Birla Institute of Technology Vs. State of Jharkhand and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/516676
SubjectService
CourtJharkhand High Court
Decided OnApr-02-2008
Judge M. Karpaga Vinayagam, C.J. and; D.G.R. Patnaik, J.
Reported in[2008(2)JCR530(Jhr)]
AppellantBirla Institute of Technology
RespondentState of Jharkhand and ors.
DispositionAppeal dismissed
Cases ReferredCimmco Wagon Factory v. Vlrendra Kumar Sharma and Anr.
Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - 4, by saying that (2004)illj596sc would not cover the educational institutions like the appellant, especially, when the respondent no. as a matter of fact, there is a finding of fact by the controlling authority, the 3rd respondent as well as appellate authority, the 2nd respondent, as well as by the learned single judge that the word 'establishment' found in section 2(3) is comprehensive to include within its ambit all kinds of institutions like the appellant giving technical education. the perusal of section 2(e) would clearly indicate that for a person to be termed as an employee, he should be engaged in any establishment or other organization mentioned therein is any capacity whether to do any skilled, semi skilled, unskilled, manual, supervisory, technical or clerical work. 4 would clearly indicate that the respondent no. (iv) the letters dated 25.1.1977 and 15.9.1976 from the head of the mechanical engineering department as well as letter dated 11.6.1979 of professor of training and placement of the appellate institute would show the nature of duties performed by the respondent no. it is clearly stated in these letters that respondent no. (e) on the basis of these materials, it was found on facts by the controlling authority which was confirmed by the appellate authority as well as by the learned single judge that the respondent no. the object is not to teach new engineering science but to help the students learn how to use purposefully and effectively what they already know. thus the design is not limited to its traditional area of machine design, but includes heat transfer, fluid mechanics, electronics and other areas as well. on the other hand, no witness was produced on behalf of the appellant to establish that he was not entrusted with the technical work nor he was a skilled worker, (j) it is the specific finding given by the controlling authority that the work of a technical teacher like the respondent no. (a) this point also has been considered by both the controlling authority and the appellate authority as well as the learned single judge in detail. 4 is 30 years and on that reason, both the controlling authority as well as the appellate authority has correctly rejected the contention. (f) therefore, the second ground also has to fail. the teachers are clearly not intended to be covered by the definition of 'employee'.(b) the reading of the entire judgment including the said paragraph would clearly show that the judgment was rendered in the case of primary school teachers and it cannot be expected that they should be possessed of expert knowledge. (c) the supreme court was not considering the case of an employee who was doing technical work which has been clearly specified in section 2(e) of the act to bring an employee within the ambit of section 2(e) of the act. as indicated in the above paragraphs, the duties entrusted to the skilled and technical person like respondent no. 4 is a teacher in the petitioner-institution but he is possessed of a degree in mechanical engineering and in course of his employment he not only teaches the students but also performs other functions like imparting technical knowledge even based on material testing in a laboratory. ' (e) this observation by the learned single judge to reject this point, in our view, is perfectly justified. 4 in the light of the fact that the said case was decided relating to ordinary primary school teacher whose details of duties were discussed in the said judgment and those duties are entirely different from the duties enjoined upon the skilled employees and technical persons like that of respondent no.m. karpaga vinayagam, c.j.1. birla institute of technology is the appellant herein, which is a deemed university under section 3 of the university grants act.2. dr. kailash vihari who was working as assistant professor in the institute, got superannuated. thereafter he filed an application before the controlling authority under the payment of gratuity act, i.e., the 3rd respondent, claiming gratuity. the third respondent by the order dated 7.9.2002 allowed the application. being aggrieved, the institute filed an appeal before the commissioner, labour, training and employment, government of jharkhand, the 2nd respondent, who, in turn, dismissed the same. thereupon, the institute filed the writ petition before the learned single judge, who, in turn, dismissed the same. hence, this appeal has been filed in the letters patent jurisdiction of this court.3. the factual background relating to filing of the present appeal is given hereunder:(i) the appellant is a deemed university. dr. kailash vihari, the 4th respondent joined the institute as an assistant professor on 16.9.1971.(ii) he got superannuated on 30.11.2001. thereafter the respondent no. 4 filed the application before the appellant institute claiming gratuity under section 7(1) of the payment of gratuity act.(iii) this application was rejected by the institute, the appellant herein, on 24.12.2001.(iv) thereupon on 23.1.2002, the respondent no. 4 made an application before the controlling authority, the 3rd respondent herein, challenging the rejection order by the employer, the appellant.(v) the controlling authority, entertaining the said application, summoned the appellant-employer to file their objection and show-cause. accordingly, they filed the show-cause and raised preliminary objection on 17.4.2002, stating that it is not maintainable as he is not entitled.(vi) after inquiry, the controlling authority passed an order dated 7.9.2002 allowing the application of the respondent no. 4 holding therein that the respondent no. 4 is entitled to gratuity and directing the appellant-employer to pay an amount of rs. 3,38,796/-along with 10% simple interest per annum from january, 2002 till the payment to the respondent no. 4.(vii) being aggrieved by the aforesaid order, the appellant preferred an appeal before the commissioner, labour and training, the 2nd respondent in p.g. appeal no. 12 of 2002.(viii) after holding the counsel for the parties, the appellate authority by order dated 15.4.2005 rejected the appeal and confirmed the order passed by the controlling authority.(ix) aggrieved by the aforesaid orders, the appellant preferred writ petition before this court, which was registered as w.p.(s) no. 2572 of 2005 and the same was dismissed by the order dated 12.1.2007.(x) challenging the same, this letters patent appeal has been filed.4. the common grounds for challenge before the appellate authority and before the learned single judge before this court could be summarized as follows:(i) the respondent no. 4 is not an employee within the meaning of payment of gratuity act, 1972.