# Smt. Krishna Bembi v. Appellate Authority, U.P. and others

- **Citation:** (2005) 2 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-25
- **Case number:** Civil Misc. Writ Petition No. 34278 of 2004
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-bembi-v-appellate-authority-u-p-and-others-40484
- **Pages:** 9

## Headnote

Payment of Gratuity Act 1972-Section2(e)-work
man-whether
a
teacher
retired from an institution controlled and
run by registered society comes within
the definition of workman? Held- 'No'
even if by order dt. 27.11.70 by wage
Board-gratuity become payable to the
staff of educational institution.

Held: Para 11

Thus in view of law laid down by the
Hon'ble Apex Court, it is clear that the
petitioner who was employee/teacher of
the
institution
run
by
a
society
registered
under
the
Societies
Registration
Act
of
Mawana
Sugar
Works, Mawana, Meerut can not be held
to be covered under the "expression" of
''employee' as given in definition clause
of the Act even if by the order of Wage
Board dated 27th November, 1970 the
gratuity payable to the workmen or
employees of factory has been made
payable to the staff of the educational
institution
also
as
contained
in
Annexure-17 of the writ petition. Thus
being a retired teacher of the institution
the petitioner is not entitled for gratuity
under the provisions of the Act.
Case law discussed:
2004 (100) FLR 601
1988 (9) SCC 42
AIR 1988 SC-1700
1996 (4) SCC-225

## Text

536 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
present case, can hardly be said to be
excessive or exorbitant or prohibitive. No
details have been given by the petitioners
to establish that the levy of transit fee @
Rs.38/- per metric tonne is prohibitive or
confiscatory. Thus, the challenge to it
being arbitrary and discriminatory has no
substance.

51. In view of the foregoing
discussions, we do not find any merit in
these petitions. They are dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.5.2005

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 34278 of 2004

Smt. Krishna Bembi

...Petitioner
Versus
Appellate
Authority
U.P.
under
the
Payment of Gratuity Act, 1972 and
others

 ...Respondents

Counsel for the Petitioner:
Sri Y.S. Bohra

Counsel for the Respondents:
Smt. Sunita Agrawal
S.C.

Payment of Gratuity Act 1972-Section2(e)-work
man-whether
a
teacher
retired from an institution controlled and
run by registered society comes within
the definition of workman? Held- 'No'
even if by order dt. 27.11.70 by wage
Board-gratuity become payable to the
staff of educational institution.

Held: Para 11

Thus in view of law laid down by the
Hon'ble Apex Court, it is clear that the
petitioner who was employee/teacher of
the
institution
run
by
a
society
registered
under
the
Societies
Registration
Act
of
Mawana
Sugar
Works, Mawana, Meerut can not be held
to be covered under the "expression" of
''employee' as given in definition clause
of the Act even if by the order of Wage
Board dated 27th November, 1970 the
gratuity payable to the workmen or
employees of factory has been made
payable to the staff of the educational
institution
also
as
contained
in
Annexure-17 of the writ petition. Thus
being a retired teacher of the institution
the petitioner is not entitled for gratuity
under the provisions of the Act.
Case law discussed:
2004 (100) FLR 601
1988 (9) SCC 42
AIR 1988 SC-1700
1996 (4) SCC-225

(Delivered by Hon'ble Sabhajeet Yadav, J.)

By this petition, the petitioner has
challenged the order dated 15.6.2004
passed by appellate authority under the
Payment of Gratuity Act, 1972(herein
after referred to as Act) whereby the order
dated 6.12.2003 passed by Controlling
Authority in favour of the petitioner under
the aforesaid Act has been set aside.

