairman Mohan.
3. Gifted Education & Research Foundation Also known as Innovative International School No.175, GEAR Road, Doddakannelli, Bangalore – 560 035.
By its Chairman Mr.M.Srinivasan.
4. Delhi Public School 11, K M Kanakapura Road, Bikaspura Road, Konnanakunte cross, Bangalore – 560 002 By its Board of management Mr.Mansoor Ali Khan ... Petitioners (By:Sri S.Basavaraj, Advocate) AND:
1. Union of India, Through Secretary, Ministry of Law & Justice, Government of India, 4th Floor, A-Wing, Shastri Bhawan, New Delhi.
2. Ministry of Labour and Employment Through its Secretary Rafi Marg, New Delhi. …Respondents (By:Sri Krishna S. Dixit, A.S.G.) These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, copy as per Annexure – E and etc.
W.P.Nos.44827-44830/2011 BETWEEN :
1. CBSE, ICSE and State Private Schools Management Association, Mysore Division (CISPMAM) Regd. Office Jnanasarovara International Residential School, Bannur Road, Mysore. By its Secretary, Aged major.
2. Jnanasarovara Education Trust (R), Represented by its President 3. Manasarowar Pushkarini Vidyashrama Represented by its Secretary.
4. Kautilya Vidyalaya Ayyajayyana Hundi, Dattagalli Mysore Taluk, Mysore – 23.
Represented by its Chairman Mr.R.Raghu ... Petitioners (By: Sri S.Basavaraj, Advocate) AND:
1. The Union of India, Through Secretary, Ministry of Law & Justice, Government of India, 4th floor Shastri Bhawan, New Delhi.
2. Ministry of Labour and Employment, Through its Secretary, Rafi Marg New Delhi. …Respondents (By: Sri Krishna S. Dixit, A.S.G.) These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to declare sub-section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, vide Annexure – B and etc.
W.P. No.1163/2012 BETWEEN:
Vidya Shankari Education Society ®, No.478, 14th main, SBM Colony, Bangalore – 50 Represented by Mr.Mariyappa, President. ... Petitioner (By: Sri A.C.Balaraj, Advocate) AND:
1. The State of Karnataka, Represented by its Secretary to Government, Department of Labour, Karmika Bhavan, Bangalore.
2. The Assistant Labour Commissioner and Controlling Authority Under the payment of Gratuity Act, 1972, Bangalore Division-2, Karmika Bhavan Bannerghatta Road, Bangalore – 560 029.
3. The Special Tahsildar, Office of the Tahsildar, Bangalore South Taluk, Mahaveer Complex 5th Floor, Kempegowda road, Bangalore – 560 009.
4. Smt.V.Rajamma, Major, R/o No.11/48, 2nd Floor, Backside house, 14th Main, SBM Colony, Bangalore – 50. … Respondents (By: Sri T.L.Kiran Kumar, A.G.A. for R1 to R3; Sri L.Harish Kumar, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 11.1.2011 passed by the 2nd respondent marked as Annexure – B and remand the proceedings in favour of the 2nd respondent for fresh disposal on affording reasonable opportunity to the petitioner herein and etc.
W.P.No.51033/2012 BETWEEN :
Sri Siddartha Education Society, SSIT Campus, Maralur, Tumkur – 572 105, Represented by its Secretary. ... Petitioner (By: Sri Chandrakanth R. Goulay, Advocate) AND:
1. Union of India, Department of Ministry of Law & Justice, Government of India, 4th floor, ‘A’ Wing Shastri Bhavan, New Delhi – 110 011, Represented by its Secretary.
2. Union of India, Department of Labour & Employment, Government of India, Rafi Marg, New Delhi – 110 011, Represented by its Secretary.
3. The Controlling Authority and Assistant Labour Commissioner, Bangalore Division – 1, Rajanna Road Peenya First Stage, Tumkur Road Bangalore – 560 058.
4. Sri M M Rajendra Prasad, S/o M P Mallaiah, No.25, First Main Road, Vinayaka Nagara, Tumkur – 572 103. …Respondents (By: Sri Krishna S.Dixit, A.S.G. for R1 and R2; Sri T L Kiran Kumar, A.G.A. for R3;
Sri G.S.Balagangadhar, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, copy as per Annexure – A and etc.
W.P.No.51034/2012 BETWEEN:
Mahatma Gandhi Vidyapeetha Trust (Regd), Shavige Malleswara Hills, Kanakapura Road, Bangalore – 560 078, Represented by its Secretary. ... Petitioner (By:Sri H.M.Muralidhar, Advocate for M/s.Sreeranga Associates) AND:
1. The Union of India, Department of Ministry of Law & Justice, Government of India, 4th floor, ‘A’ Wing Shastri Bhavan, New Delhi – 110 011, Represented by its Secretary.
2. The Union of India, Department of Labour & Employment, Government of India, Rafi Marg, New Delhi – 110 011, Represented by its Secretary.
3. The Controlling Authority and Assistant Labour Commissioner, Bangalore Division – 2, Karmika Bhavan Bannerghatta Road, Bangalore – 560 029.
4. Dr.T N Srinivasa, S/o T V Nagabhushana Sharma, Aged about 47 years, No.1490, 18th Cross, Kumaraswamy Layout, Bangalore – 560 078. …Respondents (By: Sri Krishna S.Dixit, A.S.G. for R1 and R2; Sri T.L.Kiran Kumar, A.G.A. for R3;
Sri G.S.Balagangadhar, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, vide Annexure – A and etc.
W.P.No.51035/2012 BETWEEN :
Mahatma Gandhi Vidyapeetha Trust (Regd), Shavige Malleswara hills, Kanakapura road, Bangalore – 560 078, Represented by its Secretary. ... Petitioner (By:Sri H.M.Muralidhar, Advocate for M/s.Sreeranga Associates) AND:
1. Union of India, Department of Ministry of Law & Justice, Government of India, 4th floor, ‘A’ Wing, Shastri Bhavan, New Delhi – 110 011, Represented by its Secretary.