(ii) the notification dated 3.4.1997 issued by the central government would not cover the respondent no. 4, especially when respondent no. 4 has not completed 5 years of continuous service after notification dated 3.4.1997, as such he is not entitled to claim gratuity.(iii) the judgment reported in ahmedabad private teachers' association v. administrative officer and ors. : (2004)illj596sc , in which it has been held by the supreme court that the teachers are not the employees of the establishment would apply to the present facts and circumstances of the case and therefore, wrong finding has been given without considering the ratio decided by the supreme court by the authorities including the learned single judge.5. as regards the first point, the learned counsel for the appellant submits that the respondent no. 4 is not an employee within the meaning of section 2(e) of the act. the nature of job of respondent no. 4 was to impart education/knowledge to the students of his faculty and as such he cannot be considered to be the employee so as to attract section 2(e) of the act.6. in reply to the same, the learned counsel for the respondent no. 4 stated that the respondent no. 4 is a qualified mechanical engineer and he being employed as an assistant professor teaching definite subject comes within the definition of employee within the meaning of section 2(e) of the payment of gratuity act. since he being a qualified engineer, teaching technical subjects in the institute and engaging in material testing in the laboratory etc. he works as a skilled employee and as such is an employee within the meaning of section 2(e) of the act and is entitled to benefits under the act.7. as regards second point, the learned counsel for the petitioner-appellant would contend that though there is no dispute that by notification dated 3.4.1997 provisions of the act was made for educational institution, the same was not applicable to the respondent no. 4, especially when he has not completed 5 years' continuous service after notification dated 3.4.1997.8. in reply to the above submission, it is contended by the respondent no. 4 that he joined the institute in the year 1971, he was working in the institution on the date of notification and he got retired only in 2001 and therefore, 5 years' period has to be calculated from the date of joining of service and not from the date of notification.9. with reference to the third point, it is specifically contended by the counsel for the petitioner that the question, whether the teachers in the educational institution is an employee, as contemplated under section 2(e) of the act, has already been decided in : (2004)illj596sc , therefore, the ratio decided there has to be followed in this case also.10. this contention is refuted by the learned counsel for the respondent no. 4, by saying that : (2004)illj596sc would not cover the educational institutions like the appellant, especially, when the respondent no. 4 has been entrusted with the job of technical nature and the said judgment would relate to the primary school teachers. therefore, the ratio so decided in that case would apply on the facts and circumstances of that case only. therefore, the same would not apply to the present facts since we are concerned with the technical institute in which the respondent no. 4 has been entrusted with the technical work.11. both the counsel for the parties would cite number of authorities apart from : (2004)illj596sc to substantiate their respective pleas.learned counsel for the appellant would refer to the following decisions:(i) ahmedabad private primary teachers' association v. administrative officer and ors. : (2004)illj596sc .(ii) state of maharashtra and ors. v. dr. hari shankar vaidhya and ors. : [1997]3scr697 .(iii) h.e. education society v. the appellate authority under the payment of gratuity act, (2000) lab. i.c. 3478 (mp).learned counsel for the respondents would cite the following judgments:(i) aspinwall & co. v. lalitba padugady and ors. : air1996sc580 .(ii) central coalfields ltd. v. union of india and ors. : (1998)iiillj715sc .(iii) commissioner, tiruvarur municipality v. deputy commissioner of labour 1995 lab. i.c. 2323.(iv) ahmedabad private primary teachers association v. administrative officer and ors. : (2004)illj596sc .(v) m.c. chamaraju v. hind nippon rural industrial (p) ltd. : air2007sc2946 .(vi) factory manager, cimmco wagon factory v. vlrendra kumar sharma and anr. : (2000)iillj775sc .12. we have carefully considered the submissions made by the counsel for the parties and also gone through the judgments.13. before considering the question raised in this appeal, it is deemed proper to refer to section 2(e) of the payment of gratuity act. the word 'employee' which has been defined under section 2(e) of the payment of gratuity act is as follows:2(e) 'employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, 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 an rules providing for payment of gratuity.(a) according to the learned counsel for the appellant, the respondent no. 4 is not an employee within the meaning of section 2(e) of the act as he was not employed on wages in any of the organization enumerated therein. of course, it is true that the respondent no. 4 is not an employee of the factory, mine, oilfield, plantation, port, railway yard or shop. however, this section also includes any establishment. as a matter of fact, there is a finding of fact by the controlling authority, the 3rd respondent as well as appellate authority, the 2nd respondent, as well as by the learned single judge that the word 'establishment' found in section 2(3) is comprehensive to include within its ambit all kinds of institutions like the appellant giving technical education.(b) the above aspect is not seriously challenged now by the learned counsel for the appellant. however, it is contended by the learned counsel for the appellant that in view of the nature of job entrusted to respondent no. 4, he cannot be termed as an employee within the meaning of section 2(e) of the act as he only imparts technical education and as such he is only a teacher and therefore, he cannot be termed to be a skilled person or technical person. the perusal of section 2(e) would clearly indicate that for a person to be termed as an employee, he should be engaged in any establishment or other organization mentioned therein is any capacity whether to do any skilled, semi skilled, unskilled, manual, supervisory, technical or clerical work.(c) it cannot be disputed that the respondent no. 4 is a highly qualified technical person. he is a master and doctorate degree holder in the mechanical engineering and as such he is mechanical engineer. he is a technical teacher of an engineering/ educational college, namely, the appellant. the technical teachers of engineering colleges are appointed or engaged for skilled, supervisory and technical works. the documents produced by the respondent no. 4 would clearly indicate that the respondent no. 4 is a technical teacher of mechanical engineering and has to supervise technical work of final year engineering students, who submit project work. the project work is highly skilled. besides he is duty bound to supervise chemical work in laboratories and supervise material testing.