Telangana High Court
K.R. Srinivasulu, Mbnr Dist. vs Apsrtc And Another on 9 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 23197 OF 2008
ORDER:
This Writ Petition questions the action of the respondent - Corporation in not counting the period put up as light motor vehicle driver from 20.02.1980 to 05.03.1982 and removal period from 05.09.1990 to 25.02.1997 for computing gratuity as well as not extending the benefits after retirement on par with similarly- situated retired employees, as illegal, unjust and in violation of Articles 14,16 and 21 of the Constitution of India.
2. Petitioner is stated to have joined services of the Corporation as light motor vehicle driver on 20.02.1980 on regular basis. While so, on seeing the vacant post of conductor, he applied for the said post and was appointed as such from department quota on 06.03.1982 and since then, he worked continuously till retirement on 31.12.2007 on attaining the age of superannuation. On verification of the amounts paid in respect of gratuity, he came to know that he was paid less amount, hence requested the 2nd respondent - Depot Manager, APSRTC Bus Depot, Wanaparthy to furnish details of payment of gratuity and other connected amounts. Then, the 2nd respondent furnished retirement notification dated 01.07.2007 2 on 04.09.2008. On such receipt, petitioner came to know that the 1st respondent issued Circular extending medical benefits to the retired employees and their family members on being deposited some amount at one time. Since the retirement notification dated 01.07.2007 was not served in time, he was not aware of the scheme and that the period from 20.02.1980 to 05.03.1982 as well as the out of service period from 06.09.1990 to 25.07.1997 were also not taken into consideration for the purpose of computing gratuity. According to petitioner, by the time of retirement, he had put in about 27 years 10 months and 17 days service, in which period of removal from 06.09.1990 to 25.07.1997.
Petitioner stated that questioning the order of removal, he raised I.D. No. 511 of 1993 before the Labour Court-III, Hyderabad, wherein, Award was passed on 31.10.1996 directing the Corporation to reinstate him into service with continuity of service and attendant benefits but without back wages and withholding two increments with cumulative effect. Pursuant to which, petitioner was reinstated into service on 26.02.1997. The removal period was treated as continuous period as well as counted for the purpose of notional increments, thus depriving gratuity for the above period as well as the period of service from 20.02.1980 as light motor vehicle 3 driver till I was transferred to the post of Conductor. Petitioner contends that he therefore, got issued legal notice dated 25.09.2008 informing that he was paid gratuity of Rs. 81,112/- as against Rs. 1,46,628/- and further, he was ready to deposit amounts towards medical benefits. However, the Corporation did not consider the request nor arranged difference of gratuity due for the period from 20.02.1980 to 05.03.1982 as well as from 05.09.1990 to 25.02.1997.
3. By order dated 23.10.2008, this Court issued rule nisi and granted interim direction to Corporation to consider the case of petitioner for payment of gratuity for the period from 20.02.1980 to 05.03.1982 during which he worked as Light Motor Vehicle driver and also for the period from 05.09.1990 to 25.02.1997 during which he was out of employment and was subsequently reinstated into service pursuant to the Award of the Labour Court with continuity of service and attendant benefits and pass appropriate orders as per law.
4. In the counter-affidavit filed on behalf of the Corporation, it is stated that petitioner, while working as Conductor was removed from service on 05.09.1990 on the allegation of cash and ticket irregularities. Against the said order, petitioner filed I.D.No. 511 of 1993 before the Labour Court-III, Hyderabad and an Award was passed therein 4 directing reinstatement of petitioner with continuity of service, attendant benefits, but withholding two increments with cumulative effect and without back wages. In compliance of the Award, he was reinstated into service in 1997 and thereafter, he retired from service on attaining the age of superannuation on 31.12.2007. Total period of service put in by petitioner was worked out to 28 years but for the reason that petitioner was out of service from 1990 to 1997, this period was not computed while working out the gratuity.
It is stated that pursuant to the interim order dated 23.10.2008, case of petitioner was considered and gratuity for the period from 05.09.1990 to 25.02.1997 was calculated at Rs.32,455/- and was paid to petitioner vide cheque dated 17.02.2009. However, on verification of record, it was revealed that during 1981 and 1982, petitioner did not work for 240 days in a calendar year, therefore he is not entitled for gratuity for the above two years. The Depot Manager, Wanaparthy issued proceedings dated 22.05.2009 giving details of gratuity payment worked out / paid to petitioner.