2. The brief facts of the case are that
while
working
as
officiating
Head
Mistress in Sri Ram Junior High School,
Mawana, District Meerut the petitioner
was retired from service on attaining her
age of superannuation on 1.7.2002.
Initially the petitioner has joined the
service as teachers in Mawana Sugar
Works Primary School run by Mawana
Sugar Works, Mawana, district Meerut on
1.11.1966. Later on in the year 1974
Mawana Sugar Works Primary School
was transferred under the management of
Shri Ram School Society, Mawana.
2 All] Smt. Krishna Bembi V. Appellate Authority, U.P. and others
 537
Consequently a letter dated 29.6.1974 was
sent to the petitioner by the Chairman of
Shri
Ram
School
Society,
Meerut
indicating the terms and conditions of the
service and option was sought regarding
the existing terms and conditions of
services of the petitioner mentioned in the
letter. Later on another letter to the same
effect was also sent to the petitioner on
20.8.1974 whereby the petitioner was
asked to give option as to whether the
petitioner wants to accept the new terms
and conditions of the service or would
continue on the old terms and conditions.
In pursuance thereof on 22.8.1974 the
petitioner wrote a letter to General
Manager, Mawana Sugar Works, Mawana
giving here option that she would like to
remain with Mawana Sugar Works,
Mawana
on
the
same
terms
and
conditions of employment. The petitioner
did not opt for new terms and conditions
of service indicated in the letter referred
earlier.
Thereafter General Manager,
Mawana Sugar Works wrote a letter on
26.9.1974 to the petitioner in pursuance of
her option dated 22.8.1974 indicating
therein that petitioner would continue
under the existing terms and conditions of
the service and there would be no change
in the existing terms and conditions of
service of petitioner. A true copy of letter
dated 26.9.1974 is on record as Annexure5 to the writ petition. On 1.11.1974 the
petitioner wrote a letter to the General
Manager, Mawana Sugar Works, Mawana
mentioning therein that she would remain
on the payroll of factory on the same
terms and conditions of service. A true
copy of the aforesaid letter is on record as
Annexure-6 of the writ petition. On
23.11.1988 the petitioner was promoted
as Head Mistress of Shri Ram Primary
School, Mawana and on 29.8.2001 she
was
appointed
as
officiating
Head
Mistress of Shri Ram Junior High School
without any change in the terms and
conditions
of
employment
of
the
petitioner. True copy of the aforesaid
letters are on record as Annexures-7 and 8
respectively of the writ petition. It is also
stated that the petitioner was being paid
salary from Mawana Sugar Works,
Mawana and the last cheque issued to the
petitioner after retirement was signed by
the official of Mawana Sugar Works,
Mawana from the accounts of the factory.
A Photostat copy of cheque dated
16.7.2002 is on record as Annexure-9 of
the writ petition. The petitioner has
further stated that she was member of
DCM Employees Provident Fund Trust
under Mawana Sugar Works, Mawana in
which the petitioner's provident fund was
deducted from her salary and equal
amount was deposited by Mawana Sugar
Works, Mawana.

3. After retirement of the petitioner
on attaining her age of superannuation the
respondents no. 2 and 3 did not pay any
gratuity to her. In circumstances, the
petitioner has approached the Controlling
Authority under the Act and moved an
application on 22.7.2002 for payment of
gratuity, which was numbered as PGA
Case No. 130 of 2002. A true copy of the
application dated 22.7.2002 is on record
as Annexure-10 of the writ petition. The
employer respondents no.2 and 3 filed
their written statement inter alia alleging
that Shri Ram School Society, Mawana
was running the school and in view of the
Supreme Court decision a "teacher" is not
an "employee" as defined in Section 2(e)
of Act and accordingly a "teacher" is not
entitled for payment of gratuity under the
Act. The written statement filed by the
respondents no. 2 and 3 is on record as
Annexure-11 of the writ petition. The
538 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
petitioner filed her rejoinder affidavit
denying
the
allegations
made
by
respondents no. 2 and 3 in the written
statement and reiterated that she was
covered by the provisions of Act and was
entitled for the Payment of Gratuity under
the Act. In support of her case the
statement of petitioner was also recorded
on 17.2.2003 before the Controlling
Authority. After going through the
material
on
record
the
Controlling
Authority vide order dated 6.12.2003
allowed the application of petitioner and
directed to pay the petitioner Gratuity
amounting Rs.1,71,346.15 with 10%
interest
thereon
since
the
date
of
superannuation of the petitioner till the
payment
is
made
to
her.
Feeling
aggrieved
against
the
order
dated
6.12.2003 the respondents no.2 and 3
filed appeal before the respondent no.1 on
7.1.2004 under Section 7 (7) of the Act,
before
the
appellate
authority
i.e.
Additional Commissioner, Kanpur which
was numbered as PGA Appeal No. 5 of
2004. The petitioner has filed objection
before the appellate authority. Along with
the objection the petitioner filed U.P.
State Sugar Wage Board Order dated
27.11.1970, which was published in the
gazette on 27.11.1970. According to para
1 (iv) of which the educational staff was
covered by the order. According to para 8
all the sugar factories were required to
introduce the scheme of payment of
gratuity to their employees. The appellate
authority has allowed the appeal and set
aside the judgement and order passed by
Controlling Authority vide impugned
judgement and order dated 15.6.2004
hence this writ petition.

