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SCA/7094/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7094 of 2011
=========================================================
NATARAJ
CERAMICS AND CHEMICAL INDUSTRIES LTD - Petitioner(s)
Versus
MANILAL
GORDHANBHAI BHATT & 2 - Respondent(s)
=========================================================
Appearance :
M/S
THAKKAR ASSOC. for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 11/11/2011
ORAL
ORDER
1. Petitioner,
Shri Natraj Ceramics & Chemicals Industries Limited, is before
this Court praying that:
“7(A) YOUR
LORDSHIPS may be pleased to issue an appropriate writ, order or
direction to quash and set aside the impugned order dt.31.01.2011
passed in Appeal No.39/2010 confirming the order passed by the
Controlling Authority in Gratuity Case No.172/2009 on the ground that
the impugned orders are without jurisdiction and authority of law,
arbitrary, perverse, unjust and contrary to provisions of law, in the
interest of justice;”
2. Learned
Advocate for the petitioner vehemently argued the matter and
submitted that the controlling authority as well as the appellate
authority has erred in passing the order under challenge. Learned
Advocate for the petitioner sought time on 09/11/2011 to enable him
to move draft amendment. The learned Advocate moved draft amendment
today. The same is allowed.
3. Learned
Advocate for the petitioner submitted that it is the case of the
petitioner that the respondent – workman had never completed
240 days with the petitioner. He, therefore submitted that the
workman is not entitled to ‘payment of gratuity’. In this regard, the
learned Advocate relied upon a decision of the Hon’ble High Court of
Allahabad in the case of ‘ Hindalco Industries Ltd., Vs. Shiv
Narayan Singh & Ors.,reported in 2007-III-LLJ’. He relied
upon the following head note:
“Petitioner –
Company engaged the respondent as an employee from 1967 to 1977. It
discharged him from service. Two years later, in July 1979 it
re-employed him and he retired in August 1987. The controlling
(‘authority’ – word is missing) under the Payment of Gratuity Act,
1972, granted him gratuity taking into consideration his earlier
service between 1967 and 1977. The petitioner contended that such
earlier service could not be counted for purposes of gratuity. It
therefore challenged in this petition the orders of the said
authorities. The petition was allowed.”
3.1 The
said decision is relied upon by the learned Advocate without being
mindful of the fact that the facts of the case on hand and the facts
of the case in which the aforesaid decision is rendered by the
Hon’ble High Court of Allahabad are different and therefore the same
has no application to the facts of the present case.
4. Learned
Advocate for the petitioner next relied upon a decision of the
Hon’ble the Apex Court in the matter of ‘ Lalappa Lingappa Vs.
Laxmi Vishnu Textile Mills reported in AIR 1981 SC 852’
and relied upon the following head note:
“(A) Payment of Gratuity
Act (39 of 1972), Ss.2 (c), 4 (1) – Expression “continuous
service” occurring in S.2 (c) – Construction of –
Permanent employee remaining absent without leave – Actually
working for less than 240 days in a year – Not entitled to
gratuity – Badli employees made permanent – Governed by
Expln. I to S.2 (s).1978 Lab IC 809 (Ker), Overruled.”
4.1 In
the aforesaid decision also the learned Advocate for the petitioner
did not take trouble to compare the facts of the case on hand and the
facts of the case which was before the Hon’ble the Apex Court.
Hence, the said decision is also, of no help to the petitioner.
5. Coming
to the facts of the present case, it is the case of the petitioner
that the Reference being (LCJ) NO.535 of 1990 was allowed by judgment
and award dated 11/01/2008 by the learned Judge of the Labour Court,
Jamnagar after the matter was remanded. The learned Judge of the
Labour Court was pleased to hold that, ‘the termination was illegal’.
The learned Judge of the Labour Court ordered that, ‘the employer
within one month from the date of publication of the award shall
reinstate the workman in service, on the original post and from the
date of termination till the date of reinstatement 25% back wages
shall be paid, with Rs.1000/- towards cost of the reference’.
5.1 This
award was under challenge in Special Civil Application No.5024 of
2008 filed by the present petitioner. The same came to be partly
allowed by modifying the award of the learned Judge of the Labour
court to the extent that, ‘25% back wages were ordered not to be
paid.’
5.2 To
understand the controversy in the matter it is very important to read
paragraph Nos.8 and 9 of the said judgment which reads as under:
“8. The council (sic
Counsel) for the petitioner has submitted that this petition is
confined only to the award of back wages and when in proper
interpretation of the award indicate that transferability was not
under challenge, this Court is of the opinion that granting of 25 %
back wages also would be giving premium to the workman’s conduct of
not reporting for duty at Jamkhambhaliya and treating himself to be
non-transferable without being in a position to justify his stand.
9.
This Court is therefore inclined to modify the award with
regard to granting of 25 % back wages as the findings of the Labour
Court have proceeded on the premises that there was a retrenchment.
The award therefore is required to be modified. The workman would not
receive any amount towards back wages.
The award for reinstatement to the post of Peon irrespective of place
of work can not be disturbed in view
of the specific giving up of the challenge to the reinstatement.
The petition therefore is required to be partly allowed and
accordingly it is partly allowed. Rule made absolute to the aforesaid
extent only. However, there shall be no order as to cost.”
(emphasis supplied)
6. The
fact that the workman was ordered to be reinstated with 25% back
wages is ‘necessarily with continuity of service.’ Because, if it was
without continuity of service there would not have been any question
of awarding any back wages. Now, at the time of assailing the award
the petitioner waived his challenge to all other things, except the
order of back wages. That means the order of reinstatement on the
original post, ‘impliedly with continuity of service’ stands and,
that being so, the learned Advocate for the petitioner cannot be
heard arguing that as the petitioner did not complete 240 days in any
year, he is not entitled to payment of gratuity. May be that for a
particular year, if the petitioner is able to show to the authority
that the workman has not discharged his duty for 240 days, then that
year may be excluded for calculating the amount of gratuity. But, to
argue that he has not worked for 240 days in any year he is not
entitled to gratuity, is too tall a claim.
7. The
Court finds no substance in the petition. Hence the same is
dismissed.
(RAVI
R TRIPATHI, J.)
sompura
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