4. Heard Sri V. Narsimha Goud, learned counsel for petitioner and Sri R. Anurag, learned Standing Counsel for Corporation.
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5. The fact which is not in dispute is that pursuant to the Award passed by the Labour Court, petitioner was reinstated into service and gratuity amount for the out of service period was also paid. Now the issue before this Court is petitioner was not paid the gratuity amount for the period from 20.02.1980 to 05.03.1982 during which he worked as light motor vehicle driver in the Corporation. The learned Standing Counsel submits that since petitioner did not work for 240 days in a calendar year during 1981 and 1982, he is not entitled for gratuity for the above two years. Except stating that, the Corporation has not passed any order treating the so-called period as break in service. In this connection, placing reliance on the judgment in Kothari Industrial Corporation v. Deputy Commissioner of Labour 1, learned counsel for petitioner submits that mere absence from duty without obtaining leave for which punishment of removal from service has been imposed will not result in break in continuity of service. In the said judgment, the Division Bench of this Court observed as under:
" Section 2-A(1) as it stands now, if analysed properly shows that every service rendered by the employee shall be continuous service for a period, even if there is interruption during that period on account of (1) sickness, or (2) accident, or (3) leave, or (4) absence from duty without leave except when there is break of service under orders passed as per the Standing Orders, Rules or Regulations and/or (5) lay-off, 1 1998(1) LLN 121 6 strike or lock-out or cessation of work not due to any fault of the employee concerned. All interruption of the above type have to be ignored and will not result in depriving the employee of the benefit of continuous service. It is only when the employee is absent from duty without leave and further if an order is passed by the employer treating this absence without leave as break in service in accordance with the Standing Orders, Rules and Regulations, that it would not amount to continuous service in that period. The petitioners in the instant case were allegedly absent on few days without leave and though they were penalised by the employer, merely giving such punishment of imposition of fine does not take away the case of the employees from the expression 'continuous service'. There was obviously no order passed by the employer in accordance with the Standing Orders, Rules or Regulations to the effect that the absence of the employees on those days or on any of those days was to be treated as break in service. The employees in both the cases fell squarely within the meaning of Section 2-A(1) of the Act and were therefore, in continuous service during those years for which they are sought to be deprived of the gratuity by the employer. It is only when the case of the employee does not fall within Section 2-A(1) of the Act, that the provisions of Section 2-A(2) come into play. The argument advanced on behalf of the petitioner that the employee had to put in 240 days of actual work in an year to entitle him to claim gratuity in that year is not a sound proposition of law in the instant case. Such is the requirement only when the case does not fall under Section 2-A(1) of the Act. Section 2-A(2) of the Act envisages a deeming fiction of continuous service under the employer (is envisaged) only when the employee is not in continuous service within the meaning of clause (1) of Section 2-A of the Act".
6. In view of the legal position set above, and also in the absence of any order passed by the Corporation in accordance with the Standing Orders, Rules or Regulations to the effect that absence of employee on those days or on any of 7 those days was to be treated as break in service, this Court holds that petitioner is entitled to the gratuity amount.
7. Insofar as extending the medical benefits to petitioner after his retirement on par with similarly-situated retired employees is concerned, petitioner contends that retirement notification dated 01.07.2007 was served on him only on 04.09.2008, hence, he is not in the know of Circulars dated 08.12.2005 and 04.12.2006 issued extending the medical benefits to the retired employees and their family members under 'APSRTC Retired Employees Medical Facilities Scheme, 2003'. Along with the said notification, option form in quadruplicate is enclosed to enable the superannuating employee to submit the same within two months before retirement, if he / she is willing to join the above scheme. On receipt of the notification, petitioner got issued legal notice on 25.09.2008 expressing his readiness to deposit amounts towards medical benefits, but till now, the Corporation has not responded to the said notice. For the lapse on the part of the Corporation, petitioner cannot be deprived of the benefit. In view of the same, petitioner is also entitled for medical benefits in accordance with the Circulars mentioned supra, subject to payment of fee, if any.
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8. For the aforesaid reasons, the Writ Petition is allowed directing the Corporation to compute the gratuity for the period from 20.02.1980 to 05.03.1982 and extend the medical benefits on par with similarly-situated retired employees. No costs.
9. Miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 09th July 2024 ksld