NAFR 1 - Chhattisgarh Infrastructure Development Corporation Through The Divisional Infrastructure Development Corporation, Transport v. 1 - Dheeraj Diwan S/o
Case Details
SMT NIRMALA RAO 1 HIGH COURT OF CHHATTISGARH AT BILASPUR WPL No. 42 of 2014 NAFR 1 - Chhattisgarh Infrastructure Development Corporation Through The Divisional Infrastructure Development Corporation, Transport Division, Raipur C.G. , Chhattisgarh Chhattisgarh Manager, ... Petitioner versus 1 - Dheeraj Diwan S/o Shri Gurusharan Diwan, Ex Guard, Inspector, Laxminagar, Mandir Bada, Ramkund, Raipur C.G. , Chhattisgarh 2 - The Deputy Labour Commissioner Appellate Authority Under Payment Of Gratuity Act, 1972, Raipur C.G. , District : Raipur, Chhattisgarh ---- Respondents For Petitioner For Respondent No.1 For Respondent No.2 : : :
Legal Reasoning
Shri Rajkumar Sahu, Advocate holding the brief of Shri Prateek Sharma, Advocate. Shri J.N. Nande, Advocate. Shri Tushar Dhar Diwan, CGC. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 28.04.2025 1. The petitioner has challenged the order passed by the Appellate Authority under the Payment of Gratuity Act, 1972, in Appeal Case No.10/P.G.A./2013, dated 9.1.2014, whereby the appeal preferred -2- by the petitioner was dismissed and the order passed by the Controlling Authority dated 15.5.2013 was affirmed. 2. The facts of the present case are that respondent No.1 was appointed to the post of Guard Inspector in the erstwhile Madhya Pradesh State Roadways Transport Corporation. His services were terminated vide order dated 28.7.1984, which was challenged before the learned Labour Court, Raipur. The order of termination was set aside by the learned Labour Court vide order dated 22.9.1990, and as a result, the petitioner was reinstated. After the re-organization of the State of Madhya Pradesh and the creation of the State of Chhattisgarh, the services of respondent No.1 were transferred to the State of Chhattisgarh under the petitioner. Vide order dated 24.2.2001, respondent No.1 was again removed from services and that order was affirmed by the learned Labour Court vide order dated 22.7.2006. Thereafter, respondent No.1 moved an application for the payment of gratuity before the Controlling Authority. The Controlling Authority calculated the gratuity (15 x 28 x 6500/ 26 = 1,05,000/-) and issued a direction to the employer to make the payment. The employer/petitioner preferred an appeal before the Appellate Authority, which was dismissed vide order dated 9.1.2014. Against the said order, the petitioner has preferred this petition. 3 3. Learned counsel for the petitioner would submit that the services of respondent No.1 were terminated vide order dated 28.7.1984 and he was reinstated by the learned Labour Court vide order dated 22.9.1990. Thus, for a period of six years, respondent No.1 was not in service, and this period was taken into consideration by the Controlling Authority while computing the gratuity. He would pray to modify the order passed by the Controlling Authority and affirmed by the Appellate Authority. 4. On the other hand, learned counsel for respondent No.1 would oppose the submissions made by counsel for the petitioner. He would contend that respondent No.1 was reinstated as the order of termination of service was found bad in law. Therefore, the Controlling Authority reckoned that the period while computing the amount of gratuity. 5. Learned counsel for respondent No.2 would support the order passed by the Controlling Authority and affirmed by the Appellate Authority. 6. Heard counsel for the parties and perused the documents present on the record. 7. Section 2C of the Payment of Gratuity Act, 1972 (for short ‘Act, 1972’) defines ‘continuous service’. According to the definition, “continuous service" means continuous service as defined in Section 2A of the Act. Section 2A of the Act, 1972 states that an -4- employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including the service which may be interrupted on account of sickness, accident, leave and absence from duty without leave. 8. Section 2A is reported herein below:- “2A. [ Continuous service.- For the purposes of this Act,- (1)An employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order ] [* * *] [ The words " imposing a punishment or penalty or" omitted by Act 22 of 1987, Section 3 (w.e.f. 1.10.1987).][treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement of this Act. (2)Where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer- (a)for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i)one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii)two hundred and forty days, in any other case; 5 (b)for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than- (i)ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii)one hundred and twenty days, in any other case.] [Explanation .-For the purposes of clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which- (i)he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment; (ii)he has been on leave with full wages, earned in the previous year; (iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv)in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed [such period as may be notified by the Central Government from time to time.] (3) Where an employee, employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy-five per cent., of the number of days on which the establishment was in operation during such period.” 9. A bare reading of Section 2A of the Act, 1972 would make it clear that the period for which the services of the workman remained terminated cannot be taken into consideration to compute the -6- amount of gratuity. 10. In the present case, respondent No.1 was appointed in the year 1973 and he was removed from the services in the year 2001. In between, vide order dated 28.7.1984, his services were terminated and he was reinstated on 22.9.1990. The above chronology would show that respondent No.1 worked under the petitioner from 1973 to 1984 and from 1990 to 2001. 11. In the present case, the Controlling Authority computed the entire service of respondent No. 1 from the year 1973 till 24.2.2001. The period during which respondent No.1 remained out of service was also taken into consideration, which appears to be incorrect according to the definition of continuous service. Therefore, the order passed by the Controlling Authority and affirmed by the Appellate Authority is modified as under:- (i) Respondent No.1 worked for 21 years, 6 months and 6 days. The above stated period is rounded off to 22 years. The last salary drawn by respondent No.1 was Rs.6,500/-. The calculation of the gratuity would be as under:- 15 x 22 x 6,500/ 26 = 82,500/-. (ii) Respondent No.1 would be entitled to receive an amount of Rs.82,500/- from the petitioner. It is informed that the petitioner has already deposited Rs.1,05,000/- with the Controlling Authority pursuant to the order dated 15.5.2013. Therefore, 7 respondent No.1 would be at liberty to move an application for withdrawal of Rs.82,500/- in accordance with the provisions of Section 4 of the Act, 1972. The interest applicable according to the Act of 1972 would be payable to the petitioner. The petitioner would be at liberty to collect the remaining amount.
Decision
12. With the aforesaid observation(s), this petition is disposed of. Nimmi Sd/- (Rakesh Mohan Pandey) Judge