(d) from the documents produced before the controlling authority by the respondent no. 4, the following facts are emerged:(i) the respondent no. 4 is a bachelor, masters and doctorate degree holder in mechanical engineering.(ii) he is a mechanical engineer being a skilled employee, who has been entrusted with the technical work.(iii) engineering education is called technical education. as per letter dated 14.5.1969 of the education officer (technical) government of india and letter dated 7.8.1969 of i.i.t., kharagpur, the respondent no. 4 is a trained technical teacher.(iv) the letters dated 25.1.1977 and 15.9.1976 from the head of the mechanical engineering department as well as letter dated 11.6.1979 of professor of training and placement of the appellate institute would show the nature of duties performed by the respondent no. 4 and other teachers of the mechanical engineering department. it is clearly stated in these letters that respondent no. 4 was an investigator and professor-in-charge in a testing team in the material testing laboratory. the material testing is a skilled and technical job. the students of various semester of mechanical engineering are required to conduct testing of various engineering materials in the strength of materials laboratory for finding the engineering properties of the materials for use in design and construction of machines, buildings, bridges, etc. further, these testings are done under the supervision of a teacher.(e) on the basis of these materials, it was found on facts by the controlling authority which was confirmed by the appellate authority as well as by the learned single judge that the respondent no. 4 was a skilled technical supervisory employee in the appellant institute.(f) the appellant institute is a technical/engineering institute in which activities of imparting knowledge of training are carried on systematically. the engineers are basically skillful designers. the objective of course of engineering design is to help the students develop skills in applying what they had learnt in their science. the object is not to teach new engineering science but to help the students learn how to use purposefully and effectively what they already know. thus the design is not limited to its traditional area of machine design, but includes heat transfer, fluid mechanics, electronics and other areas as well.(g) the letters of the head of the department of mechanical engineering show that the respondent no. 4 had been teaching and coordinating in machine design, engineering design etc. and as such he has been developing skill and knowledge in the students. the entire work of a technical teacher relates to machines, materials and construction etc. and hence all these works are technical.(h) it is true that all categories of employees working in technical educational institutions will not be covered under the provisions of payment of gratuity act, but definitely those employees working in technical educational institutions who are doing skilled or technical work as is the case of respondent no. 4 will be covered.(i) as pointed out by the learned counsel for the respondent no. 4, the controlling authority who decided the issue, considered the oral and documentary evidence produced by the parties and has come to the finding of fact on the basis of the evidence adduced by the respondent no. 4 during the course of cross-examination to the effect that the respondent no. 4 was posted as assistant professor (mechanical) and used to teach course in technical subjects to all as a technical person and skilled worker. on the other hand, no witness was produced on behalf of the appellant to establish that he was not entrusted with the technical work nor he was a skilled worker,(j) it is the specific finding given by the controlling authority that the work of a technical teacher like the respondent no. 4 is to perform most of his work as supervisor while the technicians are working on machines and when they work then the technique and full skill is required.(k) as indicated above, the finding of facts on this point that the respondent no. 4 is an employee within the meaning of section 2(e) of the act has been confirmed under the order of the appellate authority. the following is the relevant observation made by the appellate authority:with regard to point no. 2 it is stated that if any persons comes under the definition of 'employee' under section 2(e) of the payment of gratuity act, 1972 or not, it is a mixed question of facts and law. respondent is not teacher of any normal school, but is technical teacher in an engineering college meaning thereby he is a technical teacher of a technical institute. the nature of work of any engineer cannot be stated as unskilled. from the letter of recommendations sent by the institution of the appellants to the secretary, union public service commission, it becomes evident that the respondent used to perform supervisory and administrative work also along with the teaching, meaning thereby respondent has performed skilled, technical, supervisory and administrative work, therefore, he comes under the definition of 'employee' under section 2(e) of the payment of gratuity act, 1972.(l) it is also clear from the order of appellate authority that the institution of the appellant, i.e., b.i.t. mesra has remained affiliated with ranchi university since its establishment in 1955. the benefit of gratuity has been provided to the teachers of ranchi university. in the year 1986, b.i.t. mesra, ranchi has been provided the status of deemed university. from the advertisement no. f.r./01/2003 of b.i.t. & science, pilani (rajasthan) produced by the respondent no. 4 it becomes evident that the teachers of b.i.t. & science, pilani (rajasthan) also are paid the gratuity. in such situation, as correctly held by the appellate authority, teachers of b.i.t., mesra (jharkhand) cannot be deprived of the gratuity.(m) in view of the concurrent finding of fact in respect of 1st point that the petitioner is a technical teacher, doing skilled and technical work as defined under section 2(e) of the act, which has been confirmed by the learned single judge, this court sitting in appeal will not interfere in the said finding.14. let us now come to the second point, i. e., with regard to question as to whether respondent no. 4 is covered under the notification dated 3.4.1997 issued by the central government, especially when he has not completed 5 years of continuous service.(a) this point also has been considered by both the controlling authority and the appellate authority as well as the learned single judge in detail.(b) it is contended by the learned counsel for the appellant that the provisions of the payment of gratuity act has been extended to educational institutions by notification dated 3.4.1997 and it is only applicable to non-teaching staff of institute and this will not definitely cover respondent no. 4, who has not completed 5 years of continuous service.