IN THE HIGH COURT OF JHARKHAND AT RANCHI

Transcription

1 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 398 of 2012 (M/s MMTC (Mica Division) Vs. Sri Sajjan Kumar Bhudolia & Ors) L.P.A. No. 368 of 2012 (M/s MMTC (Mica Division) Vs. Boniface Murmu & Ors) L.P.A. No. 397 of 2012 (M/s MMTC (Mica Division) Vs. Ram Janam Ram & Ors) L.P.A. No. 399 of 2012 (M/s MMTC (Mica Division) Vs. Mihir Kumar Chatterjee & Ors) L.P.A. No. 400 of 2012 (M/s MMTC (Mica Division) Vs. Sri Birendra Prasad & Ors) L.P.A. No. 401 of 2012 (M/s MMTC (Mica Division) Vs. Arjun Prasad Mishra & Ors) L.P.A. No. 402 of 2012 (M/s MMTC (Mica Division) Vs. Sri Damodar Mishra & Ors) L.P.A. No. 403 of 2012 (M/s MMTC (Mica Division) Vs. Sri Bhagwan Das & Ors) L.P.A. No. 434 of 2012 (M/s MMTC (Mica Division) Vs. Nirpesh Kanti Majumdar & Ors) CORAM: HON'BLE THE CHIEF JUSTICE. HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Appellant : M/s.Raj Nandan Sahay, Yashvardhan For the Respondent-UOI : Mr.Prabhash Kumar ---- CAV on 9 th April, 2014 Pronounced on 22 nd April, 2014 R.Banumathi,C.J These LPAs are preferred against the common order dated passed by the learned Single Judge in CWJC No.2040/2001 and analogous cases confirming the order passed by the controlling authority and appellate authority, directing the payment of gratuity to 1 st respondent(s), for the period when they served as casual workers on daily rated basis in M/s.MMTC (Mica Division).

2 2 2. The 1 st respondent(s) in all cases were originally appointed as Daily Rated Workers and their services were regularized subsequently in MMTC (Mica Trading Corporation), a subsidiary of the appellant-corporation. The 1 st respondent(s) retired under the Voluntary Retirement Scheme and all of them were paid gratuity with effect from the date of regularization till the date of their retirement. For proper appreciation of the facts and the contention of the parties, we may refer to the facts of LPA No.398/2012 (CWJC No.2040/2001) - the case of Sri Sajjan Kumar Bhudolia. The 1 st respondent (Sri Sajjan Kumar Bhudolia) was appointed as Daily Rated Worker on and his service was regularized with effect from and he retired on under the Voluntary Retirement Scheme. He was paid gratuity with effect from the date of regularization till the date of voluntary retirement, i.e. from to The details of all the 1 st respondent/employees, the date of their appointment as Daily Rated Worker and their date of regular appointment reads as under:- L.P.A. No. Name of the workman Date of daily rated appointment Date of regular appointment 368/2012 Sri Boniface Murmu /2012 Sri Ram Janam Ram /2012 Sri Sajjan Kumar Bhudolia /2012 Sri Mihir Kumar Chatterjee /2012 Sri Birendra Prasad /2012 Sri Arjun Prasad Mishra /2012 Sri Damodar Mishra /2012 Sri Bhagwan Das /2012 Sri Nripesh Kanti Mazumdar

3 3 3. Sri Sajjan Kumar Bhudolia and other workers filed application before the 3 rd respondent, i.e. the Assistant Labour Commissioner, (Central) 1, Dhanbad, in Form I seeking payment of gratuity for the period during which they worked as daily rated workers. The appellant/employer filed written statement contending that the employees are not entitled to payment of gratuity for the period during which they worked as daily rated workers. 4. The Assistant Labour Commissioner-Controlling authority held that the 1 st respondent is entitled to payment of gratuity for the period during which he worked as Daily Rated Worker. Pointing out that there was opening balance in CPF account of the employee and that the contribution made by the Corporation shows that the 1 st respondent (Sri Sajjan Kumar Bhudolia) is in continuous service with the appellant- Corporation, the controlling authority held that when there is contribution made by the appellant-corporation towards the CPF account of the 1 st respondent (Sri Sajjan Kumar Bhudolia), the appellant-corporation cannot deny the continuous service of the 1 st respondent. On those findings, the controlling authority held that the 1 st respondent(s) was in continuous service as per the provisions of the Act with effect from the date on which they were appointed as Daily Rated Workers and entitled to receive the gratuity payable from the date of their daily rated appointment. 5. Being aggrieved by the order of the controlling authority, the appellant-corporation preferred an appeal before the Appellate Authority. The Appellate Authority held that on the date of regular appointment, the workers were already on the roll of the Corporation though on daily rated basis as per