4. On behalf of respondents two
detailed counter affidavits have been filed
in the writ petition; one on behalf of
respondent no.2 and another on behalf of
respondent no.3. The replies made in both
the counter affidavits are substantially the
same. Before making parawise reply of
the writ petition in para 2, 5 and 6 of the
counter affidavit certain facts have been
stated which are relevant for the question
in controversy involved in the case as
such the contents of para 2,5 and 6 of the
counter affidavit filed by Sri R.K. Jha on
behalf of respondent no. 3 is reproduced
as under :
"2.a.
That the deponent has read
and understood the contents of the writ
petition (hereinafter referred to as the
petition) and is in a position to reply to
the
same.
However,
before
giving
parawise reply to the contents of the writ
petition the preliminary objections are as
follows:
b. That admittedly the petitioner was a
teacher in Sri Ram Junior High School,
Mawana, District Meerut. The school is
run by a society namely Sri Ram School
Society Registered under the Societies
Registration Act, 1860. The petitioner
being a teacher is not entitled to gratuity
as the "teacher" does not fall under the
definition of "Employee" as contained in
Section 2 (e) of Payment of Gratuity Act,
1972. The question has already been
decided by the Hon'ble Supreme Court in
the case of "Ahmedabad Pvt. Primary
Teachers Association Vs. Administrative
Officer". In view of the same, the instant
writ petition is liable to be dismissed on
this ground alone.
c. That so far as contention of the
petitioner regarding applicability of the
U.P. Sugar Wage Board award dated
27.11.1970 is concerned, it is pertinent to
mention here that the Sugar Wage Board
dated 27.11.1970 is not applicable to a
School or a Teacher. It is only applicable
in the case of Sugar Industries. The Wage
2 All] Smt. Krishna Bembi V. Appellate Authority, U.P. and others
 539
Board notification under Section 3 of U.P.
Industrial Dispute Act, 1947 is not
applicable
in
the
case
of
School.
Moreover, the petitioner has not raised
said plea before the Controlling Authority
under the Payment of Wages Act nor
pleaded the same before even the
appellate Authority. The petitioner is
estopped from raising the said plea for
the first time in the instant petition and
there by trying to build a new case. It is
further submitted here that the Sugar
Wage Board order dated 27.11.1970 has
been superceded by the recommendation
of third wage board published in the
Gazette date 31.01.1991. It may be that
recommendation of third wage board for
the Sugar Industries were adopted and
enforced by the State Govt. under sub
clause (b) of Section 3 of U.P. Industrial
Disputes Act, 1947 and same was
published
vide
Notification
dated
31.01.1991. As such the instant petition is
liable to be dismissed on this ground
alone.
d. That it is further relevant to mention
here that the appointment letter dated
29.06.1974 issued to the petitioner by the
society consequent upon the transfer of
school under the management of Sri Ram
School Society Mawana, District Meerut,
clearly states as under :-

CONTINUITY OF SERVICE: In case
any Gratuity Scheme is sanctioned to the
teaching staff of our school, you will be
given benefit of your previous service with
Mawana Sugar Works in this regard i.e.
from Ist November, 1966 to 30th June,
1974.

