Rathore Poonam C.W.P.No.917 of 1998 -1- 2013.08.31 12:58 I attest to the accuracy and integrity of this document IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.917 of 1998 Date of Decision:-30.08.2013 Smt.Raksha Rani Khosla ....Petitioner(s) versus State of Punjab and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE MAHESH GROVER *** Present:- Mr.Ish Puneet Singh, Advocate, for the petitioner.
Mr.Nilesh Bhardwaj, DAG, Punjab.
*** MAHESH GROVER, J.
The petitioner is the wife of one Sh.H.L.Khosla, who had worked as a Maths Instructor with the respondent-Institution w.e.f.26.7.1965 to 2.5.1997.
The respondent-Institution is an aided institution and receiving grants from the Government.
The husband of the petitioner having died, the petitioner pressed for the legitimate service benefits such as gratuity, leave encashment and pension etc.It is not out of place to mention here that during his service tenure, the husband of the petitioner was initially contributing towards the General Provident Fund but on the introduction of the Pensionary Scheme in 1992, he opted for the same.
Rathore Poonam C.W.P.No.917 of 1998 -2- 2013.08.31 12:58 I attest to the accuracy and integrity of this document In the reply submitted by respondents No.4 and 5, the claim of the petitioner has not been specifically denied but it has been stated in para 4 that the State Government has not so far allowed the benefits of gratuity and other pensionary benefits to the employees of the privately managed Government aided technical schools/polytechnics and the matter regarding grant of pensionary benefits to the retired/deceased employees is still under consideration of the Government.
During the pendency of this petition, the matter has been agitated in different writ petitions and on 1.10.2012, this Court while answering the appeals of number of private institutions receiving Government aid held the employees entitled to gratuity, leave encashment and other benefits.
It was held as under:- “i) As far as gratuity is concerned, as per the Division Bench judgment of this Court in Hindu College Governing Council (supra).liability is that of these non-Government colleges because of the reason that gratuity is not a part of salary and, therefore, is not reimbursable under the Grant-in- Aid Scheme.
The learned counsel for these appellants had argued that the legal provisions qua payment of gratuity had undergone a change and it had become obligation of the State to make contribution qua this as well.
However, that is not the controveRs.before us.
It is an inter se dispute between the non-Government colleges and the State of Punjab.
These appeals arise out of the writ petitions filed by the teachers/staff claiming enhanced dues of gratuity which have Rathore Poonam C.W.P.No.917 of 1998 -3- 2013.08.31 12:58 I attest to the accuracy and integrity of this document become payable on enhancing the limit of gratuity from Rs.3.5 lakhs to Rs.10 lakhs.
Insofar as these private respondents are concerned, there is no quarrel that this gratuity is payable.
Prima-facie, as per the judgment of Division Bench in the case of Hindu College Governing Council (supra).the liability is of these appellants.
Therefore, insofar as arrears on account of gratuity payable to these private respondents are concerned, it has to be paid by the appellants.
We, thus, direct the appellants to pay the amount of enhanced gratuity to the private respondents and uphold the order of the learned Single Judge on this aspect.
ii) As far as leave encashment is concerned, again amount is payable to the private respondents on this account.
Whether it is a part of salary or not is an issue which not is in the lap of the Apex Court.
Though this Court has held it to be a part of salary of which grant-in-aid is payable by the State Government, that direction has virtually been stayed by the Apex Court, by staying the contempt proceedings.
This dispute between the non-Government colleges and the State Government cannot be allowed as a shield for denying the payment to the private respondents, which is admittedly, due to them.
Whether it comes from the pocket of the Rathore Poonam C.W.P.No.917 of 1998 -4- 2013.08.31 12:58 I attest to the accuracy and integrity of this document appellants or from the coffers of the State Government is not their concern.
Having regard to the dicta of Shri Anandi Murti’s case (supra).we are of the opinion that the appellants should meet this liability as well by making payment to the private respondents without any further ado, inasmuch as, the private respondents were the employees of these appellant-colleges and, therefore, having regard to the relation of master and servant between them, the appellants cannot shy away from their primary responsibility to pay this amount.
It would, however, be open to these non-Government colleges to claim reimbursement from the State of Punjab in case Division Bench judgment of this Court dated 5.4.2011 in LPA No.519 of 2011 [Anglo Sanskrit High School Khanna Trust and Management Society (Regd.).Khanna and Anr.
versus State of Punjab and others].is ultimately upheld by the Supreme Court.
iii) Insofar as arrears of pay and allowances are concerned, 90% of these arrears are payable by the State Government.
