Shail Beharwal vs State Of Uttarakhand & Others

Manoj K. Tiwari, J

Petitioners in these writ petitions served as Teacher in different privately managed Government Aided Degree/Post Graduate Colleges and retired from service before the year 2005. However, WPSS No. 2879 of 2017 has been filed by D.A.V. (P.G.) College, Dehradun through its Principal challenging the order dated 30.08.2017 in Case No. P.G.A.-31 of 2012, 'Satya Narayan Sachan vs. State & oanother'. In all these petitions orders passed by Controlling Authority under Payment of Gratuity Act, 1972 (hereinafter referred to as the "Act") have been challenged, whereby liability to pay gratuity and interest to the Teachers has been fastened upon the concerned Institutions.

Since common questions of fact and law are involved in these petitions, therefore, all these petitions are clubbed together and are being heard & decided by a common judgment. However, for the sake of clarity, facts of WPSS No. 3415 of 2018 are being considered.

Ms. Shail Beharwal (petitioner in WPSS No. 3415 of 2018) was appointed as Teacher in D.W.T. College, Dehradun w.e.f. 15.08.1967 and after completing age of superannuation, she retired on 30.06.2002. She filed an application under Section 7 of Payment of Gratuity Act, 1972, claiming gratuity on the strength of Amendment Act No. 47 of 2009, whereby definition of expression "employee" under Section 2(e) of the Act was amended.

In her application, petitioner asserted that Government of Uttrakhand along with D.W.T. College is liable to pay gratuity to her. State of Uttarakhand through Secretary, Finance Department was impleaded as respondent No. 1 in the said application, who in his written statement submitted that the State Government is not liable to pay gratuity to the petitioner. It was further stated that since petitioner had retired on 30.06.2002, therefore, the benefit of Government Order dated 18.06.2005 cannot be extended to such Teachers, who have already retired. It was further submitted by Secretary, Finance Department that he has only advisory role in Financial matters of the State Government, therefore, he has been unnecessarily made a party to the application and Higher Education Department of the State Government should have been made a party in the application.

Learned Controlling Authority by a cryptic order dated 15.09.2017 allowed the application filed by the petitioner and directed D.W.T. College, Dehradun to pay `3,50,000/- with interest @ 6.25% per annum to the petitioner within 30 days.

Petitioner has approached this Court for modification of the order passed by the Controlling Authority to the extent that liability to pay gratuity may be fastened upon Government of Uttarakhand in place of D.W.T. College, Dehradun.

Heard learned counsel for the parties and perused the record.

Earlier Teachers of privately managed Government Aided Colleges were not entitled to gratuity and Contributory Provident Fund Scheme was applicable to them. Subsequently, vide Government Order dated 30.03.1983, it was provided that subject to fulfillment of certain conditions, such Teachers who opt for retirement age of 58 years, would be entitled to benefit of death-cum-retirement gratuity at par with Government employees.

After State Reorganisation, Government of Uttarakhand issued Government Order dated 18.06.2005, whereby it was provided that all Teachers, irrespective of their option regarding age of retirement, would be entitled to same retiral benefits. However, in para 3 of the said Government Order, it was further provided that benefit of gratuity would be admissible only to such Teachers who deposit employer/State Government's contribution, along with their own contribution, in the Contributory Provident Fund account with interest in Government Treasury, within 90 days from 18.06.2005.

Petitioner has relied upon the Government Order dated 18.06.2005 in support of her claim for gratuity. However, it is not known whether she fulfilled the condition mentioned in para 3 of the Government Order, which is a precondition for grant of gratuity.

Learned Controlling Authority has allowed the application for gratuity made by petitioner and directed the concerned Institution to pay gratuity with interest to her. However, there is no discussion regarding the Government Orders issued on the subject from time to time. There is no discussion as to whether Teachers of privately managed Government Aided Degree/Post Graduate Colleges fall within the definition of "employee" as given in Section 2(e) of the Payment of Gratuity Act, 1972. The definition of "employee", as amended by Act No. 47 of 2009 is extracted below:

"2(e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, 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 any rules providing for payment of gratuity."

Liability to pay gratuity has been fastened on the Institution concerned merely because the Institution was not represented before Controlling Authority on the date of hearing. The import of Section 5 of Payment of Gratuity Act, 1972, which enables the appropriate Government to exempt any establishment or any employee or any Class of employee from the operation of the provisions of the Act, has also not been considered by the Controlling Authority.

It is settled position in law that a quasi-judicial authority, while acting in exercise of its statutory powers must record reasons in support of his conclusion. Hon'ble Supreme Court in the case of Kranti Associates Vs Masood Ahmad Khan reported in (2010) 9 SCC 496 has held that recording of reason is a facet of principles of natural justice. Para 47 of the said judgment is extracted below:-

"47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain33 EHRR, at 562 para 29 and Anya v. University of Oxford34, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".

Since the orders passed by Controlling Authority, against which these writ petitions have been filed, are bereft of any reason, therefore, the same are set aside. Accordingly, all the writ petitions are allowed. The matter is remitted back to Controlling Authority to hear and decide the applications filed by the Teachers afresh, in accordance with law. Petitioners shall be at liberty to make application for amendment in their applications and if such applications are made, the Controlling Authority shall consider the same and pass appropriate orders, in accordance with law. If the amendment applications, to be filed by the petitioners, are allowed then the respondents to the application will also be given opportunity to file their additional written statement. It is made clear that the Controlling Authority shall consider and decide the applications filed by the Teachers (petitioners herein) under Section 7 of the Act independently without being influenced by any observation made in this order.

All the pending applications stand disposed of.