Posted On by &filed under High Court, Kerala High Court.

Kerala High Court
The Manager vs Varghese on 2 July, 2010




WP(C).No. 20459 of 2010(F)

                      ...  Petitioner


                       ...       Respondent



                For Petitioner  :SRI.E.K.NANDAKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :02/07/2010

 O R D E R
                 K.SURENDRA MOHAN, J.
                W.P.(C) No.20459 of 2010
               Dated this the 2nd July, 2010


This Writ Petition is filed challenging Ext.P4 order of the

Appellate Authority under the Payment of Gratuity Act,

1972 confirming the order of the Controlling Authority

granting gratuity to the first respondent. The first

respondent was an employee of the petitioner in a tea

plantation. He claimed that he had service extending from

January 1986 to April 2003 continuously and thus he had a

total service of 17 years. Therefore, he claimed that he

was entitled to be paid gratuity with interest in terms of

the Payment of Gratuity Act, 1972 (the ‘Act’ for short). He

contended that he was not given any appointment order,

but that he had continued to work as directed by the

Management. He also contended that the management

was in possession of Muster Roll and other documents that

would prove his continuous employment and therefore he

demanded of the management to produce the said records.

wpc No.20459/2010 2

It is seen from the proceedings under challenge that the

workman had insisted on production of documents like the

Muster Roll, Acquittance Register etc. that were required

to be maintained by the Management by law, but what was

produced was only a statement showing the list of bonus

beneficiaries. As per the statement, the petitioner is

shown to have only less than 240 days of continuous

service in an year though he had been continuously

working for 16 years. Since the workman had submitted

that he was not in possession of any documents to show

his service, the Controlling Authority found that it was

incumbent on the part of the management to have

produced the documents that they were statutorily bound

to maintain. Since the said documents were not produced,

considering the fact that he had worked for a long period

of 16 years, his service was considered to be permanent

and payment of gratuity has been ordered on the above

basis. As per Ext.P4, the Appellate Authority has

considered the contentions of the petitioner and has found

that the order of the Controlling Authority is justified. The

Appellate Authority has also found that the management

wpc No.20459/2010 3

was not able to explain the delay in filing the appeal.

2. According to the counsel for the petitioner, the

authorities in Exts.P1 and P4 have proceeded on the

assumption that the petitioner was a permanent worker

though even the first respondent had no such case before

the authorities. With reference to Section 2A of the Act, it

is pointed out that in order to claim gratuity, a workman

had to work continuously for a period of 240 days as

stipulated by Sub Section 2 thereof. The workman has not

been able to establish the above fact by producing any

material or evidence before the authorities. It is therefore,

contended that Exts.P1 and P4 have proceeded to direct

payment of gratuity to the first respondent solely on the

basis of presumptions.

3. I notice from the impugned proceedings that both

the authorities have found that the petitioner has not

disputed the claim of the workman to have worked for 16

years under the petitioner. The claim of the petitioner is

that though the workman had service of more than 16

years, he did not have continuous service of 240 days in

any one of the years. According to the workman, he was

wpc No.20459/2010 4

not given an appointment order. He contended that the

management was in possession of documents to show the

nature and length of his service. The management that is

statutorily bound to maintain records like Muster Roll,

acquittance register etc. certainly is in possession of

documents that would prove the nature and duration of

the service put in by the first respondent. Instead of

producing the records that the management is statutorily

bound to maintain, the petitioner has produced only a

statement showing the list of bonus beneficiaries marked

as Exts.P1 to P15. Having not produced the best evidence

that is available with the petitioner, the petitioner cannot

be heard to contend that the workman had not produced

any evidence to prove that he was a permanent worker or

that he had worked for more than 130 days a year. Even if

this writ petition is admitted, in the above state of

evidence in this case, I do not think that any purpose

would be served. Though the counsel for the petitioner

sought for remanding the entire matter and the grant of a

fresh opportunity to adduce further evidence, I do not

think such a course is justified at this length of time,

wpc No.20459/2010 5

considering the fact that the first respondent is a poor

workman. I am not satisfied that the petitioner has been

prosecuting these proceedings with the due diligence and

care that is expected of a reasonable person. For the

foregoing reasons, this writ petition fails and is

accordingly dismissed. No costs.




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