Calcutta High Court (Appellete Side)
Sk. Ekbal @ Ekbal Sk vs The State Of West Bengal & Ors on 3 April, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
W03. 04. 2024
BP In the High Court At Calcutta
Sl. 2 Constitutional Writ Jurisdiction
Court No. 23 Appellate Side
WPA 23514 of 2023
Sk. Ekbal @ Ekbal Sk.
Vs.
The State of West Bengal & Ors.
Mr. Rananeesh Guha Thakurta
Ms. Senjuti Sengupta
Ms. Dona Ghosh
Ms. Dipa Roy
..for the petitioner
Mr. Balai Ch. Paul
Ms. Sumouli Dey
..for the respondent no.4
Mr. Jayanta Samanta Mr. Joydip Bose ..for the State In this writ petition, filed by the employee, the employee has challenged the order of the appellate authority under the Payment of Gratuity Act, 1972, Baruipur in Case No. GA-02/2022 as also the order of the Controlling Authority wherefrom the appeal emanated. The case of the writ petitioner is that he joined the employer Budge Budge Company (respondent no.4) on 18th October, 1968 and was made permanent on 25th June, 1978. The petitioner on having attained the age of superannuation retired from the services of respondent 2 no.4 on 7th July, 2006. The petitioner says that he has worked after being superannuated continuously till 15th July, 2012. The petitioner therefor is entitled to gratuity considering his length of service between 18th October, 1968 and 15th July, 2012. The petitioner lodged a claim for gratuity for the said period before the controlling authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as 1972 Act). The Controlling Authority passed an order on 27th December, 2021 by which the Controlling Authority arrived at a computation of Rs. 67,643/- to be the principal sum receivable by the petitioner (employee) on account of gratuity. The Controlling Authority also allowed interest @ 10% per annum on the said sum of Rs. 67,643/- with effect from 7th August, 2006 to the date of actual payment and simple interest of 10% per annum of Rs. 44,077/- for delayed payment for the period between 7th August, 2006 and 17th July, 2012. The sum of Rs. 44,077/- was paid by the employer (respondent no.4) as the amount payable on account of gratuity to the petitioner (employee). The petitioner did not challenge this order though his claim for gratuity for the period between 18th October, 1968 and 24th June, 1978 and between 7th July, 2006 and 15th July, 2012 was negated. The respondent no.4 (employee) challenged this order by filing an appeal. The appellate 3 authority passed an order on 9th June, 2023 which is under challenge in this writ petition. The appellate authority has allowed gratuity to the petitioner for the year 1974 by holding that the petitioner must have worked for 240 days in 1974 which made him eligible for the provident fund membership on 25th September, 1975 as per the provision of the Act and the Rules framed thereunder prevailing at the relevant period. The appellate authority had also negated the argument of the respondent no.4 that the petitioner was not in continuous service in the years 1979, 1981, 1984, 1987, 1988, 2002, 2004 and 2006 when there was suspension of work for which the writ petitioner is not entitled to gratuity for those years. After discussing the law prevailing prior to the amendment when section 2A of the 1972 Act came into operation, the appellate authority came to a conclusion that the petitioner is entitled to thirty years of continuous service in total for computation of his gratuity amount and had remanded the matter back to the controlling authority for appropriate computation. The Controlling Authority thereafter computed the gratuity amount payable to the petitioner which is annexed at page 87 of the writ petition. On a perusal of page 87 it will appear that the Controlling Authority has arrived at a figure of Rs. 88,200/- as the principal sum of gratuity 4 payable by respondent no.4 and receivable by the writ petitioner by taking into account the last drawn wage and 30 years of service. After adjusting a sum of Rs. 44,077/- being the amount already paid by the respondent no.4 to the petitioner, the Controlling Authority came to a finding that a principal sum of Rs. 44,123/- was payable to the writ petitioner. The Controlling authority computed interest for the delayed payment of Rs. 44,077/- @ 10% per annum simple interest as Rs. 26,446/- and on Rs. 44,123/- as Rs. 75,009/- adding up all these figures the Controlling Authority held that the petitioner is entitled to receive Rs. 1,45,578/- from the respondent no.4.
The petitioner says that the Controlling Authority as also the appellate authority erred while disallowing the claim for gratuity between 18th October, 1968 and 1973 as also for the period between 7th July, 2006 and 15th July, 2012.
