Master Ghulam Rasool vs State of J & K

The respondent No.4 worked as a teacher on the establishment of Islamia Middle School Nowshera Srinagar till his superannuation. He

claimed gratuity from the institution, petitioner herein, but instead of releasing the gratuity, the case was referred by the petitioner to the

Government, the government refused to pay the gratuity, therefore the petitioner chose to turn down the claim of respondent No.4. Refusal by the

petitioner constrained the respondent No.4 to invoke the remedy under payment of gratuity Act before the controlling authority constituted under

the said Act and the said authority accepted the application of respondent No.4 by its order dated 2971995 and directed the petitioner to deposit

the decretal amount within fifteen days. This older is impugned before the court through the medium of this writ petition on several grounds and

during the course of arguments learned counsel for the petitioner chose to confine the challenge on two fold grounds, one relates to SRO 740 and

it is canvassed that the petitionerinstitution does not fall within the ambit of SRO 740 and in the alternative it is contended that it is the Government

which is liable to pay the gratuity and not the petitionerinstitution.

Before dilating upon the arguments of the learned counsel for th petitioner it is relevant to note that parties have not joined issue in respect of

factual aspects of the matter and it is admitted case of the parties that the respondent NO.4 has served petitionerinstitution in the capacity of a

teacher till the superannuated. The petitioner institution by accepted in unambiguous terms that it receives grantinaid from the Government.

Now coming to the contention of learned counsel for the petitioner that petitionerinstitution does not fail within the ambit of SRO 740 of 1978.

In this behalf it is relevant to mention that a similar argument was advanced before the court in writ petition titled Principal S.D.Dnya Vidhayalla

Jullaka Mohalla Jammu Versus Authority under the payment of Gratuity Act and another, this argument was dealt with by the court in detail and

finding came to be returned that SRO 740 is applicable to all such private educational institutions which satisfy the conditions prescribed by the

Act. It needs a mention that fulfillment of conditions by the petitionerinstitution envisaged under the gratuity Act is not dispute. Viewed thus the

judgment supra squarely applies to the case in hand, obviously the argument is not tenable.

The second argument of the learned counsel for the petitioner is that in case court comes to a conclusion that gratuity is payable to the

respondent No.4, in such eventuality it is prayed that liability be fixed on the State of Jammu and Kashmir. To appreciate this controversy and to

adjudicate upon the issue it becomes necessary to notice that rule 23 of the J and K Private educational institution grantinaid rules 1975 has

directed bearing on the issue which is reproduce hereunder:

Reimbursement of expenditure on account of gratuity: When the Managing Committee of an Institution has prescribed separate rules duly

approved by the Administrative Department for retirement benefits viz: payment of gratuity, the State Govt. would reimbrues the actual expenditure

on this account to the institution subject to the condition that it shall not be related to the annual grant of the institution but paid only at the time of

retirement of an employee provided the institution has enforced the scheme. This will further be subject to the condition that gratuity would be

payable only if C.P.F. is not payable,

No doubt, the rule 23 casts an obligation on the respondent No.1 to reimburse the expenditure on account of gratuity made by the institution, of

course, subject to the conditions stipulated therein but it is available to the petitioner institution to deny the disbursement of gratuity to the

respondent No.4 on the ground that respondent No. 1 has not concedes to pay it. This is a pivotal question which calls for an answer and is to be

answered in the light of mandate of rule 23.

A bare perusal of rule 53 envisages reimbursement of an amount incurred on payment of gratuity and reimbursement that the amount has been

expended which means that the petitioner institution can advance a claim for reimbursement only after the amount has been disburse to respondent

No.4 and the rule does not entitle the petitionerinstitution to obtain the amount prior to disbursement. Yet another question arise to as whether it is

available to the educational institution to deny the gratuity to an employee when the Government declines to pay the same. Here it is relevant to

mention that the grantinaid rules create obligations as also rights in the private institutions and the enforcement of obligations cast on the

Government if not discharge, a remedy can be invoked by the educational institution for enforcement of the obligations but non performance of

such obligations by the Government cannot disentitle an employee of a private educational institution to she benefits to which he is entitled which in

other words means that under the circumstances of the case in hand the private educational institution is bound to pay the amount of gratuity to the

petitioner notwithstanding the refusal of the Government However, it is clarified that this finding shall not debar the petitioner from seeking a

remedy for reimbursement of amount of gratuity if available and advised.

For what I have slated above I find no fault with the award dated 29/7/1995. In the result the writ petition is dismissed .

No order as to costs.