(c) this contention, as correctly pointed out by the learned single judge, has no force. it is true that the payment of gratuity act. 1972 has been implemented in the institute of the appellant through the notification of the government of india dated 3.4.1997 having formulated a separate act for the educational institutions, the government of india has implemented it with effect from 3.4.1997. it means such workman of the educational institution who has superannuated before 3.4.1997 are not entitled to gratuity, but the workman superannuated on or after 3.4.1997 shall be entitled to gratuity. the reckoning of the service period for the purpose of eligibility of gratuity is made under section 4 of the payment of gratuity act, 1972, which contains the provisions of reckoning the total service of the workman. admittedly, the total service of the respondent no. 4 is 30 years and on that reason, both the controlling authority as well as the appellate authority has correctly rejected the contention.(d) while dealing with this point, the learned single judge would reject the said contention on the basis of the observations made by the supreme court in : air1996sc580 . in the said judgment, the supreme court considered the commencement of the period for continuous service and observed as under:the starting point of the said period is from the date an employee gets employment, which in the nature of things would vary from employee to employee. it is nowhere envisaged in the scheme from the above provisions that the continuous service of the employee would be computed in a chain, from calendar year to calendar year. completed year of service would plainly mean continuous service for one year reckonable from the date of joining employment.(e) as indicated above, the act became applicable to the employees of educational institution with effect from 3.4.1997. at that time, petitioner was in service and he retired only in 2001. as such, his entire period of service has to be reckoned for the purpose of payment of gratuity.(f) therefore, the second ground also has to fail.15. the next question is as to whether the judgment reported in : (2004)illj596sc is applicable in the present facts and circumstances of the case.(a) this point has been dealt with by the learned single judge in detail. it is true as pointed out by the learned counsel for the appellant that apex court in : (2004)illj596sc held that a teacher employed in a school is not an employee within the meaning of section 2(e) of the act. let us refer to the relevant observations made by the supreme court:24. the contention advanced that teachers should be treated as included in the expression 'unskilled' or 'skilled' cannot, therefore, be accepted. the teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. a trained teacher is not described in the industrial field or service jurisprudence as a 'skilled employee'. such adjective generally is used for an employee doing manual or technical work. similarly, the words 'semi-skilled' and 'unskilled' are not understood in educational establishments as describing nature of job of untrained teachers. we do not attach much importance to the arguments advanced on the question as to whether 'skilled', 'semi-skilled' and 'unskilled' qualify the words 'manual', 'supervisory', 'technical' or 'clerical' or the above words qualify the word 'work'. even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. trained or untrained teachers are not 'skilled', 'semi-skilled', 'unskilled', 'manual', 'supervisory', 'technical' or 'clerical' employees. they are also not employed in 'managerial' or 'administrative' capacity. occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in 'managerial' or 'administrative' capacity. the teachers are clearly not intended to be covered by the definition of 'employee'.(b) the reading of the entire judgment including the said paragraph would clearly show that the judgment was rendered in the case of primary school teachers and it cannot be expected that they should be possessed of expert knowledge. in that context, the apex court held that the teachers in the primary school do not fall within the definition of employee under the act.(c) the supreme court was not considering the case of an employee who was doing technical work which has been clearly specified in section 2(e) of the act to bring an employee within the ambit of section 2(e) of the act. as indicated in the above paragraphs, the duties entrusted to the skilled and technical person like respondent no. 4 is entirely different from the teacher working in the primary school.(d) similarly, the learned single judge has also given the reason as to why this point has to be rejected in the following observation.16. based upon above observations, it is contended that teachers have not been held to be 'employee' within the meaning of section 2(e) of the act and thus benefit of gratuity is not available to respondent no. 4. it is relevant to notice that the judgment was rendered in the case of primary school teachers and they cannot be said to be possessed of any expert knowledge of teaching or any technical or any skilled knowledge. it is under these circumstances, apex court held that the teachers do not fall within the definition of 'employee' under the act. though respondent no. 4 is a teacher in the petitioner-institution but he is possessed of a degree in mechanical engineering and in course of his employment he not only teaches the students but also performs other functions like imparting technical knowledge even based on material testing in a laboratory. by and large, the nature of job of the petitioner as a teacher in engineering faculty cannot be considered to be teaching job simplicitor. such a job, though academic, is also technical in nature. in my humble opinion, above judgment will not apply in the present case.'(e) this observation by the learned single judge to reject this point, in our view, is perfectly justified.17. hence, all these three points have been considered by both the controlling authority and the appellate authority in the proper perspective and the findings of fact have been rendered rejecting the contention on the basis of the materials produced by the respondent no. 4. learned single judge also considered these points and rejected ail these points on the basis of the various judgments rendered by the supreme court. as indicated above, the learned single judge held that : (2004)illj596sc would not apply to the case of the respondent no. 4 in the light of the fact that the said case was decided relating to ordinary primary school teacher whose details of duties were discussed in the said judgment and those duties are entirely different from the duties enjoined upon the skilled employees and technical persons like that of respondent no. 4.18. the other judgments cited by both the learned counsel need not be dealt with as those judgments do not relate to the present question raised in this case.19. in view of the discussions made in above paragraphs, we find no merits in this appeal. hence, it is dismissed.d.g.r. patnaik, j.20. i agree.
Judgment:

M. Karpaga Vinayagam, C.J.

1. Birla Institute of Technology is the appellant herein, which is a deemed University under Section 3 of the University Grants Act.

2. Dr. Kailash Vihari who was working as Assistant Professor in the Institute, got superannuated. Thereafter he filed an application before the Controlling Authority under the Payment of Gratuity Act, i.e., the 3rd respondent, claiming Gratuity. The third respondent by the order dated 7.9.2002 allowed the application. Being aggrieved, the Institute filed an appeal before the Commissioner, Labour, Training and Employment, Government of Jharkhand, the 2nd respondent, who, in turn, dismissed the same. Thereupon, the Institute filed the writ petition before the learned single Judge, who, in turn, dismissed the same. Hence, this appeal has been filed in the Letters Patent Jurisdiction of this Court.

3. The factual background relating to filing of the present appeal is given hereunder:

(i) The appellant is a deemed University. Dr. Kailash Vihari, the 4th respondent joined the institute as an Assistant Professor on 16.9.1971.

(ii) He got superannuated on 30.11.2001. Thereafter the respondent No. 4 filed the application before the appellant institute claiming gratuity under Section 7(1) of the Payment of Gratuity Act.

(iii) This application was rejected by the institute, the appellant herein, on 24.12.2001.

(iv) Thereupon on 23.1.2002, the respondent No. 4 made an application before the Controlling Authority, the 3rd respondent herein, challenging the rejection order by the employer, the appellant.

(v) The Controlling Authority, entertaining the said application, summoned the appellant-employer to file their objection and show-cause. Accordingly, they filed the show-cause and raised preliminary objection on 17.4.2002, stating that it is not maintainable as he is not entitled.

(vi) After inquiry, the Controlling Authority passed an order dated 7.9.2002 allowing the application of the respondent No. 4 holding therein that the respondent No. 4 is entitled to gratuity and directing the appellant-employer to pay an amount of Rs. 3,38,796/-along with 10% simple interest per annum from January, 2002 till the payment to the respondent No. 4.

(vii) Being aggrieved by the aforesaid order, the appellant preferred an appeal before the Commissioner, Labour and Training, the 2nd respondent in P.G. Appeal No. 12 of 2002.

(viii) After holding the counsel for the parties, the Appellate Authority by order dated 15.4.2005 rejected the appeal and confirmed the order passed by the Controlling Authority.

(ix) Aggrieved by the aforesaid orders, the appellant preferred writ petition before this Court, which was registered as W.P.(S) No. 2572 of 2005 and the same was dismissed by the order dated 12.1.2007.

(x) Challenging the same, this Letters Patent Appeal has been filed.

4. The common grounds for challenge before the Appellate Authority and before the learned single Judge before this Court could be summarized as follows:

(i) The respondent No. 4 is not an employee within the meaning of Payment of Gratuity Act, 1972.

(ii) The notification dated 3.4.1997 issued by the Central Government would not cover the respondent No. 4, especially when respondent No. 4 has not completed 5 years of continuous service after notification dated 3.4.1997, as such he is not entitled to claim Gratuity.

(iii) The Judgment reported in Ahmedabad Private Teachers' Association v. Administrative Officer and Ors. : (2004)ILLJ596SC , in which it has been held by the Supreme Court that the teachers are not the employees of the establishment would apply to the present facts and circumstances of the case and therefore, wrong finding has been given without considering the ratio decided by the Supreme Court by the authorities including the learned single Judge.

5. As regards the first point, the learned Counsel for the appellant submits that the respondent No. 4 is not an employee within the meaning of Section 2(e) of the Act. The nature of job of respondent No. 4 was to impart education/knowledge to the students of his faculty and as such he cannot be considered to be the employee so as to attract Section 2(e) of the Act.

6. In reply to the same, the learned Counsel for the respondent No. 4 stated that the respondent No. 4 is a qualified mechanical engineer and he being employed as an Assistant Professor teaching definite subject comes within the definition of employee within the meaning of Section 2(e) of the Payment of Gratuity Act. Since he being a qualified engineer, teaching technical subjects in the institute and engaging in material testing in the laboratory etc. he works as a skilled employee and as such is an employee within the meaning of Section 2(e) of the Act and is entitled to benefits under the Act.

