THE ASSISTANT MANAGER, WARIYAT COFEE ESTATE, MUTTIL P.O., WAYANAD v. USMAN S/O HUSSAIN; THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 & THE DISTRICT LABOUR OFFICER, WAYANAD; THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 & REGIONAL JOINT LABOUR COMMISSIONER, KOZHIKODE

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944`** ## **`WP(C) NO. 5673 OF 2012`** ## **`PETITIONER:`** ``` THE ASSISTANT MANAGER, WARIYAT COFEE ESTATE, MUTTIL P.O., WAYANAD. ``` ``` BY ADVS. SRI.E.K.MADHAVAN SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA ``` ## **`RESPONDENTS:`** ``` 1S.USMAN S/O.HUSSAIN, SARATHODIYL HOUSE, MUTTIL P.O., WAYANAD-673122. 2THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 & THE DISTRICT LABOUR OFFICER, WAYANAD – 673 121. ``` ``` 3THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT, 1972 & REGIONAL JOINT LABOUR COMMISSIONER, KOZHIKODE – 673 006 ``` ``` BY ADV SMT.V.RENJU ``` ``` SRI.JUSTIN JACOB – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 5673 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** Orders Ext.P3 dated 10.02.2009 and Ext.P5 dated 18.10.2011 of the Controlling Authority and Appellate Authority are under challenge on behalf of the petitioner. 2. Petitioner is running a coffee estate at Wayanad and had been employing employees during the coffee season for plucking the coffee. 1[st] respondent according to the assertion of management was taken as a permanent worker only 01.07.1997. However, prior to that, for the period 1991 to 1996, was a temporary worker and rendered less than 240 days as noticed by the Controlling Authority. Gratuity after the period of regularization had already been paid on retirement, but knocked the door of the Controlling Authority for not granting gratuity for the period 1991 to 1997. Petitioner management appeared and contested the case on the ground that 1[st] respondent was a temporary worker, was not in continuous service prior to 01.07.1997 and had not worked ``` WP(C) NO. 5673 OF 2012 ``` ``` 3 ``` upto 240 days in a year, therefore not entitled to the gratuity. Since the parties were at variance, the workman brought on record Provident Fund Annual Statement of Accounts Slip of 1991-92, 1992-93, 1994-95 to 2001-2002 which reflected not only his account number but also the remittance of contribution for every year. 3. On the other hand, management brought on record Ext.R1 and also produced the wage register of leave with wages and bonus for the period 1991-1992 to 1996-1997 (Exhibit R2) reflecting that workman had worked below 240 days. 4. Controlling authority noticing all the facts allowed the claim, appeal preferred has been dismissed. 5. Learned counsel appearing on behalf of the petitioner in support of the argument relied upon the provisions of Section 2A(2)(a)(ii) of the Payment of Gratuity Act to found that an employee falling in the category of Sub- ``` WP(C) NO. 5673 OF 2012 ``` ``` 4 ``` section 1 of Section 2A of the Act is required to work for 240 days in a year for claiming gratuity. Since the controlling authority candidly admitted the workman had worked for less than 240 days ie., 170 1/2 days in 1992-93, 191 days in 19931994, 217 days in 1994-95, 177[1/2] days in 1995-96 and 211 days in 1996-97, therefore the aforementioned provisions are attracted. In support of the contention has relied upon the judgment of the Supreme Court in _**Rajasthan State Ganganagar S. Mills LTD**_ . v. _**State of Rajasthan and Another**_ [(2004)8 Supreme Court Cases 161]. 6. On the other hand, learned counsel appearing on behalf of the workman submitted that the provisions of Section 2A(2)(a)(ii) would only come in case the employee does not fall within the meaning of clause (1). The uninterrupted service would also mean an accident, sickness, absence from duty without leave and therefore would be entitled to the benefit of the gratuity for period he remained worker from 1991-1997. ``` WP(C) NO. 5673 OF 2012 ``` ``` 5 ``` The finding of fact cannot be interfered with until and unless there is gross illegality or perversity which is not made out as the judgment relied upon pertains to the interpretation of the provisions of Section 25 of the Industrial Dispute Act. 7. I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force on merit. 8. Concededly, the workman had been in employment of the petitioner from 1991-1997 and worked for the period referred to above. In order to bring the case within the provisions of Section 2A(2)(a)(ii) of the Payment of Gratuity Act, it would be expedient to reproduce the same: ## **“2A Continuous service.** For the purposes of this Act, - (1) 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 ``` WP(C) NO. 5673 OF 2012 ``` ``` 6 ``` 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. (2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer - (a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than - (i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case;” 9. On comparative reading of the aforementioned, the provisions of Section 2A(2)(a)(ii) of the Payment of Gratuity Act would come into play if the person is not falling within the ``` WP(C) NO. 5673 OF 2012 ``` ``` 7 ``` definition of Clause (1). This is not a case where the workman was not falling within the definition of clause (1) as the uninterrupted service has been clearly defined 2A(1). The order of the Controlling Authority affirmed by the Appellate Authority, granting the gratuity keeping in view the fact that the EPF for that period had also been paid to the workman, in my view, do not suffer from any illegality and perversity. For the reason aforementioned, I do not find any justification warranting interference under Article 226 of the Constitution of India. Orders are justified. Writ petition stands dismissed. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 5673 OF 2012 ``` ``` 8 ``` ## **`APPENDIX OF WPC NO.5673/2012`** ``` PETITIONER EXHIBIT ``` ``` EXHIBIT P1TRUE COPY OF THE GRATUITY APPLICATION FILED BY THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT ``` ``` EXHIBIT P2TRUE COPY OF THE COUNTER STATEMENT/OBJECTION FILED BY THE PETITIONER IN G.C.12/2003 ``` ``` EXHIBIT P3TRUE COPY OF THE ORDER DATED 10.2.2009 PASSED BY THE SECOND RESPONDENT IN G.C.NO.12/2003. ``` ``` EXHIBIT P-4TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE THIRD RESPONDENT ``` ``` EXHIBIT P-5TRUE COPY OF THE ORDER DATED 18.10.2011 PASSED BY THE THIRD RESPONDENT IN GAC NO.602 OF 2009 ```