2. Union of India, Department of Labour & Employment, Government of India, Rafi Marg, New Delhi – 110 011, Represented by its Secretary.
3. The Controlling Authority and Assistant Labour Commissioner, Bangalore Division – 2, Karmika Bhavan, Bannerghatta road, Bangalore – 560 029.
4. Sri H N Sathyamurthy, S/o late H S Nanjundaiah, Aged about 62 years, No.29, 3rd ‘A’ Main, AGB layout, Ist Stage, Mahalakshmipuram, Bangalore – 560 086. …Respondents (By: Sri Krishna S.Dixit, A.S.G. for R1 and R2; Sri T.L.Kiran Kumar, A.G.A. for R3;
Sri G.S.Balagangadhar, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, vide Annexure – A and etc.
W.P.No.2145/2013 BETWEEN :
Sri Siddartha Education Society, SSIT Campus, Maralur, Tumkur – 572 105.
Represented by its Secretary. ... Petitioner (By: Sri Chandrakanth R.Goulay, Advocate) AND:
1. Union of India, Department of Ministry of Law & Justice, Government of India, 4th floor, ‘A’ Wing, Shastri Bhavan, New Delhi – 110 011, Represented by its Secretary.
2. Union of India, Department of Labour & Employment, Government of India, Rafi Marg, New Delhi – 110 011, Represented by its Secretary.
3. The Controlling Authority and Assistant Labour Commissioner, Bangalore Division – 1, Rajanna Road, Peenya First Stage, Tumkur Road, Bangalore – 560 058.
4. Sri E.Eswara Reddy, S/o Late E.R.Krishna Reddy, Kumataiah Layout (Near Bilwa Tree) Banashankari II Stage, Tumkur – 572 105. …Respondents (By: Sri Krishna S.Dixit, ASG for R1 to R3; Sri G.S.Balagangadhar, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the Payment of Gratuity (Amendment) Act, 2009, as unconstitutional for giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009, vide Annexure – A and etc.
W.P. No.37434/2013 BETWEEN :
M/s CMR Institute of Technology, No.132, ITPL Road, ACES Layout, Kundalahalli, Bengaluru – 560 057.
By its Principal. ... Petitioner (By: Sri G.Papi Reddy, Advocate) AND:
1. The Union of India, Department of Ministry of Law and Justice, Government of India, 4th floor, ‘A’ Wing, Shastri Bhavan, New Delhi – 110 011, Represented by its Secretary.
2. Department of Labour and Employment, Government of India, Rafi Marg, New Delhi – 110 011, Represented by its Secretary.
3. The Assistant Labour Commissioner/ Controlling Authority, Bangalore Division,Kaarmikara Bhavan Bannerghatta Road,Bangalore – 560 076.
4. S.Honnasiddaiah, S/o Late Siddagangappa, Aged about 48 years, R/at No.574, 3rd floor,4th Cross, 8th Main, Bhuvaneshwarinagar, T.Dasarahalli Bangalore – 560 037. … Respondents (By: Sri Krishna S.Dixit, ASG for R1 to R3; Sri M V Hiremath, Advocate for R4) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare the Payment of Gratuity (Amendment) Act, 2009 vide Annexure – F as illegal and unconstitutional and declare Section 1(2) of the Payment of Gratuity (Amendment) Act, 2009, giving retrospective effect to the Amendment Act as ultra vires and unconstitutional and having no nexus to the object of the parent Act vide Annexure – F and etc.
W.P.No.49523/2013 BETWEEN:
M/s Alva Education Foundation (Regd.) Moodabidri – 574 227, Dakshina Kannada, Represented by its Chairman Dr.M.Mohan Alva. ... Petitioner (By: Sri Aruna Shyam.M, Advocate) AND:
1. Union of India By its Secretary, Ministry of Labour & Employment, Sharam Shakti Bhavan, New Delhi – 110 001.
2. The Assistant Labour Commissioner Sharam Sadan, III Cross, III Main, II Phase, Yashavanthapur Industrial Suburb, Tumkur Road, Bangalore – 560 022.
3. The State of Karnataka, By its Secretary, Department of Labour, Karmika Bhavan, Bannerghatta Road, Bangalore – 560 029. … Respondents (By: Sri Krishna S.Dixit, A.S.G. for R1 and R2; Sri T.L.Kiran Kumar, A.G.A. for R3) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to declare that the retrospective operation of the payment of Gratuity (Amendment) Act, 2009, is unreasonable, arbitrary, invalid and unconstitutional and consequently, strike down the same from the statute book and etc.
W.P.Nos.10429-10436/2014 BETWEEN:
K.S.Institute of Technology, #14, Raghuvanahalli, Kanakapura Main Road, Bengaluru – 560 062, Represented by its President ... Petitioner (By: Sri B.C.Prabhakar, Advocate) AND:
1. Union of India Represented by its Secretary, Ministry of Labour and Employment, New Delhi – 110 001.
2. The Assistant Labour Commissioner and Controlling Authority Payment of Gratuity Act, 1972, Bangalore Division – 2, Karmika Bhavana, Bannerghatta Road, Bengaluru – 560 029.
3. Dr.T.G.S.Murthy, Aged about 69 years, No.36, Swathi, 2nd Main road, College Teacher’s Layout, Banashankari 3rd Stage, Bangalore – 560 085.
4. Dr.K.Ramanarasimha, Aged about 42 years, No.30, New Income Tax Layout, 3rd Stage, 1st Block, Jyothi Nagar, Nagarabhavi Road, Bangalore – 560 094.
5. Sri K.Chandrashekar, Aged about 43 years, No.288, 8th Cross, TAT Nagar Kodigehalli, Bangalore – 560 094.
6. Dr. C.B.Mohan, Aged about 45 years, No.95, Behind Shakaramatta, Kirloskar Colony, Mahalakshmi Puram, Bangalore – 560 086.