GENERAL: You will abide by rules and
regulations issued by the Society from
time to time.

The aforesaid condition of payment of
gratuity was accepted by the petitioner
without protest, the petitioner is estopped
from raising such a clean now. It is
pertinent to mention here that no benefit
of payment of gratuity was given by the
answering respondent to any of its
teaching staff. The instant petition is
frivolous in nature and is liable to be
dismissed with cost through out."

"5. That with regard to the contents
of paragraphs 3 and 4 to the petition it
may be stated that Mawana Sugar Works
Primary School, as it was then know was
transferred with effect from 22.3.1974
under the Management of Sri Ram School
Society, Mawana, which was a society
registered
under
the
Societies
Registration Act 1960. Consequent upon
the transfer of the School under the
management of Sri Ram School Society,
Mawana, the Society issued another
appointment letter dated 29.6.1974 to the
petitioner. Vide appointment letter dated
29.6.1974, the petitioner was appointed
afresh as Assistant Teacher in Sri Ram
Junior High School, Mawana w.e.f.
01.07.1974. The appointment letter was
duly signed by the General Manager of
Mawana Sugar Works, a Unit of Mawana
Sugarns Limited, Mawana who was ExOfficio Chairman of Sri Ram School
Society, Mawana. The appointment letter
issued by the Society was accepted by the
petitioner. It is incorrect to suggest that
any option was sought from the petitioner
regarding the acceptance of terms and
conditions of the appointment letter dated
29.06.1974."

"6 That the contents of paragraphs
5,6 and 7 of the petition call for no
specific reply. However, in this behalf it
may be stated that so far as option
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
exercised by the petitioner to continue to
remain in the then existing terms and
conditions of Mawana Sugar Works, a
Unit
of
Mawana
Sugarns
Limited,
Mawana is concerned, it my be stated that
the said option is not at all relevant so far
as claim of the petitioner for gratuity is
concerned. By giving option to continue
with the old terms and conditions of
service, the petitioner would not be
entitled for gratuity. At this state it is
relevant to mention here that the teachers
are not covered with in the definition of
"employee" as contained in Section 2 (e)
of payment of gratuity Act and hence can
raise no claim to gratuity under the Act."

5. The petitioner has also filed
rejoinder affidavit against the aforesaid
counter affidavits filed by the respondents
no. 2 and 3. Since the affidavits have been
exchanged between the parties and the
case is ripped for final disposal, therefore,
the case has been heard finally with the
consent of the counsels appearing for both
the sides. I have heard Sri Y.S. Bohra,
learned counsel for the petitioner and
learned Standing counsel for respondent
no.1 as well as Smt. Sunita Agarwal for
respondents no. 2 and 3 and have also
gone through the records.

6. The main submission of learned
counsel for the petitioner is that while
attaining the age of superannuation as
Head Mistress the petitioner was on
payroll
of
Mawana
Sugar
Works,
Mawana as an employee of the aforesaid
unit and in view of U.P. State Sugar Wage
Board order dated 27.11.1970 which was
applicable to the employees of Mawana
Sugar Works, Mawana has also covered
the educational institution thereunder,
therefore, the petitioner is also entitled for
payment of gratuity in view of the
aforesaid order of Wage Board, under the
provision of the Act. Contrary to it
learned counsel appearing for respondents
has vehemently contended that in view of
various pronouncement of the Hon'ble
Apex Court since the "teachers" are not
covered
under
the
definition
of
"employees"
described
in
definition
clause of the Act, therefore, the petitioner
was not entitled for payment of gratuity
under the aforesaid Act. Thus the order
passed by controlling authority under the
Act was wholly erroneous, misconceived
without jurisdiction and same was rightly
set aside by the Appellate Authority under
the Act. In support of her submission
learned counsel for respondents has relied
upon the decision of the Hon'ble Apex
Court rendered in Ahmedabad Private
Primary Teachers' Association Vs.
Administrative
Officer
and
others
reported in 2004(100) FLR 601.