Although, the order of the Controlling Authority was not challenged but the same having merged with the order of the appellate authority dated 9th June, 2023. The challenge to the order dated 9th June, 2023 takes into its fold the challenge thrown to the order of the Controlling Authority dated 27th December, 2021. The submissions made by the writ petitioner before the appellate authority can also be considered in the light of 5 the provisions analogous to Order 41 Rule 22 of the Code of Civil Procedure, 1908.
It is also clear from the order of the appellate authority as also from the materials placed and evidence adduced before the Controlling Authority as also the appellate authority that the petitioner has not been able to produce any document to show that he worked for continuous period of 240 days in each year for five years as per the law prevailing at the relevant point of time which made the petitioner entitled to claim and receive gratuity for the period between 18th October, 1968 and 24th June, 1978. The appellate authority however allowed gratuity for the year 1974 by holding that the writ petitioner must have worked for 240 days in 1974 which entitled him to get the provident fund coverage with effect from 25th September, 1975. For the period between 25th June, 1978 and 7th July, 2006 the appellate authority has held that the writ petitioner was in continuous service being a permanent employee in view of the provisions of Section 2A of the 1972 Act by rejecting the employers' claim that the petitioner was not entitled to gratuity when the factory was under suspension of work.
The appellate authority has also considered the judgement reported in (2008) 5 SCC 75 : AIR 2008 SC 1955 (Sita Ram & Ors. Vs. Motilal Nehru Farmers 6 Training Institute) wherein it has been held that the burden of proof is on the workman to prove that he had worked for 240 days in a year. The appellate authority has also relied upon the judgement reported in (1981) 2 SCC 238 (Lalappa Lingappa & Ors. Vs. Laxmi Vishnu Textile Mills Ltd.).
The petitioner says that the appellate authority erred in law by considering Lalappa Lingappa (supra) as by virtue of the amendment brought into the 1972 Act on 11th February, 1981 by introducing Section 2A the requirement of 240 days in a calendar year is no more in the statute. The judgement of Lalappa Lingappa was also delivered on 11th February, 1981.
The petitioner then relies upon the judgement reported in 2018 (157) FLR 477 - 2018 (5) SCC 430 (Netram Sahu vs. State of Chhattisgarh & Anr. By relying upon the said judgement the writ petitioner says that once the writ petitioner was made permanent on 25th June, 1978, irrespective of his nature of work prior to such date he becomes entitled to claim and receive gratuity from his initial entry at his employers' place i.e. 18th October, 1968. The writ petitioner also says that the appellate authority had erred in law by disallowing his claim for gratuity between 7th July, 2006 and 15th July, 2012. The writ petitioner says that there is no dispute 7 that he did not work continuously between 7th July, 2006 and 15th July, 2012. The only objection by the employer is that he is not entitled to receive gratuity after he has attained the age of superannuation as per standing orders applicable to the respondent no.4.
The respondent no.4, on the other hand, says that the petitioner was a Badli worker between 18th October, 1968 and 24th June, 1978. As per the prevailing provisions of the 1972 Act, between 1968 a and 1978 unless the workman completed 240 days in a calendar year, he was not entitled to claim gratuity. The petitioner has been unable to show any document and, in fact, in the cross-examination has admitted that he has no document in his possession to show that he had worked for 240 days or was in continuous service in the years between 1968 and 1978. The petitioner in effect has admitted himself to be badly worker.
The respondent No.4 then prays for filing of affidavit which is, however, denied as there is no requirement for the same when the facts are within a narrow campus and that the said respondent has already challenged the same order by filing a separate writ petition being WPA 19020 of 2023 which has been dismissed on 1st April, 2024.
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The Appellate Authority, according to the respondent no.4 (employer), therefor has come to a right conclusion disallowing the claim for gratuity between 1968 and 1973. The respondent no.4 also says that the ratio laid down in Sita Ram (supra) is binding in this case though the petitioner says that the said judgment having been rendered in the context of Industrial Disputes Act, 1947 (in short, I. D. Act) is not applicable in a case under 1972 Act. The respondent no.4 also submits that the Appellate Authority has rightly rejected the petitioner's claim for gratuity between 7th July, 2006 and 15th July, 2012, although on a different ground from that adopted by the Controlling Authority. It is correct, according to the respondent no.4, that the petitioner could not produce any substantive document for the period between 7th July, 2006 and 15th July, 2012. That apart and in any event, on having attained the age of superannuation on 7th July, 2006 is not entitled to receive gratuity in view of the provisions of the standing orders applicable to jute industry including the respondent no.4. The respondent no.4 also says that the ratio laid down in Netram Sahu (supra) is not applicable in the facts of the case as the employee in Netram Sahu (supra) was a State Government employee who was regularised by specific order and as such, the Hon'ble Supreme Court held that 9 the employee in that case should not be deprived for the period he rendered services prior to being made permanent.