7. Dr.K.Venkatesh, Aged about 46 years, No.30, New Income Tax Layout, 3rd Stage, 1st Block, Jyothi Nagar, Nagarabhavi road, Bangalore – 560 072.
8. Dr.K.Goplalakrishna, Aged about 51 years, No.42, Nandashree, 3rd Cross, Eshwar Layout, 7th Cross, J.P.Nagar, Bangalore – 62. … Respondents (By: Sri Krishna S.Dixit, ASG for R1 and R2;
Sri T.V.Narayana Murthy, Advocate for R5) These writ petition are filed under Articles 226 and 227 of the Constitution of India praying to retrospective operation (Prior to 31.12.2009) of the payment of Gratuity (Amendment) Act, 2009, operates unreasonably, arbitrarily, and harshly in respect of the petitioner’s institute and is therefore, in violation of the constitutional right (Annexure –A) and etc.
W.P.No.38497/2014 BETWEEN:
Dayananda Sagar Dental College, Shavige Malleswara Hills, Kumara Swamy Layout, Bangalore – 560 078, Represented by its Secretary. …Petitioner (By:Sri H.M.Muralidhar, Advocate) AND:
1. The Union of India, Department of Ministry of Law and Justice, Government of India, 4th Floor, ‘A’ Wing Shastri Bhavan,New Delhi – 110 001.
Represented by its Secretary.
2. The Union of India, Department of Labour and Employment, Government of India, Rafi Marg New Delhi – 110 001,Represented by its Secretary.
3. The Controlling Authority and Assistant Labour Commissioner, Division – 2, Karmika Bhavan, Bannerughatta Road, Bengaluru – 560 029.
4. Dr.(Mrs.) Suma Sridhar, W/o Sri L.Sridhar, Aged about 36 years, No.257, 11th Cross, 20th Main, J.P.Nagar II Phase, Mahalakshmipuram, Bangalore – 560 078. …Respondents (By:Sri Krishna S.Dixit, ASG for R1 to R2; Sri T.L.Kiran Kumar, AGA for R3;
Sri D.Leelakrishnan, Advocate for R4) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to declare Sub-Section (2) of Section 1 of the payment of Gratuity (Amendment) Act, 2009, and Section 13-A newly inserted by Section 3 of the payment of Gratuity Act, 1972 as per notification dated 31.12.2009 vide Annexure-A and etc.
W.P.No. 43321/2015 BETWEEN:
Sri Krishnadevaraya Educational Trust, Royal Cottage, Royal Palace, Bengaluru – 560 052.
Represented by its Secretary …Petitioner (By:Sri V.Krishna Murthy, Advocate) AND:
1. The Union of India, Represented by its Secretary, Department of Ministry of Law and Justice, Government of India, 4th Floor, ‘A’ Wing Shastri Bhavan, New Delhi – 110 001.
2. The Union of India, Represented by its Secretary, Department of Labour and Employment, Government of India, Rafi Marg, New Delhi – 110 001.
3. The Assistant Labour Commissioner and Gratuity Controlling Authority, Division – 2, Karmika Bhavan, Bannerughatta Road, Bengaluru – 560 029.
4. Sri K.Raghupathi, S/o Sri R.Krishnaswamy Iyengar, Aged about 56 years, R/at No.916, I-A Main, 4th Cross, BSK 3rd Stage, 3rd Phase, 3rd Block, Bengaluru – 560 085. …Respondents (By:Sri Krishna S. Dixit, ASG for R1 to R3;
Sri T.N.Narayana Murthy, Advocate for R4) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to issue writ of mandamus, to declare Section 2(1) of the payment of Gratuity (Amendment) Act, 2009, as unconstitutional in so far as it relates to giving retrospective effect to the payment of Gratuity (Amendment) Act, 2009 (Annexure – D) issued by the R1 and etc.
W.P.No.43322/2015 BETWEEN:
Sri Krishnadevaraya Educational Trust, Royal Cottage, Royal Palace, Bengaluru – 560 052.
Represented by its Secretary K. Shyamaraju, Aged about 65 years. …Petitioner (By:Sri V.Krishna Murthy, Advocate) AND:
1. The Union of India, Represented by its Secretary, Department of Ministry of Law and Justice, Government of India,4th Floor, ‘A’ Wing Shastri Bhavan, New Delhi – 110 001.
2. The Union of India, Represented by its Secretary, Department of Labour and Employment, Government of India, Rafi Marg New Delhi – 110 001.
3. The Assistant Labour Commissioner and Gratuity Controlling Authority, Division – 2 Karmika Bhavan, Bannerughatta Road, Bengaluru – 560 061.
4. Sri H.Narendra Kumar, S/o Sri C.Hanumathaiah, Aged about 50 years, R/at No.606, Vaishaka, 8th A Main, 3-A Cross, BHCS Layout Uttarahalli, Bengaluru – 560 061. …Respondents (By:Sri Krishna S.Dixit, ASG for R1 to R3;
Sri T.N.Narayana Murthy, Advocate for R4) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to declare Section 2(1) of the Payment of Gratuity (Amendment) Act, 2009 as unconstitutional in so far as it relates to giving retrospective effect to the Payment of Gratuity (Amendment) Act, 2009 (Annexure – D) issued by the R1 and etc.
These writ petitions having been heard and reserved for orders on 01.08.2017, coming on for pronouncement this day, the Court* made the following:
*Corrected vide chambers order dated:18.08.2017.
O R D E R The petitioners’ grievance is over the newly substituted Section 2(e) and the newly inserted Section 13-A of the Payment of Gratuity Act, 1972 (‘the said Act’ for short). The amendments in question are brought about by Act 47 of 2009. The challenge is mainly to the retrospective operation making it enforceable with effect from 3.4.1997. Some of the petitioners have also challenged the orders passed by the Controlling Authority under the said Act directing the payment of gratuity to the teachers. Some of them have approached this Court on receiving the notice, issued by the Controlling Authority, pursuant to the claims preferred by the employees.
