W.P.(C) Nos. 517 of 2012 and 7499 of 2012: Bharat Sanchar Nigam Limited vs Controlling Authority under the Payment of Gratuity Act and Appellate Authority; and P. Satheesan Pillai v. Bharat Sanchar Nigam Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ## **`WP(C) NO. 517 OF 2012`** ## **`PETITIONER:`** ``` BHARAT SACHAR NIGAM LIMITED, REP. BY ITS GENERAL MANAGER, TELECOM, BSNL, PULIMOODU JUNCTION, KOTTAYAM-686 001. ``` ``` BY ADV SRI.SAJI VARGHESE, SC, BSNL ``` ## **`RESPONDENTS:`** ``` 1THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT AND ASSISTANT LABOUR COMMISSIONER (CENTRAL) THIRUVANANTHAPURAM-695 001. 2THE APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT AND REGIONAL LABOUR COMMISSIONER (CENTRAL), KOCHI-682 030. ``` ``` 3SHRI.P.SATHEESAN PILLAI, THOPPIL HOUSE, PADINJATTINKARA P.O., PALA-686 575, KOTTAYAM DISTRICT. ``` ``` BY ADV SRI.MANU S., DSG OF INDIA SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.T.MADHU ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH WP(C).7499/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 517 & 7499 OF 2012 ``` ``` -2- ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945`** ## **`WP(C) NO. 7499 OF 2012`** ## **`PETITIONER:`** ``` P.SATHEESAN PILLAI THOPIL HOUSE, PADINJATTINKARA P.O., PALA, KOTTAYAM DISTRICT. ``` ``` BY ADV SRI.T.MADHU ``` ## **`RESPONDENTS:`** - `1 BHARAT SANCHAR NIGAM LTD., REPRESENTED BY ITS GENERAL MANAGER, TELECOM, BSNL, PULIMOODU JUNCTION, KOTTAYAM DISTRICT. PIN:686001.` - `2 THE CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT AND ASSISTANT LABOUR COMMISSIONER (CENTRAL),` ``` THIRUVANANTHAPURAM-695001. ``` - `3 THE APPELLATE AUTHORITY UNDER THE PAYMENT GRATUITY ACT AND REGIONAL LABOUR COMMISSIONER (CENTRAL), KOCHI-682030.` ``` BY ADVS. ``` ``` SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.SAJI VARGHESE, SC, BSNL SRI.P.PARAMESWARAN NAIR, ASG OF INDIA SRI.MANU S., DSG OF INDIA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH WP(C).517/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 517 & 7499 OF 2012 -3- ``` ## **`JUDGMENT`** This order of mine shall dispose of two writ petitions; W.P.(C)No.517 of 2012 (first writ petition) filed on behalf of Bharat Sanchar Nigam Limited (BSNL) against the order of the Controlling Authority allowing the appeal preferred by respondent No.3 the workman, ordering the difference in gratuity along with the interest and W.P.(C)No. 7499 of 2012 (second writ petition) on behalf of the workman, claiming the modification of the order of the appellate authority with regard to the findings qua loss from wages. 2. Succinctly, the facts in brief are that respondent No.3 in the first writ petition/ petitioner in the second writ petition/workman, prior to the regularization of service as Masdoor in Telecom services on 11.6.1987, had been on the rolls of Telecom services from 1970. His service was regularized with effect from 11.6.1987 as permanent employee. Telecom services ``` WP(C) NO. 517 & 7499 OF 2012 -4- ``` was given a different nomenclature as Bharat Sanchar Nigam Limited (BSNL) and the employees working in the erstwhile Telecom department were mutatis mutandis employees of the BSNL. On 28.02.2010, the claimant superannuated. At the time of retirement, was paid a gratuity of Rs.1,73,712/- (Rupees One lakh seventy three thousand seven hundred and twelve only) as permissible under Rule 50 of the Central Civil Service Pension Rules, 1972. On 06.10.2010 a complaint before the Controlling Authority under the Payment of Gratuity Act, 1972 was submitted at the behest of the workman claiming the difference of the gratuity and regarding miscalculation by Management qua the last drawn wages which was calculated as Rs.7,645/- (Rupees Seven thousand six hundred and forty five only) instead of Rs.13,154/(Rupees Thirteen thousand one hundred and fifty four only). Management taken an objection qua maintainability of the petition much less the jurisdiction of the controlling authority; the said objections were ``` WP(C) NO. 517 & 7499 OF 2012 -5- ``` accepted and claim petition was rejected. The appeal preferred by the claimant has been allowed by ordering the difference of Rs.2,711/- (Rupees Two thousand seven hundred and eleven only) along with 10% statutory interest provided under the Act with effect from 28.02.2010 to be paid to the within a period of thirty(30) days. 3. Mr.Saji Varghese learned counsel appearing on behalf of the BSNL Management submitted that as per the definition of 'employee' specified in Section 2(e) of the Payment of Gratuity Act, Controlling Authority did not have the jurisdiction to entertain a complaint preferred by the claimant as he was the employee of State/Central Government. The erstwhile employees of the Telecom Department merged with BSNL were governed by different set of Rules and therefore the provisions of Payment of Gratuity would not have been applicable. Period of daily wages from 1970-1987 could ``` WP(C) NO. 517 & 7499 OF 2012 -6- ``` not have been included for calculation of gratuity. All these factors have not been examined in correct perspective as the onus was upon the workman to prove that he was rendering service at par with the regular employees. In support of the contention, relied upon the judgment of honourable Supreme Court in **Rajasthan State Ganganagar S.Mills limited v. State of Rajasthan and Another [(2004) 8 SCC 161]** . 4. On the other hand, learned counsel appearing on behalf of the workman/claimant submitted that the Management and the Appellate Authority did not take into consideration for the purpose of calculating the difference of gratuity the last drawn wages which was Rs.7,645/- (Rupees Seven thousand six hundred and forty five only) instead of Rs.13,154/- (Rupees Thirteen thousand one hundred and fifty four only). Workman did not have any other remedy except to knock the doors of the Controlling Authority established under the Payment ``` WP(C) NO. 517 & 7499 OF 2012 -7- ``` of Gratuity Act. Order is fully justified and sustainable except for modification, taking into consideration the last drawn wages as Rs.13,154/- (Rupees Thirteen thousand one hundred and fifty four only). 5. I have heard learned counsel for the parties and appraised the paper books. 6. In the cited judgment the dispute was with regard to burden of proof viz-a-viz the completion of 240 days of continuous work in a year. By noticing the provisions of Section 25F & 25N read with 25B(2)(a)(ii) of the Industrial Disputes Act, 1947 in paragraph 6 and ## 7, it was held as under: “6. It was the case of the workman that he had worked for more than 240 days in the year concerned. This claim was denied by the appellant. It was for the claimant to lead evidence to show that he had in fact worked up to 240 days in the year preceding his termination. He has filed an affidavit. It is only his own statement which is in his favour and that cannot be regarded as sufficient evidence ``` WP(C) NO. 517 & 7499 OF 2012 -8- ``` for any court or tribunal to come to the conclusion that in fact the claimant had worked for 240 days in a year. These aspects were highlighted in Range Forest Officer v. S.T. Hadimani. No proof of receipt of salary or wages for 240 days or order or record in that regard was produced. Mere non-production of the muster roll for a particular period was not sufficient for the Labour Court to hold that the workman had worked for 240 days as claimed. Even if that period is taken into account with the period as stated in the affidavit filed by the employer, the requirement prima facie does not appear to be fulfilled. The following period of engagement which was accepted was 6 days in July 1991, 15-1/2 days in November 1991, 151/2 days in January 1992, 24 days in February 1992, 20-1/2 days in March 1992, 25 days in April 1992, 25 days in May 1992, 7-1/2 days in June 1992 and 5-1/2 days in July 1992. The Labour Court demanded production of muster roll for the period of 17-6-1991 to 12-11-1991. It included this period for which the muster roll was not produced and came to the conclusion that the workman had worked for more than 240 days without indicating as to the period to which period these 240 days were referable. 