4 4 their appointment letters and that in the account of CPF, it is clearly mentioned about the regular contribution deducted every month, which indicates that the respondent-workmen were in continuous employment without any break. The appellate authority held that in view of the provisions contained in Section 4 read with Section 2A, the controlling authority was justified in awarding gratuity for those period during which the employee worked as Daily Rated Worker and the Appellate Authority confirmed the order of the controlling authority directing payment of gratuity to the 1 st respondent(s). 6. Being aggrieved by the concurrent findings of the controlling authority and appellate authority directing for payment of additional gratuity for the period of employment between the daily rated appointment and regular appointment, the appellant-corporation has filed the writ petitions. Learned Single Judge held that prior to the date of regularization, the workers were working in the Corporation and if the workers have not worked regularly for 240 days in a particular calendar year, the appellant-corporation could have placed the attendance register before the authority but the appellant- Corporation has not produced the attendance register. Referring to the findings of the controlling authority and the appellate authority, the learned Single Judge held that both the authorities have recorded concurrent findings that the workers were in employment of the Corporation as Daily Rated Workers and rightly ordered for payment of gratuity for the period during which they worked as Daily Rated Workers and the learned Single Judge dismissed the writ petitions. Being aggrieved by the dismissal of the writ petitions, the appellant-corporation has preferred these LPAs.

5 5 7. Learned counsel for the appellant, Mr.Rajnandan Sahay, has submitted that the gratuity is payable only for the period of service rendered by the workers being on permanent roll of the employer and the employee cannot claim gratuity for the period of service of purely casual and daily rated nature. It was further submitted that the authorities below have not recorded finding that the 1 st respondent(s) have worked for 240 days in a calendar year prior to regularization and the orders passed by the authorities are against the mandate of Section 2- A read with Section 4 of the Payment of Gratuity Act, which makes the order wholly illegal and without jurisdiction. Learned counsel further submitted that the status of the 1 st respondent(s) as casual worker was different than that of regular employees and they were not entitled to get gratuity on the basis of last paid salary as regular employee and the order of the learned Single Judge is liable to be set aside. 8. We have heard Mr.Prabhas Kumar, learned counsel appearing for the Union of India. 9. On consideration of the submissions and perusal of the materials on record, the following points arise for determination :- (i) whether 1 st respondent(s) as Daily Rated Worker is entitled to gratuity for the period during which he worked as Daily Rated Worker, and (ii) whether the concurrent findings of the controlling authority and appellate authority that the 1 st respondent(s) was in continuous service prior to their regularization suffers from any serious error warranting interference.

6 6 10. Learned counsel for the appellant contended that the authorities failed to consider the provisions under Section 2-A of the Payment of Gratuity Act and further failed to consider as to whether the employee was in continuous service, i.e. has actually worked for 240 days in the said period of one year and non-consideration of the same makes the order wholly illegal and without jurisdiction. Learned counsel submitted that merely because there was opening balance and contribution made by the employer in the CPF account of the employee, the authorities erred in presuming that the employee was in continuous service. Learned counsel further submitted that the Payment of Gratuity Act is a self-contained Act and the provisions of some other Act like Employees Provident Fund and Miscellaneous Provisions Act, cannot be applied to the Payment of Gratuity Act, since Section 14 of the Payment of Gratuity Act provides that it will have overriding effect over other enactments. It was then contended that to claim payment of gratuity, the employee should have worked 240 days and without recording any finding that 1 st respondent(s)-employee worked for 240 days, merely on the basis of the CPF contribution made to the Provident Fund Account of the employees, the authorities presumed that they had worked for 240 days. Placing reliance upon the decision in the case of Manohar Joshi v. State of Maharashtra & Ors. ( SCC 619) (para 69), it was contended that if the statute provides for doing a particular act in a specified manner, it has got to be done in that manner alone and not in any other manner.

