Let me answer all your four questions in a single go though a bit elaborately with reference to the judgment delivered by the hon'ble Supreme Court of India on 07-01-2019 in Birla Institute of Technology v. State of Jharkand [ Civil Appeal no. 2530 of 2009] (for short BITS Case)following the ratio decidendi of Ahmedabad Private Primary Teachers Association v. Administrative Officer [2004(1)SCC 755] (for short APPTA Case).. The essence of the latest BITS Case judgment is that teacher is not governed by the definition of the term "employee" u/s 2(e) of the PG Act,1972 as held before and therefore the respondent also having worked under the appellant as a teacher was not eligible to claim gratuity from the appellant BITS under the Act.
However, the irony is that in tune with the concluding remarks of the APPTA Case judgment of the Supreme Court -- " It is for the Legislature to take cognizance of the situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide." -- the Central Govt, through the Payment of Gratuity(Amendment)Act,2009, in fact, amended the definition of the term "employee" u/s 2(e) of the PG Act,1972 as follows :
" Section 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 the factory, mine, oil field, 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."
Now, through out the country, teachers employed in all types of private educational institutions are getting their gratuity under the P.G Act,1972 on their normal termination of employment. Wherever any legal hassles arose in this regard, it had become a well-settled issue by the Judiciary in the back drop of the amendment.
Earlier, in 1997, the Central Government had, by means of a notification u/s 1(3)(c) of the P.G Act,1972, brought all the educational institutions employing 10 or more no of employees in to the purview of the Act w.e.f 03-04-1997.
Therefore, the Amending Act of 2009 also inserted a new section 13-A for the purpose of validation of payment of gratuity.
Unfortunately all these changes happened subsequent to the APPTA Case judgment have not been considered by the hon'ble Supreme Court in BITS Case. Therefore, this is certainly a " Per Incuriam" judgment. A Per Incuriam Judgment is the one which is decided without reference to a statutory provision or earlier judgment which would have been relevant. In Government of AndhraPradesh & Another v. B.Satyanarayana Rao & others [2000(4)SCC 262] the Supreme Court had categorically held that the rule of per incuriam can be applied when a court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any Statute while deciding the issue.
Therefore, this judgment thus being clearly Per Incuriam can not take away the right to gratuity of teachers employed in Private Educational Institutions, whether they be Government-aided or Self-financing.
I do hope that you can cull out the answers for your questions from my foregoing analysis of the BITS case judgment.
23rd February 2019 From India, Salem
2nd March 2019 From India, Kannur