To that extent, this liability could not be denied by the State Rathore Poonam C.W.P.No.917 of 1998 -5- 2013.08.31 12:58 I attest to the accuracy and integrity of this document Government.
It is not in dispute that the amount payable under this head is very substantial.
The appellants are not supposed to run educational institutions with profit motives as education is treated as a benevolent activity/noble profession and not commerce or industry.
(See Modern School v.
Union of India and otheRs.(2004) 5 Supreme Court Cases 583).No doubt, it is the primary obligation of the appellants to make this payment to their teachers and staff and State Government is supposed to reimbuRs.the same, as held by the Division Bench of this Hon’ble Court on earlier occasions.
In K.C.Sharma versus State of Punjab, (CWP No.3583 of 2007).following directions dated 17.12.2010 were given by this Court:- “(iii) The issue of revised pay has been dealt with in Suram Singh and Sadhu Singh (supra) and while in Suram Singh, (supra).a direction was issued that arrears of revision of pay scales will be given on receipt of grant from the State Government, in Sadhu Singh, (supra).it was directed that the State Government should release the grant.
From the scheme of grant-in-aid, Annexure D3, it is clear that for pay and allowances, grant-in-aid has to be paid.
From Annexure D4, circular of the Central Government dated 27.7.1998, the Central Government has provided Rathore Poonam C.W.P.No.917 of 1998 -6- 2013.08.31 12:58 I attest to the accuracy and integrity of this document financial assistance to the State Government who revised pay scales to the extent of 80% of the additional expenditure involved and the State Government were to meet the remaining 20% expenditure.
The State of Punjab vide notification dated 24.3.1999, Annexure D5 revised the pay scales of Privately Affiliated Colleges in the State of Punjab at par with the Government Colleges w.e.f.1.1.1996.
From the above, it is clear that liability to give arrears w.e.f.1.1.1996 is of the State of Punjab and 95% aid has to be given by the State Government.
Accordingly, we direct that leave encashment benefit be given by Respondent No.2-management of the College, irrespective of aid from the State, while arrears of pay be given by Respondent No.3-College within one month from the date of receipt of the aid from the State in that regard.
The State of Punjab is directed to release benefits for the arrears within three months from today.”
It is also trite law that financial crunch of the State Government cannot be a ground to deny the payments as held in CWP No.10097 of 2000 titled as Sadhu Singh and 129 others versus State of Punjab and otheRs.decided on August 07, 2002.
In this conspectus and having regard to the totality of circumstances, we feel that ends of justice would be met by prescribing the following modalities/procedure for payments qua arrears of salary:- (A) Within fifteen days from today, the appellants Rathore Poonam C.W.P.No.917 of 1998 -7- 2013.08.31 12:58 I attest to the accuracy and integrity of this document shall make the calculations of the arrears of salary payable to the private respondents and ascertain the share of the State Government.
Details of these calculations shall be forwarded by the appellants to the State Government.
(B) The State Government shall examine veracity of those calculations and ascertain its share as per Grant-in-Aid Scheme and release it by making payment to the educational institutions within two months from the receipt of calculations from the appellants.
(C) Within ten days of the receipt of grant-in-aid from the State of Punjab, the amount under this head shall be released to the private respondents.
It is made clear that this period is prescribed for making the payment on account of arrears of pay.
Insofar as payment of gratuity and ‘leave encashment’ is concerned, that shall be paid by the appellants to the private respondents within one month from today.”
In view of the above, I am of the opinion that the petitioner is entitled to gratuity and leave encashment on account of the service rendered by her husband with the respondent-Institution.
Similarly, it is no longer in dispute that the employees of the Government aided schools/institutions are also entitled to the pensionary benefits.
Rathore Poonam C.W.P.No.917 of 1998 -8- 2013.08.31 12:58 I attest to the accuracy and integrity of this document The writ petition is disposed of with a direction to the respondents to consider the case of the writ petitioner for grant of aforesaid benefits in the light of the judgments rendered by this Court and release the benefits to her as expeditiously as possible, preferably within a period of four months from the date of receipt of certified copy of this order.
August 30, 2013 ( MAHESH GROVER) poonam JUDGE