7 7 11. As per Section 2(c), continuous service means continuous service as defined in Section 2-A. Under sub-clause (1) of section 2-A of the Act, a person shall be said to be in continuous service if he has been in uninterrupted service. The gist of sub-clause (1) is that if he was an employee the interruptions created by sickness, accident, leave, absence from duty without leave, lay-off, strike or lock-out or cessation of work not due to any fault of the employee are not to be treated as creating any interruptions. Sub-clause(2) deals with a different situation where the employment is not continuous as specified in section 2-A(1), but there are interruptions. According to Section 2-A(2)(a)(ii), if an employee renders continuous service for a period of 240 days in a year he will be deemed to have continued in service for one year. This deeming provision contained in Section 2-A must be applied interpreting the period of five years mentioned in Section 4(1). 12. A bare perusal of Section 2-A would clearly show that larger meaning has been assigned to the words, continuous service. Since Payment of Gratuity Act is a Welfare Legislation, the words, continuous service has to be interpreted liberally. Section 4 of the Act prescribes the statutory liability of the employer who pays gratuity and corresponding right of the employee to receive it whenever it becomes payable. Section 4 is the charging section. Section 4 provides that gratuity shall be payable to an employee on the termination of his employment after he has rendered a continuous service for not less than five years, and the termination of employment is either by superannuation,

8 8 retirement or resignation or his death or disablement due to accident or disease. Section 4 requires that the employee must have put in a continuous service of five years for entitlement of gratuity under the Act and the term continuous service has been defined in Section 2-A of the Act. 13. A perusal of the provisions of Sections 2-A and Section 4 of the Payment of Gratuity Act would clearly show that the Act does not make any difference as to whether the employee is paid daily wages or weekly wages or monthly wages. The only condition is that he should be employed by the employers on wages in an establishment covered by the Payment of Gratuity Act and should be in continuous service as required under Section 2-A of the Act. 14. Contending that the burden is on the workman to show that he has actually worked for 240 days in a year, learned counsel for the appellant relied upon the decision rendered in the case of Sita Ram & Ors. v. Moti Lal Nehru Farmers Training Institute (AIR 2008 SC 1955). In Sita Ram & Ors. (AIR 2008 SC 1955), Hon ble Supreme Court in para 12 held as under:- 12.Although at one point of time, the burden of proof used to be placed on the employer, in view of a catena of recent decisions, it must be held that the burden of proof is on the workman to show that he has completed 240 days in a year. 15. Of course, the initial burden is upon the employee to prove that he has worked for 240 days. Let us consider the case of the 1 st respondent. In the case of 1 st respondent (Sri Sajjan Kumar Bhudolia), he was regularized on But an amount of Rs (Rupees seventeen and paise fifty only) was the opening

9 9 balance for the year as on and an amount of Rs (Rupees seventeen and paise fifty only) has been contributed by the appellant-corporation in the CPF Account No.GRD-16 of the 1 st respondent (Sri Sajjan Kumar Bhudolia) as on and for the year , an amount of Rs.429/- was the balance as on and an amount of Rs.429/- has been contributed by the appellant-corporation in the CPF Account No.GRD-16 of the 1 st respondent (Sri Sajjan Kumar Bhudolia) as on Admittedly prior to their regularization, the 1 st respondent(s) were employed as Daily Rated Workers and they were in continuous service. As pointed out by the controlling authority for the period from , there was opening balance of Rs (Rupees seventeen and paise fifty only) in the CPF Account No.GRD-16 of the 1 st respondent (Sri Sajjan Kumar Bhudolia) and same amount was also contributed by the appellant-corporation in the CPF Account No.GRD-16 of the 1 st respondent (Sri Sajjan Kumar Bhudolia). The fact that there was opening balance in the CPF Accounts of the 1 st respondent(s) even prior to their regularization, clearly shows that the workers have been in continuous service with the appellant-corporation and the appellant-corporation cannot deny the same when there is contribution made by the appellant-corporation towards the CPF contribution of the workers. If the 1 st respondent(s) were employed only from the date of regularization, the question of paying contribution by the appellant-corporation towards the CPF prior to the date of regularization does not arise. The fact that there was CPF contribution by the appellant-corporation clearly shows that

10 10 the 1 st respondent(s) were in continuous service of the appellant-corporation. 17. In the light of the materials relied upon by the workmen, it was for the appellant-corporation to adduce evidence to substantiate its contention that the 1 st respondent(s) has not worked for 240 days and was not in continuous service of the appellant-corporation as per the provisions of the Act. The appellant-corporation has not pleaded that the 1 st respondent(s) had not worked for the specified number of days and all that has been said is that the employment of the 1 st respondent(s) was on daily wage and he was not entitled to gratuity. The appellant-corporation was statutorily required to maintain some documents but the appellant-corporation has not produced any document to show that 1 st respondent has not worked for 240 days and was not in continuous service of the appellant-corporation. In the absence of any rebuttal evidence by the appellant-corporation, based on the opening balance in the CPF Account of the employees, the controlling authority and the appellate authority rightly concluded that the employees were in continuous service of the appellant-corporation. 18. Learned counsel for the appellant contended that only if the employees proved that actually they have worked for 240 days, they can claim gratuity and that the employees have not adduced any evidence to show that they have worked for 240 days in the calendar year. In support of his contention, learned counsel placed reliance on the decision rendered in the case of Ranchi Legal Supports Centre and Ano. v.

