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3. The case focussed by the third respondent/writ petitioner before the Writ Court is that he was initially employed as a casual labourer in the appellant/TNCSC, which is fully owned by the Government of Tamil Nadu, in the year 1972 and was absorbed in the year 1998 as a regular employee; he retired from service on 30.6.2001, after putting in 29 years of total service. The appellant/TNCSC absorbed him as a regular employee, vide order dated 02.01.1998 passed by the Government of Tamil Nadu, wherein, the Government directed the appellant/TNCSC to make permanent such of those casual labourers who had completed ten years of service. Therefore, the third respondent/writ petitioner/employee claimed that he had put in required number of years of service to be regarded as a permanent employee and also eligible for calculating the gratuity. He retired on 30.06.2001, without payment of gratuity, on the ground that he had served only two years of permanent service. Since the claim was denied by the appellant/TNCSC, he moved the first respondent-Controlling Authority (Assistant Commissioner of Labour) with an application under Section 7(1) of the Payment of Gratuity Act, 1972 (for short, 'the Act'). The said application was contested by the appellant/TNCSC on the ground that there was a delay in filing the application and also that he was appointed as permanent employee only in 1999 as a labourer and had not completed five years of service to claim gratuity, among other grounds. The Controlling Authority, after looking into the facts and appreciating the materials available before him, passed an order on 29.11.2005 holding that the writ petitioner was already functioning as a casual labourer even prior to 1999 and he was made permanent in the year 1998 and continued in employment thereafter and as the writ petitioner was functioning for more than ten years prior to regular appointment/permanent appointment, he was entitled to get gratuity amount as he was having total service of 12 years and accordingly, the Controlling Authority calculated the gratuity payable to him at Rs.31,154/- on the ground that his daily wage was Rs.150/- per day and he had served for more than 12 years. Aggrieved by the said order of the Controlling Authority, the appellant/TNCSC filed appeal before the second respondent/competent appellate authority (Joint Commissioner of Labour) in P.G.A.2/2006, which was allowed by order dated 10.08.2006, against which, the Writ Petition was preferred by the employee before the learned single Judge.

5. The appellant/TNCSC contended before the learned single Judge that the third respondent-writ petitioner-employee has not rendered five years of service in the TNCSC and his direct employment was from 30.04.1999 to 30.06.2001, i.e. for a period of two years and two months and even though he was absorbed in the TNCSC, he was previously employed not directly in the TNCSC and hence, the order of the appellate authority is just and proper.

6. After looking into the said rival claims made by the respective parties and on a perusal of the order of the Government issued in Letter No.Ms.No.2, Co-operative, Food and Consumer Protection Department, dated 02.01.1998, it was found by the learned single Judge that the Government ordered regularisation of the services of the persons serving as Loadmen in the TNCSC for ten years and the said Government Letter was issued to implement the policy announced by the Chief Minister of Tamil Nadu on the May Day celebrations held on 01.05.1997 and the third respondent-writ petitioner having completed ten years of service in the TNCSC godown as Loadman, was admittedly regularised from 30.04.1999 and he retired on attaining the age of superannuation on 30.06.2001. The learned single Judge considered the legal position under Section 2(e) of the Act and applying Section 7(2) of the Act, which mandated payment of gratuity for a person who served for a period of five years and the writ petitioner, having served for more than 12 years as per the factual findings rendered by the Controlling Authority and that the finding of facts have not been dealt with by the appellate authority who held that the writ petitioner has initially served on contract basis and therefore, he cannot be given gratuity, the learned single Judge, however took a view that the Government, while ordering regularisation, absorbed him in the TNCSC and such of those persons who have completed ten years of service though under the contractor, Section 2(e) of the Act makes no distinction of employment on daily wages basis and employment through the contractor and the Legislature had not made any distinction between daily rated workmen and permanent workmen and that being the intention, the definition would have been in different and positive terms. The learned single Judge, applying the ratio laid down by the Supreme Court in Silver Jubilee Tailoring House and others Vs. Chief Inspector of Shops and Establishment and another, reported in 1974 (3) SCC 498, in Shri Birdichand Sharma Vs. First Civil Judge, Nagpur and others, reported in 1961 (3) SCR 161, in Divisional Manager, New India Assurance Company Limited Vs. A.Sankaralingam, reported in 2008 (10) SCC 698, in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, reported in 2010 (3) SCC 192 = AIR 2010 SC 1116, a decision of a Division Bench of this Court in the case of Jeevanlal Limited Vs. Controlling Authority under the Payment of Gratuity Act, reported in 1982 (1) LLJ 86, a decision of the Himachal Pradesh High Court reported in 2008 (2) LLJ 8 in the case of H.P.S.E.B. Vs. Balak Ram, in which, the decision of a Full Bench of the Punjab and Haryana High Court reported in AIR 1988 P & H 265, in the case of Kesar Chand Vs. State of Punjab, was followed and also applied the principles of the Supreme Court in the decisions reported in AIR 2003 SC 1526 = 2003 (3) SCC 40 = 2003 (1) LLJ 1119 (H.Gangahanume Gowde Vs. Karnataka Agro Industries Corporation Limited) and 1994 (1) LLN 573 (Chander Sain Vs. State of Haryana), held that the appellate authority is not justified in denying the gratuity to the writ petitioner on the ground that he became permanent workman only in the year 1999 and the Government having passed the order to make the persons permanent, who have completed ten years of service on daily wages, the benefit shall be given in full, failing which, it will have an effect of not extending the full benefit by the appellant-TNCSC and therefore, the order of the Controlling Authority is just and proper and that of the appellate authority is liable to be set aside and thereby, the learned single Judge allowed the Writ Petition with further direction as stated supra.