7. As regards second point, the learned Counsel for the petitioner-appellant would contend that though there is no dispute that by notification dated 3.4.1997 provisions of the Act was made for educational institution, the same was not applicable to the respondent No. 4, especially when he has not completed 5 years' continuous service after notification dated 3.4.1997.

8. In reply to the above submission, it is contended by the respondent No. 4 that he joined the institute in the year 1971, he was working in the institution on the date of notification and he got retired only in 2001 and therefore, 5 years' period has to be calculated from the date of joining of service and not from the date of notification.

9. With reference to the third point, it is specifically contended by the counsel for the petitioner that the question, whether the teachers in the educational institution is an employee, as contemplated under Section 2(e) of the Act, has already been decided in : (2004)ILLJ596SC , therefore, the ratio decided there has to be followed in this case also.

10. This contention is refuted by the learned Counsel for the respondent No. 4, by saying that : (2004)ILLJ596SC would not cover the educational institutions like the appellant, especially, when the respondent No. 4 has been entrusted with the job of technical nature and the said judgment would relate to the primary school teachers. Therefore, the ratio so decided in that case would apply on the facts and circumstances of that case only. Therefore, the same would not apply to the present facts since we are concerned with the technical institute in which the respondent No. 4 has been entrusted with the technical work.

11. Both the counsel for the parties would cite number of authorities apart from : (2004)ILLJ596SC to substantiate their respective pleas.

Learned counsel for the appellant would refer to the following decisions:

(i) Ahmedabad Private Primary Teachers' Association v. Administrative Officer and Ors. : (2004)ILLJ596SC .

(ii) State of Maharashtra and Ors. v. Dr. Hari Shankar Vaidhya and Ors. : [1997]3SCR697 .

(iii) H.E. Education Society v. The Appellate Authority under the Payment of Gratuity Act, (2000) Lab. I.C. 3478 (MP).

Learned counsel for the respondents would cite the following judgments:

(i) Aspinwall & Co. v. Lalitba Padugady and Ors. : AIR1996SC580 .

(ii) Central Coalfields Ltd. v. Union of India and Ors. : (1998)IIILLJ715SC .

(iii) Commissioner, Tiruvarur Municipality v. Deputy Commissioner of Labour 1995 Lab. I.C. 2323.

(iv) Ahmedabad Private Primary Teachers Association v. Administrative Officer and Ors. : (2004)ILLJ596SC .

(v) M.C. Chamaraju v. Hind Nippon Rural Industrial (P) Ltd. : AIR2007SC2946 .

(vi) Factory Manager, Cimmco Wagon Factory v. Vlrendra Kumar Sharma and Anr. : (2000)IILLJ775SC .

12. We have carefully considered the submissions made by the counsel for the parties and also gone through the Judgments.

13. Before considering the question raised in this appeal, it is deemed proper to refer to Section 2(e) of the Payment of Gratuity Act. The word 'employee' which has been defined under Section 2(e) of the Payment of Gratuity Act is as follows:

2(e) 'employee' means any person (other than an apprentice) employed on wages, in any establishment, factory, mine, oilfield, 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 an rules providing for payment of gratuity.

(a) According to the learned Counsel for the appellant, the respondent No. 4 is not an employee within the meaning of Section 2(e) of the Act as he was not employed on wages in any of the organization enumerated therein. Of course, it is true that the respondent No. 4 is not an employee of the factory, mine, oilfield, plantation, port, railway yard or shop. However, this section also includes any establishment. As a matter of fact, there is a finding of fact by the Controlling Authority, the 3rd respondent as well as Appellate Authority, the 2nd respondent, as well as by the learned single Judge that the word 'establishment' found in Section 2(3) is comprehensive to include within its ambit all kinds of institutions like the appellant giving technical education.

(b) The above aspect is not seriously challenged now by the learned Counsel for the appellant. However, it is contended by the learned Counsel for the appellant that in view of the nature of job entrusted to respondent No. 4, he cannot be termed as an employee within the meaning of Section 2(e) of the Act as he only imparts technical education and as such he is only a teacher and therefore, he cannot be termed to be a skilled person or technical person. The perusal of Section 2(e) would clearly indicate that for a person to be termed as an employee, he should be engaged in any establishment or other organization mentioned therein is any capacity whether to do any skilled, semi skilled, unskilled, manual, supervisory, technical or clerical work.

(c) It cannot be disputed that the respondent No. 4 is a highly qualified technical person. He is a master and doctorate degree holder in the Mechanical Engineering and as such he is Mechanical Engineer. He is a technical teacher of an Engineering/ Educational College, namely, the appellant. The technical teachers of engineering colleges are appointed or engaged for skilled, supervisory and technical works. The documents produced by the respondent No. 4 would clearly indicate that the respondent No. 4 is a technical teacher of mechanical engineering and has to supervise technical work of final year engineering students, who submit project work. The project work is highly skilled. Besides he is duty bound to supervise chemical work in laboratories and supervise material testing.

(d) From the documents produced before the Controlling Authority by the respondent No. 4, the following facts are emerged:

(i) The respondent No. 4 is a Bachelor, Masters and Doctorate Degree holder in Mechanical Engineering.

(ii) He is a Mechanical Engineer being a skilled employee, who has been entrusted with the technical work.