2. Sri K.V.Dhananjay, the learned counsel for the petitioner in W.P.No.14083/2011 submits that the Payment of Gratuity (Amendment) Act, 2009 cannot traverse backward in time for a period of 12 years. It cannot confer gratuity upon the teachers, who have retired prior to the coming into force of the said amendment, dated 31.12.2009.
3. He submits that the insertion of Section 13-A is only for validating the payment of gratuity already paid by an employer under the mistaken impression of the legal requirement. But it cannot be understood that a teacher, who has already retired as on the date of the commencement of the Amendment Act should be recalled and be rendered eligible and entitled to receive the gratuity.
4. He submits that the Amendment Act in question over- reaches the judicial powers of the Court. It defeats a series of binding judgments of the Hon’ble Supreme Court on how the definition of an employee does not cover the services of a teacher. He submits that the teachers employed in a school are not held to be employees under the Minimum Wages Act, 1948, as per the decision of the Apex Court in the case of HARYANA UNRECOGNISED SCHOOLS’ ASSOCIATION v. STATE OF HARYANA reported in (1996) 4 SCC 225. He submits that the Apex Court in the case of MISS A. SUNDARAMBAL v. GOVERNMENT OF GOA, DAMAN AND DIU AND OTHERS reported in (1988) 4 SCC 42, has expressed the view that the teachers employed by educational institutions cannot be called as ‘workmen’ within the meaning of Section 2(s) of the Industrial Disputes Act, 1947.
5. He submits that the members of the petitioner are private unaided schools; they do not receive any aid or assistance of any kind from the Government, State or Central. Their fundamental right to establish and administer the educational institutions of their choice is being affected adversely on account of imposition of excessively harsh and unreasonable liability upon them. The fundamental right guaranteed under Article 19(1)(g) of the Constitution of India is required to be protected by invalidating the impugned legislation. A retrospective law is not immune from the judicial challenge. The learned counsel clarifies that the challenge in this case is not to the power of Parliament to legislate retrospectively; rather the challenge is to the jurisdiction of Parliament to legislate retrospectively in the special circumstances of this case.
6. Relying on the Hon’ble Supreme Court’s judgment in the case of JAWAHARMAL v. STATE OF RAJASTHAN AND OTHERS reported in AIR 1966 SC 764, he would contend that when the liability is introduced retrospectively, its reasonableness has to be examined by the higher judiciary. Drawing support from the Apex Court’s judgment in the case of NATIONAL AGRICULTURAL COOPERATIVE MARKETING FEDERATION OF INDIA LTD. AND ANOTHER v. UNION OF INDIA AND OTHERS reported in (2003) 5 SCC 23, he would contend that the excessive harshness or unreasonableness would be a valid ground to strike down a retrospective legislation. He submits that if the retrospectivity is harsh, it runs the risk of being struck down as unconstitutional.
7. He submits that without ascertaining whether there are atleast 10 employees in the establishment of educational institutions and without ascertaining as to whether the teacher has taught for five years, the applicant-teacher cannot be granted the gratuity.
8. He submits that the Members of the petitioner Association face harsh consequences of the Amendment Act. The member institutions have not made any provision for future payment of gratuity, as they never anticipated that some day they would become liable to pay the gratuity to the retired teachers. He submits that many statutes and the rules framed thereunder, more particularly the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 prohibits the making of profits by the educational institutions. The revenue – limitations of private unaided schools are not at all appreciated. He submits that the member-schools of the petitioner Association did not pay the gratuity to their teachers between 1997 and 2009, as they were legally not liable to do so. At a later point of time they cannot be forced to pay the gratuity from a retrospective date. He submits that the proceedings of the Standing Committee of Labour do not show that the introduction of the retrospective liability was ever intended.
9. He relies on the Apex Court’s judgment in the case of SHYAM SUNDER AND OTHERS v. RAM KUMAR AND ANOTHER reported in (2001) 8 SCC 24 in which it is held that a statute, which not only changes the procedure but also creates new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.
10. He submits that the Amendment Act requires the employer not only to pay the gratuity to teachers, who have already retired between 03.04.1997 and 31.12.2009 but also requires them to compulsorily pay interest in such cases.
Therefore, the Amendment Act deserves to be struck down on the said count.
11. Relying on the Apex Court’s judgment in the case of AMALGAMATED COALFIELDS LTD. AND ANOTHER v. JANAPADA SABHA CHHINDWARA AND OTHERS reported in AIR 1964 SC 1013, he contends that the principle of constructive res judicata is a special and artificial form of res judicata and therefore should not generally be applied to the writ petitions. He sought to draw support from the Apex Court’s judgment in the case of NAND KISHORE v. STATE OF PUNJAB reported in (1995) 6 SCC 614 to advance the submission that questioning the constitutionality of a provision of law stands on a different footing than raising a matter on a bare question of law or mixed question of law and fact, or on fact.
12. He relies on the Calcutta High Court’s decision in the case of SHEW BHAGWAN GOENKA v. COMMERCIAL TAX OFFICER AND OTHERS reported in 1973 32 STC 368 Cal in support of his submission that the test of reasonableness should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the rights alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evils sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
13. Sri S.Basavaraj, the learned counsel for the petitioners in W.P.Nos.44827-44830/2011 and 29691-29694/2011 submits that the constitutionality of an enactment can be challenged on the ground of the violation of the Articles in Part III of the Constitution; the ascertainment of its true nature and character becomes necessary. In support of his submissions, he relies on the Apex Court’s judgment in the case of HAMDARD DAWAKHANA AND ANOTHER v. THE UNION OF INDIA AND OTHERS reported in AIR 1960 SC 554.
