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Judgment
The short, though meaningful, question which arises in this writ petition, is, whether the payment of Gratuity Act 1972, is applicable to the
petitioner's institution ?
The question being of law, the facts pale into insignificance. Suffice it to note, that respondent No. 2 was serving in the petitioner's institution
known as Sanatan Dharam Kanya Vidhyala, Jullaka Mohalla, Jammu, as a peon. She served in that capacity for about 40 to 45 years and
superannuated on 931970. She approached the School i. e, the petitioner herein, for payment of gratuity to her, but to no avail. Sec. then filed and
application on 2541979 before the Controlling Authority under the payment of Gratuity Act. 1972, praying for grant of gratuity in her favour. The
Controlling Authority vide its award dated 24 111979, held respondent No. 2 entitled to 20 months salary at the rate last drawn by her as gratuity
and accordingly awarded as sum of Rs. 4020/ to her on account of gratuity. The petitioner has challenged that award by means of this writ petition.
Neither the fact that respondent No. 2 had served the petitioner's institution for a period of 40 to 44 years, nor the amount of her salary has been
disputed in the writ petition. The case of the petitioner, however, on the other hand, is that the petitioner's School being a recognised institution and
being aided by Government of Jammu and Kashmir, under the GrantsinAid Rules could not treated as a private institution and therefore, the same
did not fall within the definition of 'shop or establishment' under Section 1 (b) of the payment of Gratuity Act, 1972, and that SRO 740 of 1978 did
not bring, the petitioner School within the ambit of the Payment of Gratuity Act, 1972.
Mr. L.K. Sharma, learned counsel for the petitioner, has submitted that the petitioner's school is covered under the private Educational
Institutions (Regulation and Control Act, 1967, which defines a private educational institution. He drew a distinction between private educational
institution which were recognised by the Government and other educational Institutions which were not so recognised. He referred to sec. 2 (e)
and Sec. 2 (f) of the 1967 Act in this behalf and urged that since the petitioner's schools is a recognised institution it ceased to be a private
educational institution, and therefore SRO 740 was not applicable to the petitioner's school.
Mr. Subhash Chander, learned counsel for respondent No. 2 has. on the other hand, submitted that reference to the definitions in Sec. 2 (e) &
(f) of 1967 Act, was irrelevant, It was urged that it is not permissible in law for the definition of an expression given in one Act to be imported to
the provisions of another Act while deciding a case under that Act. Submitted the learned counsel, that in SRO 740 the use of the expression
private educational Institutions' has been used in its popular sense that is that private institutions are institutions other than ... Government institutions
and therefore the Payment of gratuity was rightly awarded.
5 With a view to appreciate the controversy raised in this case and to decide the question posed in the opening para of this case, it would be
relevant to notice some of the provisions of the of the Payment of Gratuity Act. the J&K Shops and Establishments Act 1966, the Private
Educational Institution (Regulation and Control) Act, 1967 and SRO740 of 1978, Section (1) (8) of the Payment of Gratuity Act, 1972 reads as
follows :
""(3) It shall apply to :
(a) every factory, mine, oilfield, plantation port and railway company ;
(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which
ten or more persons are employed, or any day of the preceding twelve months ;
(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the
preceding twelve months, as the Central Government may, by notification, specify in this behalf
Section 4(1) of the J&K Shops and Establishments Act, 1966 confers powers on the Government of Jammu and Kashmir to declare
establishments from time to time to which the provisions of the Shops and Establishments Act extends. Under powers conferred by subsec. (1) of
Sec. 4 of the Jammu and Kashmir Shops and Establishments Act, 1966, the Government of Jammu and Kashmir issued SRO No. 740 on 30th of
November, 1978. The said SRO reads thus :
SRO 740: In exercise of the powers conferred by subsection (1) of Section 4 of the Jammu and Kashmir Shops and Establishments Act, 1966
(XXXIX of 1966) the Government hereby declare the following establishments to which the provisions of the said Act excepting Sections 9 and
13 thereof shall apply with immediate effect.
i. Private Dispensaries ;
ii. Private Hospitals :
iii. Private Nursing Homes ;
iv. Office of Chartered Accounts ;
v. Private Educational Institutions ;
By order of the Government of Jammu and Kashmir.
