S. No. 05 Regular IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP 1195/2017 MOHAMMADIA ENGLISH MEDIUM SCHOOL KANGAN …Petitioner(s)/Appellant(s) Through: Ms. Rasheeda Shaheen, Advocate Vs MOHAMMAD ABDULLAH AZAD AND ORS ...Respondent(s) Through: Respondent No. 01 present in person CORAM: HON’BLE MR JUSTICE RAHUL BHARTI, JUDGE ORDER 12.02.2025 1. Heard. 2. The petitioner, Mohammadia English Medium School, Kangan Ganderbal, acting through it’s the then Chairman namely Farooq Ahmed Rather, came forward with institution of the present writ petition under article 226 of the Constitution of India for the sake of assailing an order dated 31-12-2015, passed by the respondent No. 2, Controlling Authority, Payment of Gratuity, (Assistant Labour Commissioner), District Ganderbal read with an order dated 26-08-2017 passed by respondent No. 3, i.e., Deputy Commissioner, Appellate Authority, Payment of Gratuity. 3. The respondent No. 1- Mohammad Abdullah Azad, who is present in person, is said to have served the petitioner institution as a teacher from April 1985 till August 2014 when he came to suffer disengagement from the employment, which was said to be without any cause or justification. As the respondent No. 1 reckoned himself entitled to gratuity on account of length of his service rendered in favour of the petitioner institution and, thus, came to approach the Controlling Authority, Payment of Gratuity, (Assistant Labour Commissioner), Ganderbal with a petition. 4. The Authority came forward with the findings that respondent No. 1's appointment was of the year 1985, deputed to the petitioner school by Jamiat Ahlihadith, Jammu & Kashmir, and served the petitioner's institution for a long period of 29 years, working on the monthly wages of Rs. 5240/-, as verified from the record of the establishment of petitioner. 5. By applying the formula as prescribed under the Payment of Gratuity Act, 1972, the gratuity earned by respondent No. 1 was calculated to be Rs. 99761/-, which was held payable in favour of the respondent No. 1 with interest at the rate of 9% per annum amounting to Rs. 11971/-, and thus, total payment of an amount of Rs. 111732/- was held to be payable from the petitioner’s end to the respondent No. 1 in terms of an award dated 31-12-2015 so passed by Controlling Authority, Payment of Gratuity, (Assistant Labour Commissioner) Ganderbal. 6. The appeal preferred by the petitioner before the Appellate Authority of Deputy Labour Commissioner, Kashmir also resulted in dismissal in limine in terms of an order dated 28- 06-2017. 7. The appellate authority came forward with an examination that the petitioner as an appellant cannot be heard to agitate that it was not the employer of the respondent No. 1, as said aspect has been thoroughly examined by the Authority, Payment of Gratuity (Assistant Labour Commissioner) Ganderbal, and thus, the right of the respondent No. 1 to earn the gratuity was beyond any denial and dispute, that too, at the instance of the petitioner. 8. These two adjudications by the Authorities under the Payment of Gratuity Act, 1971 are now being assailed through the medium of the present writ petition on the ground as set out in para 10 of the writ petition that there was no relationship of employer and employee between the petitioner and the respondent No. 1 as the respondent No. 1 had voluntarily absented himself from the duties of the petitioner after complaints of misconduct and sexual harassment towards female staff and students which disqualified the respondent No. 1 from being an earner of gratuity from the petitioner. 9. It is further pleaded that the respondent No. 1 was actually an employee of Jamiat Ahlihadith, Jammu & Kashmir, which was not implemented as a party in the matter. As such, the petitioner was to be absolved from the liability. 10. In the entire writ petition, there is no denial found that the respondent No. 1 was in service of the petitioner from 1985 till his relinquishment of the job in the month of March 2012 before getting transferred to Mohammadia Middle School, Parraypora, Srinagar. 11. Thus, for the service so rendered by the respondent No. 1 in the employment of the petitioner, notwithstanding, the mode through which the respondent No. 1 came to be deputed with the petitioner for rendering service as a teacher, the entitlement of the respondent No. 1 to gratuity stood vested in him and the petitioner could not have escaped the said liability. At the best, the petitioner could have reserved its right to recover the amount so ordered to be paid to the respondent No. 1 as a gratuity from Jamiat Ahlihadith, Jammu & Kashmir. In fact, the petitioner has itself not impleaded Jamiat Ahlihadith, Jammu & Kashmir as a party respondent in the writ petition so as to exercise its recovery rights against the said institution of which the respondent No. 1 was said to be the principal employee. 12. In light of this, the writ petition is held to be misconceived and hence dismissed. (RAHUL BHARTI) JUDGE SRINAGAR 12.02.2025 AAMIR Amir Rashid Sofi I attest to the accuracy and authenticity of this document 15.02.2025 10:50