14. He read out paragraph No.21 from the Apex Court’s judgment in the case of MITHILESH KUMARI AND ANOTHER v. PREM BEHARI KHARE reported in (1989) 2 SCC 95. It reads as follows:
“21. We read in Maxwell that it is a fundamental rule of English Law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly at the time of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the court has to be satisfied that the statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transactions or consideration already passed. However, a statute is not probably called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing….…”
15. Nextly, he relies on the Apex Court’s judgment in the case of EX-CAPT. K.C. ARORA AND ANOTHER v. STATE OF HARYANA AND OTHERS reported in (1984) 3 SCC 281, wherein it is held that the legislature cannot legislate today with reference to a situation that prevailed 20 years ago and ignore the march of events and the rights accrued in the course of 20 years. He submits that the said view was reiterated by the Apex Court in its decision in the case of CHAIRMAN, RAILWAY BOARD AND OTHERS v. C.R. RANGADHAMAIAH AND OTHERS reported in AIR 1997 SC 3828. He submits that if the amendment suffers from the vice of arbitrariness or harshness, it has to be struck down as unconstitutional. He brings to my notice the Division Bench’s decision of Delhi High Court pronounced in W.P.(C).No.6168/2010 in the case of INDEPENDENT SCHOOLS’ FEDEREATION OF INDIA (REGD) v. UNION OF INDIA AND OTHERS disposed of on 2.12.2011, in the matter.
16. He submits that as held by the Apex Court in the case of T.M.A. PAI FOUNDATION AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in (2002) 8 SCC 481, an educational institution is established for the purpose of imparting education, which is regarded as charitable. An educational institution cannot charge such fees as are not required for the purpose of fulfilling that object. In view of the said decision, the petitioners have charged only for paying the salary, etc. to the teachers and not for paying the gratuity.
17. Relying on the Apex Court judgment in case of COMMISISONER OF INCOME TAX (CENTRAL)-I, NEW DELHI v. VATIKA TOWNSHIP PRIVATE LIMITED reported in (2015) 1 SCC 1, he would contend that the legislations, which modified the accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect. Paragraph No.28 of the said decision, read out by him, is extracted herein as follows:
“28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.”
18. Sri Aruna Shyam.M, the learned counsel for the petitioner in W.P.No.49523/2013 submits that wherever the amendment purports to restore the status quo ante for the past period taking away the benefits already available, accrued and acquired by the parties, the law may not be valid. For making this submission, he relies on the Apex Court judgment in the case of ANDHRA PRADESH DAIRY DEVELOPMENT CORPORATION FEDERATION v. B.NARASIMHA REDDY AND OTHERS reported in (2011) 9 SCC 286. He also relies upon the Division Bench’s judgment of this Court reported in (2013) 1 KLJ 379 in the case of SHAMARAJA UDUPA v. THE ASSISTANT LABOUR COMMISSIONER, MANGALORE AND OTHERS in support of his submissions.
19. Sri V.Krishna Murthy, the learned counsel appearing for the petitioners in W.P.Nos.43321/2015 and 43322/2015 submits that the fourth respondent – teachers in both the petitions have accepted the appointment subject to the Service and Conduct Rules of the petitioner Trust. As per the said Rules, it is only the non-teaching staff members, who are entitled to gratuity. As the said Rules do not provide for the payment of gratuity to the teachers and as the said respondents have accepted the appointment subject to the said Rules, they are estopped from demanding anything that runs contrary to the Rules. Without prejudice to this submission, he contends that the Management is not liable to pay the gratuity. He submits that if this Court is inclined to hold that the Management is liable to pay the same, it cannot be with effect from 03.04.1997; the teachers’ entitlement to gratuity would be only from the day on the amendment has come into force.
20. Sri Krishna S. Dixit, the learned Assistant Solicitor General of India submits that the Payment of Gratuity Act, 1972 is a welfare measure introduced in the interests of the general public to secure the social and economic justice to the workmen and the employees to assist them in their old age and to ensure a decent standard of living on their retirement. He submits that the said Act is a genre of the Minimum Wages Act, the Payment of Bonus Act, the Provident Funds Act, the Employees’ State Insurance Act, etc. which lay down the minimal service conditions, which must be made available to the employees notwithstanding the financial capacity of the employer. In support of his submissions, he relies on the Hon’ble Supreme Court’s decision in the case of BAKSHISH SINGH v.
portions from the said decision:
“The provisions of the Act were thus meant for laying down gratuity as one of the minimal service conditions available to all employees covered by the Act. There is no provision in the Act for exempting any factory, shop etc. from the purview of the Act covered by it except those where, as pointed out above, the employees are in receipt of gratuity or pensionary benefits which are no less favourable than the benefit conferred under the Act. The payment of gratuity under the Act is thus obligatory being one of the minimum conditions of service. The non- compliance of the provisions of the Act is made an offence punishable with imprisonment or fine. It is settled law that the establishments which have no capacity to give to their workmen the minimum conditions of service prescribed by the Statute have no right to exist.”
21. Relying on the Apex Court’s decision in the case of RAICHURMATHAM PRABHAKAR AND ANOTHER v.
RAWATMAL DUGAR reported in (2004) 4 SCC 766, he submits that in case of conflict between the plain language of the provision and the meaning of the heading or title, the heading or title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder.
22. He read out the relevant portions from Sri H.M.Seervai’s Constitution of India, a Critical Commentary, Fourth Edition, Volume 3 to buttress his submission that there is nothing in our Constitution which creates any fetter on the legislature’s jurisdiction to amend the laws with retrospective effect and validate the invalid laws or invalid executive acts and notifications.
23. He relies on the Apex Court’s judgment in the case of PATHUMMA AND OTHERS v. STATE OF KERALA AND OTHERS reported in 1978 (2) SCC 1 and contends that the Court has to strike a just balance between the fundamental rights and the larger and broader interests of the society so that when such a right clashes with the larger interest of the country, it must yield to the latter. He relies on the said decision for yet another proposition which he canvassed: there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party, which assails the same.
