1 2025:CGHC:16376 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 9 of 2021 1. Lahidi Multipurpose Higher Secondary School Chirimiri, District Koriya Chhattisgarh, Pin 497 451 Through Its President , Kartik Das S/o Late Shri Sitaram , Aged About 49 Years., District : Koriya (Baikunthpur), Chhattisgarh 2. Secretary Lahidi Multipurpose Higher Secondary School, Chirimiri, District Koriya Chhattisgarh. 497 451., District : Koriya (Baikunthpur), Chhattisgarh 3. Principal Lahidi Multipurpose Higher Secondary School, Chirimiri, District Koriya Chhattisgarh. Pin 497 451., District : Koriya (Baikunthpur), Chhattisgarh ... Petitioner(s) versus 1. State Of Chhattisgarh Through Secretary, Department Of School Education, Mantralaya, Mahanadi Bhawan, Nava Raipur , District Raipur Chhattisgarh Pin Code 492 002., District : Raipur, Chhattisgarh 2. District Education Officer Deo Office, Orgi Naaka, Baikunthpur , District Koriya Chhattisgarh Pin Code 497 335., District : Koriya (Baikunthpur), Chhattisgarh 3. Controlling Authority Under The Payment Of Gratuity Act, 1972, Baikunthpur , District Koriya Chhattisgarh Pin Code 497 335., District : Koriya (Baikunthpur), Chhattisgarh 4. Ramesh Chandra Jain S/o Late Shri J.L. Jain Aged About 75 Years R/o Main Road, Haldibadi, Post Chirimiri, District Koriya Chhattisgarh, Present Address C/o Manish Jain Bhagya Shree Transport Co. 9, Sr Compound , Dewas Naaka, Indore, District Indore Madhya Pradesh Pin Code 452 001., District : Indore, Madhya Pradesh ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioners : Mr. Amrito Das, Advocate holding the brief of Mr. K. Rohan, Advocate For State : Mr. Lav Sharma, Panel Lawyer SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.04.09 14:15:10 +0530 2 Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08. 04.2025 1. Office objection is ignored. 2. The petitioners have filed this petition challenging the circular dated 07.06.2013 and orders passed by the controlling authority under the Payment of Gratuity Act, 1972, whereby the petitioners have been directed to make payment of gratuity to its employees, who got retired prior to 31.03.2013. 3. Mr. Amrito Das, learned counsel appearing for the petitioners would submit that respondent No. 4 and other employees got retired from services prior to 31.03.2013 and the circular was issued by the State Government afterwards, therefore, the petitioners are not liable to make payment of gratuity to the private respondents and other similarly situated employees. He would further submit that the circular cannot be given retrospective effect. He would also submit that the controlling authority without taking into consideration the above aspect of the matter passed the order against the society. He would pray to quash the circular and orders passed by the controlling authority. 4. On the other hand, learned counsel appearing for the State would submit that the issue involved in the present case is no longer res integra. The Hon’ble Division Bench in the matter of State of Chhattisgarh vs. The President, Managing Committee, Lahari Multipurpose Higher Secondary School passed in WA No. 194 of 2021 and other connected matters has already decided this issue. 5. I have heard learned counsel appearing for the parties and perused the documents placed on the record. 3 6. The Hon’ble Division Bench in the matter of The President, Managing Committee, Lahari Multipurpose Higher Secondary School (supra) has categorically held that the State of Chhattisgarh, by Memo dated 7.6.2013, as a matter of policy, took a decision and volunteered to pay grant which will be utilized for the purpose of gratuity to the employees/teachers who have retired after 1.4.2013, meaning thereby the gratuity for the period from 3.4.1997 to 31.3.2013 will be payable by the private unaided educational institutions from their own funds. The relevant paras 42 & 43 read as under:- “42. As already noticed, in consonance with the judgments of the Supreme Court in Ahmedabad Pvt. Primary Teachers’ Association (supra), the Amendment Act of 2009 brought with retrospective effect from 3.4.1997 and the definition of ‘employee’ was amended to cover up the teachers also. The teachers retired on or after 3.4.1997 as such became entitled for payment of gratuity in accordance with Section 7 of the Act of 1972, which led to filing of the application against the private educational institutions before the controlling authority under the Act of 1972 who on such application ordered for payment of gratuity to the employees, which was affirmed by the appellate authority in the appeal under Section 7 of the said Act and thereafter the Finance Department, Government of Chhattisgarh has taken a considered policy decision to make payment of gratuity in shape of grant to the employees who have superannuated after 1.4.2013. Thus, the State of Chhattisgarh, by Memo dated 7.6.2013, as a matter of policy, took a decision and volunteered to pay grant which will be utilized for the purpose of gratuity to the employees/teachers who have retired after 1.4.2013, meaning thereby the gratuity for the period from 3.4.1997 to 31.3.2013 will be payable by the private unaided educational institutions from their own funds. 