Ble High Court
Case Details
^Y -^^ tT- G BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION f L ) N0. / 2013 ~^'s ^/T T^^/ita^':J y PETITIONER Chhattisgarh Rajya Sahakari Vipdan Sangh Maryadit, Kisaan Rice Mill,- Bhatpara, through Manager, Police Station Bhatapara, l^..o.i.^--*;"""""District Baloda Bazar - Bhatpara (C.G) ^s^.^^"--: .^^.^•|-4'a?""'^ERSus RESPONDENTS :- 1. Mant Ram Yadav S/o Shri Nanku aged about 60 years, C/o Manoj Das Noor Manjil Immam Nagar Naya Bazar Near to Diayan Matpurena Raipur (C.G) 2. Appellate Authority under payment of Gratuity Act, cum-Deputy Labour Commissioner, Raipur (C.G.) 3. Controlling Authority under Payment of Gratuity Act, Cum-Assistant Labour Commissioner, Raipur (C.G.). WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF MANDAMUS.CERTIORARI OR DIRECTION OF LIKE NATURE. )0
Legal Reasoning
HIGH COURT OF CHHATTISGARH : BILA^PUR Writ Petition (L) No.14 of 2012 PETITIQNER Chhattisgarh Rajya Sahakari Vipnan Sangh Maryadit Versus RESPONDENTS
Legal Reasoning
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Dulari Yadav & Others Versus Single Bench : Hon'ble Shri Justice Prashant Kumar hflishra Present:- Shri N.K. Vyas, Advocate for the petitioner. Shri Lav Sharma & Shri J.K. Gupta, Advocates for the respective respondents. hNNN—| ORAL ORDER (Passed on this 17th day of December, 2013) Heard learned counsel for the parties. 1. The present batch ofwrit petitions have been preferred by the employer - Chhattisgarh Rajya Sahakari Vipnan Sangh Maryadit challenging the order passed by the Controlling Authority under the Payment of Gratuity 'the Act, 1972') allowing the application filed by the Act, 1972 (for short workmen for payment of gratuity and the appellate order passed by the Appellate Authority under the Act, 1972. 2. Each of the respondent-workman moved applications under Section 7 of the Act, 1972 for payment of gratuity pleading that they have worked for about 20-25 years prior to their disengagement; however, the amount of gratuity has not been paid to them. 3. The petitioner resisted the claim on submission that the workmen were not regularly,employed and, in fact, they were engaged seasonally from one season to other i.e. during paddy procurement season in Nutan Rice Mill and other rice mills belonging to the petitioner. According to the .petitioner, the workmen have not rendered continuous service, as defined and provided under the provisions of Section 2A of the Act, 1972, therefore, they are not entitled to payment of gratuity. •^l 4. Learned counsel appearing for the respondents-workmen would submit 8 that pursuant to the order passed by the Controlling Authority, the petitioner has deposited the amount and the same has been disbursed to them and, as such,
Decision
the writ petitions have rendered infructuous. Learned counsel would further submit that even otherwise the Controlling Authority has framed specific issue as to whether the workmen have worked for 240 days or more in a calendar year and a finding has been recorded in favour of the workmen, therefore, the provision of Section 2A of the Act, 1972 has been taken care of while deciding the application and the jmpugned order does not suffer from any illegality. 5. Section 2A of the Act, 1972 reads as under: "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 leave, absence from duty sickness, accident, without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of lay-off, strike or a lock-out or cessation of work not due the employee, whether such to any fault of uninterrupted service was rendered before or after the commencement of this Act; the establishment), interrupted or (2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning ofclause (1), for anyperiod 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 (b) ^ ">^ to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days, in the case of any 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; for the said period of six months, if the employee during the period of six calendar months preceding the date which the with calculation is to be made, has actually worked under the employer for not less than- reference to (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 erriployee has actually worked under an employer shall include the days on which— (i) (ii) (iii) Industrial he has been laid-off under an agreement or as permitted by standing orders made under Employment the (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any law applicable to the other establishment; he has been on leave with full wages, earned in the previous year; he has been absent due to temporary disablement caused by accident arising out of and @ of his 10 the in employment; and course (iv) in the case of a female, she has been on maternity leave; the total so, however, period of such maternity leave does twelve weeks. exceed that not (3) where an employee, employed in a seasonal establishment, is not in continuous sen/ice 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." 6. On a reading of the aforesaid provision, it would appear that for the purpose of Section 4 oftheAct, 1972 the said continuous service has to be considered and adjudicated within the parameters of Section 2A. 7. Although the petitioner has asserted that each of the workman was seasonal employee, but a contrary finding has been recorded by the Controlling Authority, therefore, if according to the Controlling Authority, sub-section (3) of Section 2A is not attracted, then for counting continuous service under clauses (1) & (2) of Section 2A, an employee has to satisfy the Controlling Authority that he has actually worked for a period of 240 days during the period of 12 calendar months preceding the date with reference to which the calculation is to be made. 8. In Ranip Nagar Palika v. Babuji Gabhajl Thakore and Ors. , the Supreme Court, after placing reliance on te various decisions, has held that the burden of proof that the workman has worked for a period of 240 - days during the period of 12 calendar months, is on the workman. 1 2008 AIRSCW 449 •s. ^IHII^ o^ 9. In the cases in hand, issue No.3 as to whether the workman was 11 employed for a period of 240 days or more has been decided in a laconic manner by referring to the payment register and attendance register, but without recording any specific finding as to what number of days the workman was employed during the period of preceding 12 calendar months with reference to which the calculation is to be made, it appears that the finding in this regard with respect to continuous working of 240 days is perverse and the matter needs to be remitted back to the Controliing Authority for decision afresh. 10. Accordingly, the impugned orders are set aside and the matters are remitted back to the Controlling Authority for decision afresh with a further direction to record specific finding that the workmen have worked for a period of 240 days or more during the period of 12 calendar months preceding the date with reference to which the calculation is to be made. 11 Since it is fhe stand of learned counsel for the respondent workmen that the entire amount has been paid, it is directed that in all such cases where the amount has already been disbursed to the workmen, the same shall not be recovered till the matter is decided afresh by the Controlling Authority and thereafter, it shall be governed by the final order passed by the Controlling Authority. . 12. In the result, all the writ petitions stand disposed of. No order as to costs. Gowri sw- Prashant Kumar Mishra