24. He submits that the Recommendations concerning the Status of Teachers are adopted on 05.10.1966 by the Special Intergovernmental Conference pursuant to the deliberation of the U.N.E.S.C.O. (United Nations Educational, Scientific and Cultural Organization) in co-operation with the I.L.O. (International Labour Organization).
25. He sought to draw the support from the Apex Court’s judgment in the case of UDAI RAM SHARMA AND OTHERS v. THE UNION OF INDIA AND OTHERS reported in AIR 1968 SC 1138, wherein it is held that the Validating Acts cannot be struck down merely because the courts of law have declared actions taken earlier to be invalid for want of jurisdiction. Nor is there any reason to hold that in order to validate the action without legislative support, the Validating Act must enact provisions to cure the defect for the future and also provide that all actions taken or notifications issued must be deemed to have been taken or issued under the new provisions so as to give them full retrospective effect.
26. Taking support from the Apex Court’s judgment in the case of AHMEDABAD PVT. PRIMARY TEACHERS’ ASSN. v. ADMINISTRATIVE OFFICER AND OTHERS reported in (2004) 1 SCC 755, he submits that the gratuity is a gratuitous payment given to an employee on discharge, retirement or death. It is a gift for the services rendered or return for the favours received. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide over the post-retiral hardships and inconveniences. On the ground that the payment of gratuity would render their institutions unviable, the legislative amendment cannot be challenged. Without prejudice to this submission, he submits that the material particulars of actual damage or hardship, if any, suffered by the managements suffered on account of the amendment in question, are not at all furnished to this Court.
27. He also read out some portions from a Treatise on the Constitutional Limitations authored by Thomas M. Cooley and published by Hindustan Law Book Company, Calcutta and submits that the judiciary can arrest the execution of a statute only when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason and expediency with the law-making power.
28. He read out the relevant portion of the 26th Report of the Standing Committee of 14th Lok Sabha, on Labour which explains the antecedent facts warranting the giving of the needed succor and justice to all those affected persons, who were denied their rightful benefits due to some technical flaw/legal lacuna in the definition of the term ‘employee’, as contained in Section 2(e) of the Payment of Gratuity Act, 1972.
29. He relies on the Apex Court’s judgment in the case of KUSUM INGOTS AND ALLOYS LTD. v. UNION OF INDIA AND ANOTHER reported in (2004) 6 SCC 254, wherein it is held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act. Following the said Apex Court’s judgment, the Division Bench of this Court in the case of SHIV KUMAR v. UNION OF INDIA reported in ILR 2014 KAR 2474 has held that the Kerala High Court’s pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India.
30. Smt.T.N.Asha, learned counsel for the respondent No.4 in W.P.Nos.43321/2015 and 43322/2015 submits that the teachers in question were still in service as on the date of the commencement of the Amendment Act in 2009. She submits that the teachers in question have retired only in 2013.
31. Sri D.Leelakrishnan, the learned counsel for the respondent No.4 in W.P.No.38497/2014 submits that the Bombay High Court in its judgment in the case of PRESIDENT/SECRETARY, VIDARBHA YOUTH WELFARE INSTITUTION (SOCIETY), AMRAVATI v. PRADIPKUMAR AND OTHERS reported in 2012 LLR 417 has held that in view of amendment of 2009, a teacher is not only an employee under the Payment of Gratuity Act but is also entitled to get gratuity with retrospective effect from 3.4.1997. He further submits that the Apex Court has dismissed the SLP filed against the said judgment of the Bombay High Court.
32. Sri H. Jayakar Shetty, the learned Central Government Standing Counsel appearing for the Union Government in W.P.Nos.39434/2013, 44827-44830/2011, 51033/2012 and 2145/2013 submits that a competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating factors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. While advancing this submission, he relies on the Apex Court’s judgment in the case of M/S. UJAGAR PRINTS AND OTHERS (II) v. UNION OF INDIA AND OTHERS reported in (1989) 3 SCC 488.
33. Nextly, he relies on the Apex Court’s judgment in the case of RAI RAMKRISHNA AND OTHERS v. STATE OF BIHAR reported in AIR 1963 SC 1667, wherein it is held that the legislative power conferred on the appropriate legislatures to enact law in respect of topics covered by several entries in the three Lists can be exercised both prospectively and retrospectively. The legislative power conferred on the legislature includes the subsidiary or the auxillary power to validate laws which have been found to be invalid.
34. He submits that merely because the legislation has retrospective effect, it cannot be challenged. If it has to be held as unconstitutional, it has to be unduly oppressive and confiscatory. For making these submissions, he relies on the Apex Court’s judgment in the case of R.C. TOBACCO PVT. LTD.
v. UNION OF INDIA reported in 2005 (188) E.L.T. 129 (SC).
35. Nextly, he relies on the Apex Court’s judgment in the case of RAGHUNATH RAI BAREJA AND ANOTHER v. PUNJAB NATIONAL BANK AND OTHERS reported in 2006 AIR SCW 6446, wherein it is held that if there is a conflict between law and equity, it is the law which has to prevail, in keeping with the Latin maxim ‘dura lex sed lex’ which means ‘the law is hard, but it is the law’. Equity can only supplement the law, but it cannot supplant or override it.
36. Sri G.S.Balagangadhar, the learned counsel for the respondent No.4 in W.P.Nos.51033/2012, 51034/2012, 51035/2012 and 2145/2013 submits that the High Courts of Delhi, Gujarat, Punjab and Haryana have already upheld the validity of the amendment in question.
37. Sri T.L.Kiran Kumar, the learned Additional Government Advocate appearing for the Controlling Authority prays for the dismissal of these writ petitions.
38. In the course of rejoinder, Sri Dhananjay submits that the decisions of the High Courts of Delhi, Punjab and Haryana do not come to the rescue of the Central Government in any way. The decisions of the other High Courts can at the most have only persuasive value. He disagrees with submission of the Assistant Solicitor General of India that the decision of one High Court would bind the other High Courts, if it touches upon the constitutionality of a central legislation. Sri Dhanajay asserts that the Assistant Solicitor General’s reliance on Kusum (supra) would not therefore come to the rescue of the Central Government. Similarly, he would contend that the Delhi High Court’s decision can also be of no assistance for deciding this case, as the arguments being canvassed before this Court were not raised before the Delhi High Court.
