IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.13289 of 2000
Date of decision:31.08.2009
District Food & Supplies Controller, Ropar and another ...Petitioner
versus
Sh. Prem Chand and another ...Respondents
CORAM: HON'BLE MR. JUSTICE K.KANNAN
Present: Ms. Monica Chhibbar Sharma, Deputy Advocate General,
Punjab.
None for the respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
—-
K.Kannan, J.(Oral)
1. The order under challenge is a direction by a Controlling
Authority under the Payment of Gratuity Act for calculation of gratuity
including the period when a workman had not worked by virtue of an
order of termination operating against him. This order of termination,
which was purported to have been issued on 26.02.1983, was set aside by
the Labour Court by an award directing reinstatement with continuity of
service, but without back wages. The reinstatement was effected on
11.08.1993. It is an admitted case that he was put on regular pay scales
and served in the establishment till he was superannuated on 31.12.1998.
Civil Writ Petition No.13289 of 2000 -2-
2. It was a case of a workman, who had been employed as a
Chowkidar on daily wages from 07.12.1979 to 26.02.1983 with breaks in
between, when the termination was made on 26.02.1983. It became a
point of contention and subject of a reference to a Labour Court which in
turn resulted in a direction for reinstatement referred to above. The
Controlling Authority found for the purpose of computation of gratuity
the period when the person had been illegally terminated to also avail for
reckoning the period of continuous service and for calculating the
amount of gratuity payable to the workman.
3. The learned counsel appearing for the management,
Ms.Monica Chhibbar Sharma, refers me to the definition in Section 2-A
(1) of the Payment of Gratuity Act, which reads as follows:
“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 treating the absence as break in service has
been passed in accordance with the standing order, 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.”
4. The learned counsel would submit that it is the actual
service that alone can be taken in case of daily rated worker. The learned
counsel also relies on a judgment of the Hon’ble Supreme Court in
Lalappa Lingappa and others Versus Laxmi Vishnu Textile Mils,
Sholapur-1981-I-LLJ 308, that dealt with an interpretation under the
Payment of Gratuity Act, Section 2(c) in its unamended form brought
Civil Writ Petition No.13289 of 2000 -3-
through Explanation 1 to Section 2(c) for the meaning of the expression
“actually employed”. The Hon’ble Supreme Court has held in the
following words:-
“Two questions arising for a decision in these appeals
are: (1) Whether permanent employees are entitled to
payment of gratuity under Section 4(1) for the years in
which they remained absent without leave for a number of
days in a year and had actually worked for less than 240
days due to absence without leave; and (2) whether the
badli employees are entitled to such gratuity on becoming
permanent employees, for the badli period in respect of the
years in which there was no work allotted to them due to
their failure to report to duty.
Held: It is important to bear in mind that in
Explanation I the Legislature has used the words “actually
employed”. If it was contemplated by Explanation I that it
was sufficient that there should be a subsisting contract of
employment, then it was not necessary for the Legislature to
have used the words “actually employed”. It is not
permissible to attribute redundancy to the Legislature to
defeat the purpose of enacting the Explanation. The
expression “actually employed” in Explanation I to Section
2(c) must in the context in which it occurs, must mean
“actually worked.”
The High Court was right in holding that the
permanent employees were not entitled to payment of
gratuity for the years they remained absent without leave
and had actually worked for less than 240 days in a year.
The badli employees are not covered by the
substantive part of the definition of “continuous service” in
Section 2(c) but come without Explanation I and, therefore,
are not entitled to payment of gratuity for the badli period,
i.e., in respect of the years in which there was no work
allotted to them due to their failure to report to duty.”
The Hon’ble Supreme Court has held that badli employees would not be
covered by the substantive part of the definition of “continuous service”
in Section 2(c) and that they shall not be entitled to payment of gratuity
for the badli period, that is, in respect of the periods for which there had
no work allotted to them due to their failure to report to duty. In my
view, it is this particular observation of the Hon’ble Supreme Court that
Civil Writ Petition No.13289 of 2000 -4-
denied to them their entitlement namely, of the failure of the workman to
report to duty. The daily rated workers who abandoned the duty or who
had failed to report for duty for no conduct that could be attributed to the
management, cannot count themselves to be in an actual service and seek
for computation on that basis. It would make all the differences in this
case, for the workman who had been terminated on 26.02.1983, was
complaining that he had been wrongly terminated. The Labour Court
had accepted such a premise and directed reinstatement as well as
continuity of service. The provision for continuity of service in the
award of the Labour Court could only be seen in the context of every
other benefit which the workman would have been entitled to, other than
the back wages, which, by express order, the Labour Court was
disallowing in this particular case. If it had not been a case of
reinstatement with continuity of service and merely an incident where a
workman, who was badli worker, who on being regularized, could have
been disentitled for reckoning the period when he was not actually
employed for the purpose of computation of gratuity. This shall not be in
a case where there is an intervention through an award of the Labour
Court that provides for continuity in the service. The continuity in the
sense employed by the Labour Court ought, in my view, to be applied
also to the entitlement of gratuity.
5. The order of the competent authority, under the
circumstances, is justified and there is no warrant for an intervention
before this Court.
Civil Writ Petition No.13289 of 2000 -5-
6. The writ petition is, therefore, dismissed. There shall be,
however, no order as to costs.
(K.KANNAN)
JUDGE
31.08.2009
sanjeev