Dear Sir
I have been queried as to whether Teachers are entitled to
Gratuity under the Payment of Gratuity Act, 1972. I give
herein below my considered Legal Opinion on the said
Query:
OPINION:
Section 2 (e) of the Payment of Gratuity Act, 1972 defined
employee as follows:
2(e). “employee” means any person (other than an
apprentice) employed on wages, in any establishment,
factory, mine, olifield, 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.
The Hon’ble Supreme Court of India in the case
of Ahmedabad Pvt. Primary Teachers’ Association v/s
Administrative Officer and Ors was pleased to hold that the
work performed by Teachers could not be said to be
“skilled,” “semi-skilled,” “unskilled,” “manual,”
“supervisory,” “technical” or “clerical” and neither were
they doing work of a “managerial” or “administrative”
nature and that thus, Teachers were not covered under the
definition of “Employee” under Section. The Hon’ble
Supreme Court further held that though Teachers they do
some administrative work as part of their duty with
teaching, since their main job is imparting education, they
cannot be held to be emploved in “managerial” or
“administrative” capacity and laid down that Teachers are
clearly not intended to be covered by the definition of
“employee” under Section 2 (e) of the Gratuity Act.
Thereafter, vide the Payment of Gratuity (Amendment Act)
No. 47 of 2009 dated 47 of 2009, the said definition of
“Employee” came to be amended and the said amended
definition read as follows:
2(e). “employee” means any person (other than an
apprentice) who is employed for wages, whether the terms
of such employment are express or implied, in any kind of
work, manual or otherwise, in or in connection with the
work of a factory, mine. Oilfield, plantation, port, railway
company, shop or other establishment to which this Act
applies, 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.
2
Section 13A was also inserted vide the above-mentioned
Amendment Act and the said Amendment was made
effective retrospectively from 03.04.1997. After the said
Amendment, Teachers became entitled retrospectively for
payment of Gratuity from 03.04.1997.
Thereafter, vide the above-mentioned Amending Act viz.
(Act no. 47 of 2009) whereby the definition of “Employee”
was amended came to be wholly repealed vide the
Repealing and Amending Act, 2016 (Act No. 23 of 2016)
dated 09.05.2016. I am attaching the said Act herewith.
The Gratuity repeal is on page no. 12, whih is highlighted.
The said Repealing and Amending Act contains a saving
clause which states that the said Act shall not affect the
validity, invalidity, effect or consequences of anything
already done or suffered, or any right, title, obligation or
liability already acquired, accrued or incurred, or any
remedy or proceeding in respect thereof, or any release or
discharge of or from any debt, penalty, obligation, liability,
claim or demand, or any indemnity already granted, or the
proof of any past act or thing.
It is therefore my considered Legal Opinion that the
effect of this savings clause is that Teachers whose
cause of action or entitlement for Gratuity falls
between 03.04.1997 and 09.05.2016 will be entitled
to Gratuity under the Gratuity Act, but Teachers
whose tenure of employment cones to an end after
09.05.2016 will not be eligible for claiming Gratuity
under the Act, since the effect of the said Repealing
and Amending Act is that the old definition of
“Employee” prior to the Amending Act No. 47 of
2009 is now reinstated.
I say that as per the said GR, an employee is entitled to
Gratuity as per Rule 111(2) of the Maharashtra Civil Services
(Pension) Rules, 1982
Yours faithfully,
Mukund S. Jambaulikar
ADVOCATE