39. He submits that the Central Government’s argument that the petitioner should have furnished the proof of actual damage or hardship instead of arguing on the theoretical damage or hardship is misplaced.
40. He brings to my notice the Apex Court’s judgment in the case of AMBICA INDUSTRIES v. COMMISSIONER OF CENTRAL EXCISE reported in (2007) 6 SCC 769, for contending that the decision of one High Court is a binding authority within its territorial jurisdiction; but it is not a binding precedent for another High Court or Tribunal outside its territorial jurisdiction.
41. The submissions of the learned counsel have received my thoughtful consideration. The first question that falls for my consideration is whether the amended statutory provisions are liable to be invalidated on the ground of their retrospective operation? There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear transgression of the constitutional principles, as held by the Apex Court in the cases of SHRI RAM KRISHNA DALMIA v. SHRI JUSTICE S.R.TENDOLKAR & OTHERS reported in AIR 1958 SC 538 and PEOPLE’S UNION FOR CIVIL LIBERTIES v. UNION OF INDIA AND OTHERS reported in (2004) 2 SCC 476.
42. An Act of legislature can be struck down only on two grounds – (i) lack of legislative competence and (ii) violation of fundamental rights or any other provisions of the Constitution. No third ground exists for invalidating the legislation. In saying so, I am fortified by the Apex Court’s judgments in the cases of STATE OF A.P. AND OTHERS v. MCDOWELL & CO. AND OTHERS reported in (1996) 3 SCC 709 and PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P. AND ANOTHER reported in (2003) 4 SCC 104.
43. The power of the Parliament and State Legislatures to make laws is conferred by Articles 245, 246 and 248 of Constitution of India. There is nothing in the said Articles to suggest that the Indian Legislatures do not possess the power to make retrospective legislations, which every sovereign legislature possesses. In the case of STATE OF TAMIL NADU v. AROORAN SUGARS LTD. reported in (1997) 1 SCC 326, the Hon’ble Supreme Court has held that legislature has the power to amend, delete or obliterate the statute or to enact a statute prospectively or retrospectively.
44. In the case of UNION v. MADAN GOPAL KABRA reported in 1954 SCR 541, the Hon’ble Supreme Court has held that the Parliament has the power to impose retrospectively a tax on income for any year prior to the commencement of the Constitution. Unless limited by the Constitution, the legislatures in India have the power to legislate retrospectively and also to validate the invalid laws or invalid executive acts and notifications.
45. As held by the Apex Court in the case of M/S. Ujagar Prints (supra), validating and curative exercise made by the legislature cannot be called an impermissible legislative overruling of the judicial decision. The legislative expedience of validation of laws is of great significance and utility. The courts, except under extraordinary circumstances, would be reluctant to override the legislative judgment as to the need for and wisdom of the retrospective legislation.
46. As held by the Apex Court in the case of Rai Ramkrishna (supra), if a law passed by a legislature is struck down by the courts as being invalid for one or the other infirmity, it would be competent for the appropriate legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed.
47. When the challenge to Amendment Act, 2009 to the Payment of Gratuity Act, 1972 fell for consideration before the Division Bench of Gujarat High Court in the case of JAIN CITIZENS EDUCATION SOCIETY v. UNION OF INDIA reported in 2012 LLR 292, it was held that what is substituted in Section 2(e) and what is inserted by Section 13-A of the Payment of Gratuity Act, 1972 by Amendment Act of 2009 are neither violative of Article 14 nor violative of Article 19(1)(g) of the Constitution, as no substantive right was earlier created in favour of the schools nor any such substantive right has been taken away. Further it has been held therein that the legislative power conferred on the legislature includes the subsidiary or the ancillary power to validate laws, which have been struck down by the courts as invalid for one or the other infirmity, thereby to cure the infirmity and pass the validating law so as to make the provision of the earlier law effective from the date when it was passed.
48. The High Court of Bombay in the case of President/Secretary, Vidarbha Youth Welfare Institution (Society), Amravati (supra) has held that there is no escape but to hold that a ‘teacher’ is an ‘employee’ within the meaning of Section 2(e) of the said Act and hence the provisions of the said Act are applicable. The Division Bench of Punjab & Haryana High Court in W.P.No.16884/2012, between MAHARISHI DAYANAND EDUCATION SOCIETY AND OTHERS v. UNION OF INDIA AND OTHERS, disposed of on 18.10.2012 has also upheld the amended statutory provisions in question.
49. The Court may take into account the surrounding circumstances, which existed at the time of bringing about an amendment. The antecedent state of affairs which lead to the initiation of the amendment bill cannot be glossed over. The recommendations concerning the status of teachers, which emanated from U.N.E.S.C.O. and I.L.O., are accepted by the Special Intergovernmental Conference on 5.10.1966. The recommendation is for taking the social security measures to protect the interests of the teachers. Payment of gratuity is one such measure recommended by International Organizations and incorporated in our domestic/municipal law. On the grounds that the educational institutions have not collected the amounts from the students for the payment of gratuity to its teachers, that the payment of the gratuity makes the working of the educational institutions unviable, etc., this Court’s interference is not warranted.
50. As held by the Apex Court in the case of BAKSHISH SINGH (supra), the payment of gratuity is one of the minimal conditions of service, which must be available to the employees, notwithstanding the financial capability of the employer. In the said case, the Hon’ble Supreme Court has observed that the establishments, which have no capacity to give their workmen minimal conditions of service prescribed by the Payment of Gratuity Act, have no right to exist.