Sd/ Brij Mohan Dy. Secretary to Government
Section 2(e) and (f), as appearing in Private Educational Institutions (Regulation and Control) Act, 1967 read as follows:
(e) ""Private educational institution"" means an educational institution set up and run with the object of preparing its students for any certificate or
degree but does not include any such institution which is a recognised institution ;
(f) ""recognised institution"" means an institution which is recognised by a Government or a University or affiliated to, or admitted to the privileges of
a University ;
A bare reference to Sec. 1 (3) (b) of the payment of Gratuity Act, 1972, reveals that the Gratuity Act applies to ""every shop or establishment
within the meaning of any law for the time being in ""force in relation to shops and establishments in the State.........""It is, therefore, obvious that the
Gratuity Act would apply to the petitioner school if it falls within the definition of ""shop or establishment'' under the J&K Shops and Establishments
Act, 1966. Vide SRO740 (Supra) among others, private Educational Institutions were declared as the establishments under the J&K Shops and
Establishments Act, 1966. According to Mr. Sharma even though private Educational Institutional stand covered by SRO740, the school of the
petitioner does not fall in the category of a 'Private Educational Institution,' on the ground that the petitioner school is recognised by the
Government of J&K and under the Private Educational Institutions (Regulations and Control) Act, 1967, such educational institutions as are
recognised institutions are not categorized as 'private educational institutions ' In other words Mr. Sharma seeks to import the definition of a
'private educational institution' from Private educational institution (Regulations and Control) Act, 1967 into SRO 740 and thereby to oust the
application of Payment of Gratuity Act, 1972 to the school of the petitioner.
Indeed, the expression ""private educational Institute' has not been defined under the J&K Shops and Establishment Act. However, the use of
the expression ""Private Educational Institution in SRO740 has been made in common parlance Private Educational Institutions, as used in
SRO740, when read in connection with the other establishments brought under the purview of Shops and Establishments Act, shops that the
Government has used that expression in contra distinction to the Govt. educational institutions. The question whether or not a private educational
institution is recognised by the Government is irrelevant in so far as SRO740 is concerned and incidentally also in so far as the payment of Gratuity
Act of 1972, is concerned. The payment of Gratuity Act, 1972 is a f beneficial Legislation and the Government by issuing SRO740 desired the
benefits of the Payment of Gratuity Act to be available to the employees of private educational institutions, apart from certain other employees also.
The courts, therefore, would be loathe to deny the benefits to the employees of Private Educational Institutions by drawing a distinction between
recognised and unrecognised private educational institutions. It is settled law and well known principle of interpretation that an expression not
defined in the Act, but where it is an expression of every day use must be construed in popular sense, as understood in common parlance and not
in any technical sense. In popular sense the expression 'private educational institution' means such educational institution which is not a Govt.
Educational Institution. To give the expression 'private educational institution' a technical meaning, as suggested by Mr. Sharma, would result in
defeating the very object of SRO740 and the denial of extension of benefits of the payment of Gratuity Act to such employees who are the
employees of private educational institutions.
In my opinion, reference to the definition of ""private educational institution' in Sec. 2 (e) and 2 (f) of the Private Educational Institutions
Regulations and Control) Act, 1967, to SRO740 issued under the J&K Shops and Establishments Act is not justified. The definition in the Act of
1967 of ""Private Educational Institutions"" has been given under that Act for the purpose of receiving aid and grants from the Government and that
definition is not of universal application to determine the character of a private educational institution. It is not permissible to import that definition
into SRO 740 and to deny the benefits of the payment of the Gratuity Act to the employees of private educational institutions and others. In Union
of India and others V. R. C. Jain and ors, AIR 1981 SC 951, Chinnappa Reddy J, speaking for the court deprecated the importing of definition of
one Act to interpret another Act. In that case, the expressions involved were 'local authority' and 'local fund'. His Lordship opined as under :
Local Fund is again not defined in the General Clauses Act. Though the expression appears to have received treatment in the Fundamental Rules
and the Treasury Code, we refrain from borrowing the meaning attributed to the expression in those rules as it is not a sound rule of interpretation
to seek the meaning of words in an Act, in the definition clause of other statutes. The definition of an expression in one Act must not be imported
into another. ""It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because
in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone"" (per Loreburn L. C. in
Macbeth & Co. v. Chislett, 1910 AC 220). For the same reason we refrain from borrowing upon the definition of 'local authority' in the
enactments such as the Cattle Trespass Act, 1871 etc. as the High Court has done.
In view of this settled position of law, it is obvious that the definition of the ""private educational institution' as contained in Private Educational
Institutions (Regulation and Control) Act, 1967 cannot be imported into SRO740 or to the J&K Shops and Establishments Act. That being the
position, it is obvious that by virtue of SRO740 of 1978 all Private Educational Institutions in the State have been declared as establishments under
the J&K Shops and Establishment Act of 1966 and in view of the provisions of Sec. 1 (3) (b) of the Payment of Gratuity Act, 1972. the
employees of 'Private Educational Institutions' are entitled to the receipt of gratuity under the said Act, when the conditions for the applicability as
enumerated in the Act are satisfied.
The learned prescribed authority after a careful consideration, awarded the gratuity to the extent of 20 months salary @ last drawn by
respondent No. 2 and held her entitled to receive Rs. 4020/ from the petitioner school. For what I have said above, the award made by the
prescribed authority on 24111979 in this behalf is unexceptionable and I find no fault with the same.
In the result, this writ petition is dismissed. However, keeping in view the debatable points of law, I leave the parties to bear their own costs.
The stay granted by this court on 1031980 is vacated.