7. In view of rival submissions of
the learned counsel for the parties a moot
question arises for consideration of this
Court as to whether the expression
"teacher" is covered under the definition
of "employee" given under section 2 (e)
of the Act or not and as to whether the
petitioner who was teacher retired from an
institution run and controlled by a
registered society of respondent no.2 and
3 is entitled for payment of gratuity under
the provisions of Act or not? And further
whether it would make any difference on
account of fact that institution in question
was run and managed by a society
registered under the Societies Registration
Act or by the Mawana Sugar Works,
Mawana which is a factory under the
Factories Act, 1948.

8. In order to answer this question it
is necessary to point out that an identical
2 All] Smt. Krishna Bembi V. Appellate Authority, U.P. and others
 541
question has received consideration of
Hon'ble
Apex
Court
in
case
of
Ahmedabad Private Primary Teachers'
Association (supra). In para 7 of the
aforesaid decision the Hon'ble Apex
Court has taken note of earlier decision
rendered
in
A.
Sundarambal
Vs.
Government of Goa, Daman and Diu
reported in 1988 (4) SCC 42 = AIR
1988 S.C. 1700, wherein Hon'ble Apex
Court had negatived the claim of teachers
that they are covered by the definition of
''workman' under the Industrial Disputes
Act irrespective of the fact that the
educational institution was treated to be
an Industry yet the teachers were not
treated to be workmen. In para 8 of the
judgement the reference of Haryana
Unrecognised Schools' Association Vs.
State of Haryana reported in 1996 (4)
SCC 225 has been made where the Apex
Court has considered the definitions of
''employee' as contained under Section
2(i) of the Minimum Wages Act, 1948
and held that as "teachers" are not
employed for any "skilled", "semi-skilled"
or "unskilled", manual or clerical work, it
is not open to the State Government to
include their employment as a scheduled
employment under the Minimum Wages
Act. In para 12 of the decision Hon'ble the
Apex Court has taken note of the
notification dated 3rd April, 1997 issued
in exercise of powers under Section 1(3) (
c) of the Payment of Gratuity Act, 1972
whereby the provisions of Gratuity Act
was extended to educational institutions
in which ten or more persons are
employed or were employed on the day
preceding 12 months. In para 13 of the
decision it is held that the teaching staff
being not covered by the definition of
''employee' can get no advantage merely
because
by
notification
educational
institutions as establishments are covered
by the provisions of the Act. In para 14 of
the decision it is held that even on plain
construction of the words and expression
used in definition Clause under Section
2(e) of the Act, ''teachers' who are mainly
employed for imparting education are not
intended to be covered for extending
gratuity benefits under the Act. Teachers
do not answer the description of being
employees who are "skilled", "semiskilled" or "unskilled". In concluding part
of the decision it is held that the teachers
are not entitled for any gratuity benefits
under the aforesaid Act.

9. For ready reference para 7, 8, 12,
13 and 14 of the aforesaid decision are
reproduced as under:

"7. The definition of ''workman'
contained in section 2(s) of the Industrial
Disputes Act, 1947 meaning ''any person
employed in any industry to do any skilled
or
unskilled
manual,
supervisory,
technical, operational, or clerical work'
came up for consideration before this
Court when teachers claimed that they
are covered by the definition of the
Industrial Disputes Act. In the case of A.
Sundarambal Vs. Government of Goa,
Daman and Diu, this Court negatived the
claim of teachers that they are covered by
the
definition
of
''workman'
under
Industrial Disputes Act thus:-

"Even
though
an
educational
institution has to be treated as an
''industry', teachers in an educational
institution cannot be considered as
workman.

The
teachers
employed
by
educational institutions whether the said
institutions
are
imparting
primary,
secondary, graduate or postgraduate
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
education cannot be called as ''workman'
within the meaning of Section 2(s) of the
Act. Imparting of education which is the
main function of teachers cannot be
considered as skilled or unskilled manual
work or supervisory work or technical
work or clerical work. Imparting of
education is in the nature of a mission or
a noble vocation. The clerical work, if
any, they may do, is only incidental to
their principal work of teaching."