51. In this context, I may also usefully refer to the Division Bench’s judgment of Delhi High Court in the case of INDEPENDENT SCHOOLS’ FEDERATION OF INDIA (REGD) v. UNION OF INDIA & ORS. passed in W.P.(C) No.6168/2010, disposed of on 2.12.2011. In the said case, the same statutory provisions were questioned. Para 33 of the said decision reads as follows:-
“33. No doubt, this amendment may cause financial burden on the schools who will have to pay gratuity to all those teachers who retired after 3.4.1997. However, that may not be a reason sufficient to set at naught the retrospective operation of the amendment. We thus do not find any merit in this writ petition which is dismissed. There shall, however, be no order as to costs.”
52. The submission urged on behalf of the petitioners in W.P.Nos.43321/2015 and 43322/2015 that the Service and Conduct Rules of the petitioner’s Trust do not provide for the payment of gratuity to teachers is too slender a ground for this Court’s interference. It is trite that in case of conflict between the byelaws of the Society and the law, ordinarily the latter shall prevail over the former. That apart, the teachers have no strength when it comes to the question of negotiating with the managements. An unemployed person, who is appointed as a teacher would have no strength and perhaps no occasion to oppose any provision of the byelaws of the Society. If he opposes, he would run the risk of his losing the employment or the prospective employment.
53. For all the aforesaid reasons, I have no hesitation in answering the first question to the effect that the newly substituted Section 2(e) and the newly inserted Section 13-A of the said Act cannot be struck down as unconstitutional on the ground of their retrospective operation.
54. The second question that falls for my consideration is whether the Controlling Authority is justified in levying the interest on the gratuity? Sub-Section (3-A) of Section 7 of the said Act has made the payment of interest a mandatory requirement of law itself. Payment of interest is exempted by the proviso to Section 7(3-A) only if the delay is on account of fault of the employee and the employer has obtained the permission in writing from the Controlling Authority for the delayed payments. The Andhra Pradesh High Court in the case of D.PRASADA RAO v. A.P. STATE CO-OPERATIVE BANK, HYDERABAD reported in (2003) 3 LLN 980 has held that an employee is not entitled to interest, if the delay in the payment of gratuity is not attributable to the employer.
55. Rule 7 of the Payment of Gratuity (Central) Rules, 1972 (‘the said Rules’ for short) states that the employee shall ordinarily make the application within 30 days to his employer for the payment of gratuity. In respect of the legal heir of the employee, the period prescribed is one year as per Rule 7(3) of the said Rules. Further, Rule 7(5) of the said Rules states that the claim for payment of gratuity shall be entertained even after the expiry of the specified periods, provided sufficient cause is shown for the delay in preferring his claim. If the employee is not satisfied with the decision of the employer, the employee can make an application to the Controlling Authority within 90 days from the date of occurrence of the cause of action, invoking Rule 10 of the said Rules.
56. This being the scheme of the Statute and the Rules framed thereunder, the interest cannot be awarded without holding the enquiry as to who, the employee or employer, is responsible for the delay in the payment of gratuity and whether the Controlling Authority’s permission is obtained by the employer for not paying the gratuity. If an employee has not made an application/s for the payment of gratuity before the employer/Controlling Authority, or if he has not produced the documents in support of his claims, the proviso to Section 7(3-A) is attracted. In the instant cases, for softening the rigors of transition from one legal regime to another legal regime, the period for making the applications for preferring the claims can be reckoned from the date of the commencement of Act 47 of 2009.
57. There cannot be any straitjacket answer to the second question. The answer cannot be a blanket ‘yes’ or ‘no’, but it would be qualified ‘yes’ or ‘no’ depending on whether or not the two ingredients of the proviso to Section 7 (3-A) of the said Act are made out.
58. In the result, I pass the following order:
(i) The challenge to the newly substituted Section 2(e) and the newly inserted Section 13-A of the Payment of Gratuity Act, 1972 is negatived.
(ii) Writ Petition Nos.14083/2011, 29691-
29694/2011, 44827-44830/2011 and 49523/2013, wherein only the validity of amended provisions is challenged, are dismissed.
(iii) In Writ Petition Nos.51033/2012, 51034/2012, 51035/2012, 38497/2014 and 2145/2013, the amended provisions and the notices issued by the Controlling Authority are challenged. These writ petitions are dismissed but by expressly reserving the liberty to the petitioners to submit a reply to the impugned notices and to take part in the enquiry proceedings before the Controlling Authority.
(iv) Writ Petition Nos.39434/2013, 1163/2012, 37434/2013, 10429-10436/2013, 43321/2015 and 43322/2015, wherein both the amended provisions and the orders of the Controlling Authority are challenged, are dismissed but by expressly reserving the liberty to the petitioners to challenge the impugned orders passed by the Controlling Authority by way of appeal invoking Section 7(7) of the said Act. It shall be open to the petitioners to seek the exclusion of time bona fide spent on these writ proceedings invoking Section 14 of the Limitation Act, 1963. The proviso to Section 7(7) of the said Act also provides for the condonation of delay, if sufficient cause is shown for the same. If an appeal is filed within three weeks from today, the Appellate Authority shall consider the petitioners’ applications for the condonation of delay sympathetically.
(v) It shall also be open to the petitioners in Writ Petition Nos.39434/2013, 1163/2012, 37434/2013, 10429-10436/2013, 43321/2015 and 43322/2015 to establish before the Appellate Authority that they are not liable to pay the interest for the delayed period, if they are in a position to bring the interest-issue within the ambit of the proviso to Section 7(3-A) of the Payment of Gratuity Act, 1972. Needless to observe that it shall be equally open to the employees to resist the anticipated appeals of the petitioners by contending that the proviso to Section 7(3-A) is not attracted. It is for the Appellate Authority to take a call on the interest-issue after hearing both the parties.
59. Now that the Writ Petition Nos.43321/2015 and 43322/2015 are disposed of, nothing survives for consideration of I.A.No.1/16 for vacating the interim order in the said petitions. They are dismissed as having become unnecessary.
No order as to costs.
Sd/- JUDGE MD/CM/GH/VGR