43. As noticed herein above, the amended definition of Section 2(e) of the Act of 1972 read with Section 13A of the Amendment Act of 2009 was sought to be challenged by the private educational institutions unsuccessfully before the High Courts and thereafter before the Supreme Court in the matter of Independent Schools’ Federation of India (Regd.) (supra) wherein their Lordships of the Supreme 4 Court considered the issue and dismissed the challenge so made and held that the Amendment Act of 2009 amending the definition of Section 2(e) of the Act of 1972 is a valid piece of legislation and its application with retrospective date, that is, w.e.f. 3.4.1997, was also not accepted by their Lordships as unconstitutional. It was held by their Lordships that the marginal inconvenience in the form of financial outgo or difficulty is of little weight, when curing of an inadvertent defect is made retrospectively in greater public interest, which consideration will overrule the interest of one or some institutions. Their Lordships found little merit in the challenge also for the reason that the observations made in Ahmedabad Private Primary Teachers’ Association (supra) in paragraph 26 were sufficient to indicate that a legislation should intervene to grant the benefit of gratuity to teachers. It was further held by their Lordships that the contention that the private schools were sure to succeed as to deny the teachers the benefit of the Notification No. S-42013/1/95-SS.(II), dated 3.4.1997, is questionable and far-fetched to be accepted. The law is subject to uncertainty ex-ante when two or more views are possible, but there may be certainty ex-post litigation in view of the law of precedents, which reduces uncertainty. It was further held that a secondary argument on behalf of the private educational institutions that they would be liable to pay gratuity for a period of service prior to 3.4.1997, and, therefore, the amendments are unconscionable and tyrannous, is equally fallacious for several reasons. That the argument of unreasonableness and that the amendment is financially confiscatory, predicated on past liability, which may predate the notification effective from 3.4.1997, apart from the other reasons, is to be rejected as there are upper-cap limits on payment of gratuity. Therefore, though gratuity is computed with reference to the years of service, in view of the upper- cap limit, the payment towards gratuity cannot exceed the specified amount, even if the employee would be entitled to higher amount in view of the years of the service rendered to the employer. Further, highlighting the object of the Amendment Act of 2009, their Lordships held that in the present case, the notification No. S42013/1/95- SS.(II) dated 3.4.1997 had ensured that the benevolent provisions requiring payment of gratuity should be extended to the “employees” of the educational institutions. The amendment with retrospective effect is to make the benevolent provisions equally applicable to teachers. The amendment seeks to bring equality and give fair treatment to the teachers. It can hardly be categorised as an arbitrary 5 and highhanded exercise. Finally, their Lordships held and directed that the private schools to make payment to the employees/teachers along with the interest in accordance with the provisions of the Act of 1972 within a period of six weeks and in case of default, the employees/teachers may move the appropriate forum to enforce payment in accordance with the provisions of the said Act.” 7. Taking into consideration the fact that the Hon’ble Division Bench has already decided the issue involved in the present case. According to the judgment passed by the Hon’ble Division Bench, the society would be liable to make payment of gratuity to its employees including respondent No. 4 for the period from 03.04.1997 to 31.03.2013, therefore, in the opinion of this Court, no case is made out for interference. Accordingly, this petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge $iddhant