"8. The definition of ''employee' as
contained in section 2(i) of the Minimum
Wages
Act,
1948
came
up
for
consideration before this Court in the
case of Haryana Unrecognised Schools'
Association Vs. State of Haryana, 1996
(73) FLR 1086 (SC)=1996 (4) SCC 225.
In Section 2(i) of the Minimum Wages
Act, the word ''employee' is defined to
mean: ''any person who is employed for
hire or reward to do any work, skilled or
unskilled, manual or clerical, in a
scheduled employment in respect of which
minimum rates of wages have fixed'. This
Court held that as teachers are not
employed for any skilled or unskilled,
manual or clerical work, it is not open to
the State Government to include their
employment as a scheduled employment
under the Minimum Wages Act. The
relevant observations need to be quoted:-

"A combined reading of sections 3,
2(i) and 27 of the Minimum Wages Act,
1948 and the Statement of Objects and
Reasons of the legislation makes it
explicitly clear that the State Government
can add to either part of the Schedule any
employment where persons are employed
for hire or reward to do any work skilled
or unskilled, manual or clerical. If the
persons employed do not do the work of
any skilled or unskilled or of a manual or
clerical nature then it would not be
possible for the State Government to
include such an employment in the
Schedule in exercise of power under
Section 27 of the Act. Since the teachers
of an educational institution are not
employed to do any skilled or unskilled or
manual or clerical work and therefore,
could not be held to be an employee under
Section 2(i) of the Act, it is beyond the
competence of the State Government to
bring them under the purview of the Act
by adding the employment in educational
institution in the Schedule in exercise of
power under Section 27 of the Act. Hence,
the State Government in exercise of
powers under the Act is not entitled to fix
the minimum wage of such teachers. The
impugned notifications so far as the
teachers of the educational institution
concerned are accordingly quashed."

"12. It is not disputed that by
notification dated 3rd April, 1997, issued
in exercise of powers under section 1(3)
(c ) of the Payment of Gratuity Act, 1972,
the
Gratuity
Act
is
extended
to
educational institutions in which ten or
more persons are employed or were
employed on any day preceding 12
months.
The
relevant
part
of
the
notification reads as under:-

APPLICABILITY OF THE PAYMENT
OF GRATUITY ACT, 1972
IN
EDUCATIONAL INSTITUTIONS

"NOTIFICATION NO. 5-42013/1/95-SS
II. DATED 3rd APRIL, 1997.- In
exercise of the powers conferred by Cl.
(C) of sub-clause (3) of section 1 of the
Payment of Gratuity Act, 1972 (39 of
1972), the Central Government hereby
specifies the educational institutions in
2 All] Smt. Krishna Bembi V. Appellate Authority, U.P. and others
 543
which ten or more persons are employed
or were employed on any day preceding
12 months as a class of establishments to
which the said Act shall apply with effect
from the date of publication of this
notification:
Provided that nothing contained in
this notification shall affect the operation
of the notification of the Ministry of
Labour S.O. 239 dated 8th January,
1982."

"13.
An
educations
institution,
therefore, is an ''establishment' notified
under section 1(3) (c) of the Payment of
Gratuity Act, 1972. On behalf of the
Municipal Corporation, it is contended
that the only beneficial effect of the
Notification issued under section 1(3) ( c)
of the Act of 1972, is that such nonteaching staff of educational institutions
as answer the description of any of the
employments contained in the definition
Clause 2 (e), would be covered by the
provisions of the Act. The teaching staff
being not covered by the definition of
''employee' can get no advantage merely
because
by notification ''educational
institutions',
as
establishments
are
covered by the provisions of the Act."