(iii) Engineering education is called technical education. As per letter dated 14.5.1969 of the Education Officer (Technical) Government of India and letter dated 7.8.1969 of I.I.T., Kharagpur, the respondent No. 4 is a Trained Technical Teacher.

(iv) The letters dated 25.1.1977 and 15.9.1976 from the Head of the Mechanical Engineering Department as well as letter dated 11.6.1979 of Professor of Training and Placement of the Appellate Institute would show the nature of duties performed by the respondent No. 4 and other teachers of the Mechanical Engineering Department. It is clearly stated in these letters that respondent No. 4 was an Investigator and Professor-in-charge in a testing team in the Material Testing Laboratory. The material testing is a skilled and technical job. The students of various semester of Mechanical Engineering are required to conduct testing of various engineering materials in the strength of materials laboratory for finding the engineering properties of the materials for use in design and construction of Machines, Buildings, Bridges, etc. Further, these testings are done under the supervision of a teacher.

(e) On the basis of these materials, it was found on facts by the Controlling Authority which was confirmed by the Appellate Authority as well as by the learned single Judge that the respondent No. 4 was a skilled Technical Supervisory employee in the appellant institute.

(f) The appellant institute is a Technical/Engineering Institute in which activities of imparting knowledge of training are carried on systematically. The Engineers are basically skillful designers. The objective of course of engineering design is to help the students develop skills in applying what they had learnt in their science. The object is not to teach new engineering science but to help the students learn how to use purposefully and effectively what they already know. Thus the design is not limited to its traditional area of machine design, but includes heat transfer, fluid mechanics, electronics and other areas as well.

(g) The letters of the Head of the Department of Mechanical Engineering show that the respondent No. 4 had been teaching and coordinating in machine design, engineering design etc. and as such he has been developing skill and knowledge in the students. The entire work of a technical teacher relates to machines, materials and construction etc. and hence all these works are technical.

(h) It is true that all categories of employees working in technical educational institutions will not be covered under the provisions of Payment of Gratuity Act, but definitely those employees working in technical educational institutions who are doing skilled or technical work as is the case of respondent No. 4 will be covered.

(i) As pointed out by the learned Counsel for the respondent No. 4, the Controlling Authority who decided the issue, considered the oral and documentary evidence produced by the parties and has come to the finding of fact on the basis of the evidence adduced by the respondent No. 4 during the course of cross-examination to the effect that the respondent No. 4 was posted as Assistant Professor (Mechanical) and used to teach course in technical subjects to all as a Technical person and skilled worker. On the other hand, no witness was produced on behalf of the appellant to establish that he was not entrusted with the technical work nor he was a skilled worker,

(j) It is the specific finding given by the Controlling Authority that the work of a technical teacher like the respondent No. 4 is to perform most of his work as supervisor while the technicians are working on machines and when they work then the technique and full skill is required.

(k) As indicated above, the finding of facts on this point that the respondent No. 4 is an employee within the meaning of Section 2(e) of the Act has been confirmed under the order of the Appellate Authority. The following is the relevant observation made by the Appellate Authority:

With regard to Point No. 2 it is stated that if any persons comes under the definition of 'employee' under Section 2(e) of the Payment of Gratuity Act, 1972 or not, it is a mixed question of facts and law. Respondent is not teacher of any normal school, but is Technical Teacher in an Engineering College meaning thereby he is a Technical Teacher of a Technical Institute. The nature of work of any Engineer cannot be stated as unskilled. From the letter of recommendations sent by the Institution of the appellants to the Secretary, Union Public Service Commission, it becomes evident that the respondent used to perform supervisory and administrative work also along with the teaching, meaning thereby respondent has performed skilled, technical, supervisory and administrative work, therefore, he comes under the definition of 'employee' under Section 2(e) of the Payment of Gratuity Act, 1972.(l) It is also clear from the order of Appellate Authority that the institution of the appellant, i.e., B.I.T. Mesra has remained affiliated with Ranchi University since its establishment in 1955. The benefit of gratuity has been provided to the teachers of Ranchi University. In the year 1986, B.I.T. Mesra, Ranchi has been provided the status of Deemed University. From the advertisement No. F.R./01/2003 of B.I.T. & Science, Pilani (Rajasthan) produced by the respondent No. 4 it becomes evident that the teachers of B.I.T. & Science, Pilani (Rajasthan) also are paid the gratuity. In such situation, as correctly held by the Appellate Authority, teachers of B.I.T., Mesra (Jharkhand) cannot be deprived of the gratuity.

(m) In view of the concurrent finding of fact in respect of 1st point that the petitioner is a technical teacher, doing skilled and technical work as defined under Section 2(e) of the Act, which has been confirmed by the learned single Judge, this Court sitting in appeal will not interfere in the said finding.

14. Let us now come to the second point, i. e., with regard to question as to whether respondent No. 4 is covered under the notification dated 3.4.1997 issued by the Central Government, especially when he has not completed 5 years of continuous service.

(a) This point also has been considered by both the Controlling Authority and the Appellate Authority as well as the learned single Judge in detail.

(b) It is contended by the learned Counsel for the appellant that the provisions of the Payment of Gratuity Act has been extended to educational institutions by notification dated 3.4.1997 and it is only applicable to non-teaching staff of institute and this will not definitely cover respondent No. 4, who has not completed 5 years of continuous service.