After hearing the parties and considering the materials on record, I have no hesitance to accept that the burden of proof to produce evidence to show that the petitioner was in continuous service in the years between 1968 to 1973 lies on the writ petitioner, particularly when it has been alleged that the petitioner was a Badli worker during that period and did not have the qualifying period of service entitling him to receive gratuity. Even though it has been argued on behalf of the petitioner that the requirement of 240 days is no more germane after the amendment to the 1972 Act on 11th February, 1981 with the introduction of Section 2A in 1972 Act but the fact remains that the petitioner, as the employee, is required to adduce evidence to show that he was in continuous service during those years. This is more so on a conjoint reading of the provisions of Section 4(2), Section 2(b), Section 2(c) and Section 2A of the 1972 Act wherefrom the qualifying service and the entitlement is explicit. Without the evidence it is not possible for the Controlling Authority also to decide the issue. Only on the employee discharging his primary burden, the burden of proof may shift on the employer. In absence of the primary onus being 10 discharged by adding evidence to that effect the Controlling Authority as also the Appellate Authority was right in rejecting the petitioner's claim for the period between 1968 and 1973.
I am also not in agreement with the contention of the petitioner that the ratio laid down in Sita Ram (supra) is not applicable in the case of the petitioner since it was passed in the context of I. D. Act and the case in hand is under 1972 Act as the issue is in respect of giving onus and its discharge. The burden of proof to claim a relief or an entitlement cannot be ignored and has to be discharged by the claimant at the first instance. The Controlling Authority and the Appellate Authority, being the fact finding courts, have come to a specific conclusion on facts which cannot be reopened in judicial review considering its limitation, particularly in absence of palpable irregularity or error apparent on the face of record.
So far as the claim for the period between 7th July, 2006 and 15th July, 2012 is concerned, I am of the view that the Appellate Authority erred in law in disallowing such claim for the following reasons:
(a) That the petitioner worked with the respondent no.4 after his superannuation between 7th 11 July, 2006 and 15th July, 2012 is not in dispute. In absence of any contrary statement from the side of the employer it is to be held that the petitioner discharged his primary onus.
(b) On the petitioner having said so, it was for the employer (respondent no.4) to produce relevant documents to show that the petitioner was not in continuous service as provided under Section 2A of the 1972 Act and as a result whereof the petitioner had not completed service for one year disentitling him to receive gratuity. The employer has failed to produce relevant records though it had produced an extract from its register for the period between 1975 and 2006 to show that according to the respondent No.4 the petitioner did not fulfil the requisite criteria for some years 12 in between entitling him gratuity for those years.
(c) Under the Payment of Gratuity Act, 1972, there is no stipulation that a person after having attained the age of superannuation is not entitled to receive gratuity even if he fulfils the conditions of Sections 4(2), 2(b), 2(c) and 2A of the 1972 Act.
The employer had engaged the petitioner and received service from him. The employer after having done so cannot fall back and say that the employee being beyond 58 years of age is not entitled to receive gratuity.
(d) The respondent no.4 (employer) unlike for the period between 1968 and 1978 did not allege that the petitioner was a Badli worker. In absence of this allegation no contrary view, particularly when no evidence is adduced can either be considered 13 or taken into account.
In the aforesaid facts and circumstances, the petitioner shall be entitled to gratuity for the period between 7th July, 2006 and 15th July, 2012 as per the rate of wages last drawn in terms of the provisions of Section 4(2) of the 1972 Act.
The matter is remanded back to the Appellate Authority for computing the gratuity for the said period along with interest at the statutory rate for the delay in paying the same.
The Appellate Authority while computing the gratuity amount shall consider the documents and records which have already been placed, including the evidence adduced before it and the Controlling Authority.
This exercise by the Appellate Authority shall be done within a period of 4 months from the date of communication of a server copy of this order downloaded from the official website of this Court.
The parties including the Controlling Authority and the Appellate Authority shall act on the basis of a server copy of this order without insisting upon production of a certified copy thereof.
The writ petition stands disposed of
accordingly.
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Urgent photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities.
(Arindam Mukherjee, J. ) Rul