"14. Having thus compared the
various
definition
clauses
of
word
''employee' in different enactments, with
due regard to the different aims and
objects of the various labour legislations,
we are of the view that even on plain
construction of the words and expression
used in definition Clause 2(e) of the Act,
''teachers' who are mainly employed for
imparting education are not intended to
be covered for extending gratuity benefits
under the Act. Teachers do not answer
description of being employees who are
''skilled', ''semi-skilled' or ''inskilled'"
10. Thus from a close analysis of
law laid by Hon'ble Apex Court in case of
Ahmedabad Private Primary Teachers'
Association and other decisions referred
therein it is clear that even if the
institution is treated to be industry as held
by
Hon'ble
Apex
Court
in
A.
Sundarambal case (supra) and in view
of the fact of Ahmedabad Private
Primary Teachers' Association case
(supra) wherein in para 12 of the decision
Hon'ble Apex Court has noticed the
notification dated 3rd April, 1997 issued
in exercise of powers under Section 1(3)
(c ) of the Payment of Gratuity Act which
has extended the Act to the educational
institutions also in which ten or more
persons
are
employed
nevertheless
Hon'ble Apex Court has held that since
the expression "teachers" do not answer
the description of "employee" given in
definition clause of Section 2(e) of the
Act, therefore, the teachers would not be
entitled to get the benefit of provisions of
Act despite the provisions of Act has been
extended to the educational institution
also. Thus I am of considered opinion that
even if the order of Wage Board dated
27th November, 1970 has been made
applicable to the employees of school or
educational staff of the factory, the same
cannot confer any benefit of Payment of
Gratuity under the Act upon the teacher. It
is immaterial that the institution is run and
controlled by the society registered under
the Societies Registration Act or it is a
part and parcel of the Mawana Sugar
Works, Mawana which is a factory under
the Factories Act.

11. Thus in view of law laid down
by the Hon'ble Apex Court, it is clear that
the petitioner who was employee/teacher
of the institution run by a society
registered under the Societies Registration
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
 Act of Mawana Sugar Works, Mawana,
Meerut can not be held to be covered
under the "expression" of ''employee' as
given in definition clause of the Act even
if by the order of Wage Board dated 27th
November, 1970 the gratuity payable to
the workmen or employees of factory has
been made payable to the staff of the
educational institution also as contained
in Annexure-17 of the writ petition. Thus
being a retired teacher of the institution
the petitioner is not entitled for gratuity
under the provisions of the Act.

12. Thus on the basis of discussion
made herein before the order passed by
appellate authority under the provisions of
the Act impugned in the writ petition is
perfectly justified in given facts and
circumstances of the case and cannot call
for
any
interference
under
writ
jurisdiction under Article 226 of the
Constitution of India. Since this court has
been called upon to decide the validity
and
legality
of
orders
passed
by
Controlling
Authority
and
Appellate
Authority under the provisions of Act and
not the whole entitlement of the petitioner
for payment of gratuity under any other
statute or law if applicable to such
teachers, therefore, I should not be
understood
to
have
decided
the
entitlement of petitioner in respect of
payment of gratuity to the petitioner, if
she is entitled for payment of gratuity
otherwise in any other statute or law
applicable to her. Therefore, observations
made herein above will not preclude the
petitioner for claiming gratuity benefits, if
the petitioner is otherwise entitled for the
same under any other law, enactment or
rules applicable to the teachers like the
petitioner at appropriate forum. Thus in
view of the aforesaid discussions and
observations made, the writ petition fails
hence dismissed.

13. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2005

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Criminal Appeal No. 3980 of 2002

Abdul Husain @ Soni

...Appellant
Versus
State of U.P.

 ...Respondent

Counsel for the Appellant:
Sri P.K. Singh (Amicus curiae)

Counsel for the Respondents:
A.G.A.

Practice
of
Procedure-offence
under
Section 307/34 IPC Trail Court passed
conviction order based upon pleading
guilty to the charged offence-Court has
to find out-such statement is voluntary,
unqualified, unambiguous and untendedaccused has not disclosed about the
target to when intended to kill to any
particular person, individual or group of
person-Period in the air towards sky
with intent to commit murder not
amount the commission of offence of
attempt to murder-Trail court is duty
bound to observe all precautions to
ascertain that the admission of guilt is
wholly voluntary and untainted. Heldconviction
can
not
sustained-case
remanded for fresh Trail in accordance
as the law.

Held: Para 11

Besides the aforesaid lacuna appearing
in the case I further find that these 4-5
lines statement of the accused has been