7. In our view the Labour Court and the ``` WP(C) NO. 517 & 7499 OF 2012 -9- ``` High Court have failed to consider the statutory requirements in their proper perspective. One of the stands taken by the employer was that the engagement was made keeping in view the temporary needs and it was seasonal in character. No definite finding was recorded by the Labour Court or the High Court in that regard.” 7. On perusal of the above, it has been held that the burden heavily fell upon the workman to prove by producing the receipt of salary or wages that he had completed more than 240 days in a calendar year. The case set up by the management before the appellate authority was that the workman did not place on record any material with regard to the service rendered prior to regularisation of service i.e., from 1970 to 1987. 8. I am of the view that the said contention does not merit acceptance for the reason that the judgment cited above did not take into consideration the provisions of Section 118G of the Indian Evidence Act to draw adverse inference when there was specific contention ``` WP(C) NO. 517 & 7499 OF 2012 ``` **==> picture [30 x 9] intentionally omitted <==** with regard to rendering of adhoc service from 1970 to 1987. The order of regularisation dated 11.06.1987 is a testimony that the workman was in the employment of the Management before passing such order. Management could have produced the muster roll or payment slips or the bank account slips or receipts of the payment to prove that the workman had not completed 240 days. Appellate Tribunal noticed the fact of absence of adverse inference. The difference in payment of gratuity is paltry of Rs.2,711/- (Rupees Two thousand seven hundred and eleven only) along with the interest at the rate of 10% with effect from 28.02.2010. Thus I do not find any merit in the argument of the management with regard to the veracity or authenticity of the order under challenge by exercising the power of review under Article 226 of the constitution of India. First writ petition, W.P.(C)No.517 of 2012 is dismissed. 9. As regards the claim of the workman with regard ``` WP(C) NO. 517 & 7499 OF 2012 ``` **==> picture [30 x 9] intentionally omitted <==** to the loss on wages on the ground that the Tribunal has taken into consideration last drawn wages as Rs.7,645/(Rupees Seven thousand six hundred and forty five only) instead of Rs.13,154/- (Rupees Thirteen thousand one hundred and fifty four only), there is no force in the argument as the workman has failed to place on record any material in support of such assertion. Accordingly Writ Petition (C)No.7499 of 2012 also is dismissed. ``` Sd/- AMIT RAWAL JUDGE ``` ``` vv ``` ``` WP(C) NO. 517 & 7499 OF 2012 ``` ``` -12- ``` ## **`APPENDIX OF W.P.(C) NO. 517/2012`** ## **`PETITIONER’S EXHIBITS`** - `EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 06.10.2010 FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT` - `EXHIBIT P2 TRUE COPY OF THE COUNTER DATED 11.01.2011 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT` - `EXHIBIT P3 TRUE COPY OF THE RE-JOINER DATED 18.01.2011 FILED BY THE THIRD RESPONDENT` - `EXHIBIT P4 TRUE COPY OF THE ALLEGED CERTIFICATE ISSUED BY THE JUNIOR TELECOM OFFICER MARANGATTUPALLY` - `EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 15.03.2011` - `EXHIBIT P6 TRUE COPY OF THE APPEAL FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 25.06.2011` - `EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXHIBIT P6 DATED 25.08.2011` - `EXHIBIT P8 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 14.11.2011` ``` WP(C) NO. 517 & 7499 OF 2012 ``` ``` APPENDIX OF W.P.(C) NO. 7499/2012 ``` ``` -13- ``` ## **`PETITIONER’S EXHIBITS`** ``` EXHIBIT P1THE TRUE COPY OF THE PROCEEDINGS DATED 15.03.2011 OF THE 2ND RESPONDENT ``` ``` EXHIBIT P2THE TRUE COPY OF THE ORDER DATED 14.11.2011 IN G.A.39 (14)/2011-B.1 OF THE 3RD RESPONDENT ```