(c) This contention, as correctly pointed out by the learned single Judge, has no force. It is true that the Payment of Gratuity Act. 1972 has been implemented in the institute of the appellant through the notification of the Government of India dated 3.4.1997 having formulated a separate Act for the educational institutions, the Government of India has implemented it with effect from 3.4.1997. It means such workman of the educational institution who has superannuated before 3.4.1997 are not entitled to gratuity, but the workman superannuated on or after 3.4.1997 shall be entitled to gratuity. The reckoning of the service period for the purpose of eligibility of gratuity is made under Section 4 of the Payment of Gratuity Act, 1972, which contains the provisions of reckoning the total service of the workman. Admittedly, the total service of the respondent No. 4 is 30 years and on that reason, both the Controlling Authority as well as the Appellate Authority has correctly rejected the contention.

(d) While dealing with this point, the learned single Judge would reject the said contention on the basis of the observations made by the Supreme Court in : AIR1996SC580 . In the said judgment, the Supreme Court considered the commencement of the period for continuous service and observed as under:

The starting point of the said period is from the date an employee gets employment, which in the nature of things would vary from employee to employee. It is nowhere envisaged in the scheme from the above provisions that the continuous service of the employee would be computed in a chain, from calendar year to calendar year. Completed year of service would plainly mean continuous service for one year reckonable from the date of joining employment.(e) As indicated above, the Act became applicable to the employees of educational institution with effect from 3.4.1997. At that time, petitioner was in service and he retired only in 2001. As such, his entire period of service has to be reckoned for the purpose of payment of gratuity.

(f) Therefore, the second ground also has to fail.

15. The next question is as to whether the judgment reported in : (2004)ILLJ596SC is applicable in the present facts and circumstances of the case.

(a) This point has been dealt with by the learned single Judge in detail. It is true as pointed out by the learned Counsel for the appellant that Apex Court in : (2004)ILLJ596SC held that a teacher employed in a School is not an employee within the meaning of Section 2(e) of the Act. Let us refer to the relevant observations made by the Supreme Court:

24. The contention advanced that teachers should be treated as included in the expression 'unskilled' or 'skilled' cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a 'skilled employee'. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words 'semi-skilled' and 'unskilled' are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether 'skilled', 'semi-skilled' and 'unskilled' qualify the words 'manual', 'supervisory', 'technical' or 'clerical' or the above words qualify the word 'work'. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are not 'skilled', 'semi-skilled', 'unskilled', 'manual', 'supervisory', 'technical' or 'clerical' employees. They are also not employed in 'managerial' or 'administrative' capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in 'managerial' or 'administrative' capacity. The teachers are clearly not intended to be covered by the definition of 'employee'.

(b) The reading of the entire judgment including the said paragraph would clearly show that the judgment was rendered in the case of primary school teachers and it cannot be expected that they should be possessed of expert knowledge. In that context, the Apex Court held that the teachers in the primary school do not fall within the definition of employee under the Act.

(c) The Supreme Court was not considering the case of an employee who was doing technical work which has been clearly specified in Section 2(e) of the Act to bring an employee within the ambit of Section 2(e) of the Act. As indicated in the above paragraphs, the duties entrusted to the skilled and technical person like respondent No. 4 is entirely different from the teacher working in the primary school.

(d) Similarly, the learned single Judge has also given the reason as to why this point has to be rejected in the following observation.

16. Based upon above observations, it is contended that teachers have not been held to be 'employee' within the meaning of Section 2(e) of the Act and thus benefit of gratuity is not available to respondent No. 4. It is relevant to notice that the judgment was rendered in the case of Primary School Teachers and they cannot be said to be possessed of any expert knowledge of teaching or any technical or any skilled knowledge. It is under these circumstances, Apex Court held that the teachers do not fall within the definition of 'employee' under the Act. Though respondent No. 4 is a teacher in the petitioner-Institution but he is possessed of a degree in Mechanical Engineering and in course of his employment he not only teaches the students but also performs other functions like imparting technical knowledge even based on material testing in a laboratory. By and large, the nature of job of the petitioner as a teacher in engineering faculty cannot be considered to be teaching job simplicitor. Such a job, though academic, is also technical in nature. In my humble opinion, above judgment will not apply in the present case.'

(e) This observation by the learned single Judge to reject this point, in our view, is perfectly justified.

17. Hence, all these three points have been considered by both the Controlling Authority and the Appellate Authority in the proper perspective and the findings of fact have been rendered rejecting the contention on the basis of the materials produced by the respondent No. 4. Learned single Judge also considered these points and rejected ail these points on the basis of the various judgments rendered by the Supreme Court. As indicated above, the learned single Judge held that : (2004)ILLJ596SC would not apply to the case of the respondent No. 4 in the light of the fact that the said case was decided relating to ordinary primary school teacher whose details of duties were discussed in the said judgment and those duties are entirely different from the duties enjoined upon the skilled employees and technical persons like that of respondent No. 4.

18. The other judgments cited by both the learned Counsel need not be dealt with as those judgments do not relate to the present question raised in this case.

19. In view of the discussions made in above paragraphs, we find no merits in this appeal. Hence, it is dismissed.

D.G.R. Patnaik, J.

20. I agree.