9. We have also heard the learned Special Government Pleader appearing for the respondents 1 and 2 on the above aspects.

10. We have heard the learned counsel appearing for the parties and perused the material documents available on record.

11. It is seen that the third respondent-employee was a casual labourer in the appellant-TNCSC from 1972 and he was absorbed in 1998 as a regular employee and he retired from service on 30.6.2001. The appellant-TNCSC took a stand by contesting the matter by filing counter affidavit before the Writ Court that the TNCSC is an undertaking fully owned by the Government of Tamil Nadu and the aim of the TNCSC is to distribute essential commodities to the consuming public at subsidised rates fixed by the Government of Tamil Nadu through Co-operatives and retail shops run by the TNCSC and for the said purpose, the TNCSC is having godowns in Taluks and essential commodities like rice, wheat, etc., are being received from the Food Corporation of India or from other sources and are stored in the godowns and then moved to the ration shops as and when required. In order to handle the essential commodities in the godowns, the handling works are entrusted to Maistries, who engage their Loadmen in the godowns and distribute the handling charges to the Loadmen engaged by them. This practice was in vogue before 1999. On 01.05.1997, the Chief Minister of Tamil Nadu announced that the Loadmen working in the appellant-TNCSC will be entrusted work directly and wages will be paid to them. Accordingly, the Loadmen working under the Maistries were identified in the year 1998 and were given direct entrustment of work from April 1999 onwards by issuing separate order to each Loadman and the wages are paid to them directly and certain benefits were also extended to them. The third respondent-employee who was working under a Maistry in Sirukaveripakkam in Kancheepuram Region, was allowed to work continuously under the TNCSC from 30.04.1999 by the Regional Manager, Kancheepuram, by proceedings in No.E1/3196/97, dated 30.04.1999 and it was clearly stated therein that on the day when he will be attaining the age of superannuation, he will be relieved from the work of loading and unloading activities. An employee is entitled to gratuity only after rendering not less than five years of service with the employer and therefore, it is the contention of the learned counsel for the appellant-TNCSC that the employee's direct employment was only from 30.4.1999 to 30.06.2001, i.e. for a period of two years and two months and even though he was absorbed in the TNCSC, he was previously employed not directly in the TNCSC and therefore, the impugned order of the appellate authority is just and proper.

15. From a reading of the above order, it is clear that the persons on the rolls of the godowns and worked under the Maistries and having rendered ten years of service, were to be absorbed and accordingly, the absorption of the third respondent-employee was made in the appellant-TNCSC.

16. A paramount question was raised by the learned counsel for the appellant-TNCSC by stating that the godown Maistry is not in the hierarchy of the position in the administrative side and the godown Maistry is a person having control over the Loadmen for the purpose of loading and unloading of the stock coming to the godown and therefore, the services rendered by the third respondent under the godown Maistry could not be taken into account for counting the ten years of minimum service for absorption in the TNCSC as required under the Act for making payment of gratuity and the third respondent having come under the direct employment from 30.04.1999 and retired from service on 30.06.2001, has only rendered two years two months service and therefore, the requirement under Section 4 of the Act for a minimum of five years, is not satisfied, and therefore, the benefit of payment of gratuity under Section 7(2) of the Act cannot be extended to him and if such a course is adopted, those who are all working under the contractors may raise an alarm claiming the extension of benefits under the Payment of Gratuity Act. It may be the reason that the impact of extending such benefits will have a serious concern. But in the given circumstances of the case, the policy was announced by the Chief Minister of Tamil Nadu as to the conditions of service of the Loadmen working in the TNCSC for several years and having not gained any benefits from the TNCSC, they have been absorbed in their position as such, and thus, those worked in the TNCSC having been allowed to be made permanent by absorbing them and that the policy has been given effect to by taking into account the persons who are the Loadmen in the rolls of the godown and such a period of service rendered by the third respondent as daily wages, has to be taken into account, though under the godown Maistry, unless and otherwise in the context provided under the Act there is a convincing material element to show that the godown Maistry is a contractor and any such contract was given to such a person. The verification of the records in the present case reveals that the godown Maistry has not been shown as a contractor and when that being the position, in the absence of any material information to the peculiar facts and circumstances of this case, we are of the considered opinion that the Loadmen who had been under the godown Maistries as employees will come under the definition of "employee" under Section 2(e) of the Act, and having realised the benefits of the scheme of the Government and the policy announced by the Chief Minister on the May Day celebrations, those who are all on the rolls of godowns, having been made as permanent employee for the benefits, the view taken by the learned single Judge as to the entitlement of the payment of gratuity has to be extended to the third respondent also, is legally correct on facts and law and the concurrent view of the Controlling Authority and the learned single Judge as to the factual findings and application of the law, in our considered opinion, has to be confirmed. Accordingly, we have no hesitation to dismiss this Writ Appeal.