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Judgment
S. Radhakrishnan, J.—By this Appeal, the appellant Educational Institution is challenging the order dated 11th September, 2002 passed by the learned Single Judge, wherein, the learned Single Judge had relied upon a judgment of this Court in General Education Academy Vs. Sudha Vasudeo Desai and Others, and concluded that the respondent No. 1 Teacher is an employee and entitled to get gratuity. The respondent No. 1 is a Teacher employed in the appellant-school.
There have been conflicting views "whether a Teacher is an employee" covered by Section 2(e) of the Payment of Gratuity Act, 1972?"
The controversy is whether a Teacher employed in a school "as an employee" is covered by Section 2(e) of the Payment of Gratuity Act, 1972? The said question has been finally settled by the Hon''ble Supreme Court in the case of Ahmedabad (P) Primary Teachers'' Association v. Administrative Officer 2004 (1) CLR 495, wherein, in paragraph 23, the Hon''ble Supreme Court has squarely held that the Teachers are clearly not covered within the definition of "Employee" in Section 2(e) of the Payment of Gratuity Act, 1972. The learned Counsel appearing for the respondents are also concedes that the respondent No. 1 Teacher is not covered as an employee u/s 2(e) of the Payment of Gratuity Act, 1972.
We have perused the order dated 1st April, 2003 passed in Notice of Motion No. 3126 of 2002 in the above Appeal, wherein this Court had directed the appellants to deposit the entire amount of gratuity together with interest within a period of eight weeks from the date of the order and if the amount is deposited, the respondent No. 1 was granted leave to withdraw the same, subject to filing a written undertaking that the respondent will bring back the amount, if so directed by the Court. However, respondent No. 1 has not withdrawn the same.
In the present case, the respondent No. 1 Assistant Teacher has been paid its. 51,076/- inclusive of interest under Gratuity Scheme formulated by the Mumbai Municipal Corporation, as per the Municipal Circular dated 27th September, 2000. The learned Counsel appearing on behalf of the appellants fairly states that the appellants have no grievance with regard to the said amount paid as per the Municipal Corporation Circular. However, the learned Counsel for the appellants states that the appellants have deposited a total sum of Rs. 1,81,557/- along with interest in this Court. The learned Counsel for the appellant further states that in view of the judgment of the Hon''ble Supreme Court in the case of Ahmedabad (P) Primary Teachers'' Association v. Administrative Officer 2004 (1) CLR 495, the appellants be permitted to withdraw the said sum of Rs. 1,81,557/-, which was deposited by the appellants.
In view of the judgment of the Hon''ble Supreme Court in Ahmedabad (P) Primary Teachers'' Association v. Administrative Officer 2004 (1) CLR 495, the judgment of the learned Single Judge dated 11th September, 2002 which is impugned in this Appeal cannot be sustained in law and the same stands set aside, as respondent No. 1 is not "an employee" covered under the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case and in view of the aforesaid judgment of the Hon''ble Supreme Court, the appellants are allowed to withdraw the aforesaid sum of Rs. 1,81,557/- deposited with the Prothonotary and Senior Master of this Court along with interest if any. Appeal is allowed accordingly.