11 11 Chairman-cum-Managing Director, Central Coalfields Limited and Ors. (1987 PLJR 1056). Referring to the judgment of Hon ble Supreme Court in the case of Lalappa Lingappa v. Laxmi Vishnu Textiles Mills (1981 (1) LLJ 308), in para 7 and 8 of the judgment, learned Single Judge of the Patna High Court held as under:- 7. In the case of Lalappa Lingappa (1981 (1) LLJ 308) the Supreme Court having considered the scheme of the Act, particularly the definition of "continuous service" held that the expression "actually employed" in explanation (1) of section 2(c) of the Act must in the context in which it appears, means "actually worked". Even though two different expressions were used by the Legislature, for referring to the context and purpose with which they had been enacted, they were synonymous. In substance, "actually employed" really mean "actually worked". The crucial test laid down by the Supreme Court in the aforesaid decision was whether the employee concerned had actually worked and had rendered continuous service. The Court observed: In construing a social welfare legislation the Court should adopt a beneficient rule of construction, if a section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the person in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that case, the words of the statute speak the intention of the Legislature. When the language is explicit its consequence are for the Legislature and not for the Courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction were the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the Courts must not yield to the temptation of seeking ambiguity when there is none. Craies on Statutes, 6th Edn. pp In dealing with interpretation of subsection (1) of S. 4, we must keep in view the scheme of the Act. Sub-section (1) of S. 4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis there is not on "continuity of employment" but on rendering "continuous service". The Legislature inserted the two explanations in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfilment of the conditions laid down therein. By the use of the legal fiction in these explanations, an employee is deemed to be in "continuous service" for purposes of sub section (1) S. 4 of the Act. The Legislature never intended that the expression "actually employed in Explanation 1 and the expression "actually worked" in Explanation II should have two different meanings because it wanted to extend the benefits to an employee who "worked" for a particular number of days in a year in either case. In a case falling under Explanation I an employee is deemed to be in continuous service if he has been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any other case except when he is employed in a seasonal establishment. In a case falling

12 12 under Explanation II, an employee of a seasonal establishment is deemed to be in continuous service if he has actually worked for not less than 75 per cent of the number of days on which the establishment was in operation during the year. 8. On this reasoning, the Supreme Court held that even the permanent employees, who had remained absent without leave, and had actually worked for less than 240 days in a year, were not entitled to gratuity. On the other hand, in the case of Badli employees who were employed only in case of absence of permanent employees, the gratuity was not found payable to them since they did not fulfill the conditions requiring that they should have worked for not less then 240 days in a year to qualify for gratuity. The test, therefore, is not whether the employee is described as permanent or temporary or whether he is paid daily or monthly wages. The test is whether he has actually worked for the number of days in a year as provided under the Act. If he was actually employed and had actually worked for not less than the specified number of days in a year, he will be entitled to payment of gratuity under the Act. 19. Placing reliance upon the judgment, learned counsel contended that the test is whether the 1 st respondent(s)- employee actually worked the number of days in a year as provided under the Act and since the 1 st respondent(s) has not discharged the burden cast upon them in proving that they have actually worked for 240 days and while so, merely on the basis of the opening balance available in the CPF account of 1 st respondent(s), the authorities erred in drawing presumption that the employee had worked for 240 days and was in continuous service within the meaning of Section 2-A. 20. In the judgment relied upon by the appellant in Ranchi Legal Supports Centre and Ano. (1987 PLJR 1056), learned Single Judge clearly negatived the contention of the appellant-management and held that the daily rated workman was entitled to gratuity. In fact, the judgment relied upon by the appellant-corporation in Ranchi Legal Supports Centre and Ano. (1987 PLJR 1056) only supports the case of the 1 st respondent(s).

13 Considering the facts of the case and after detailed enquiry, the controlling authority as well as the appellate authority have arrived at the concurrent conclusion that the employees concerned are having continuous service as required under the Act and they are entitled to payment of gratuity in terms of the Act. 22. Learned counsel for the appellant then contended that the 1 st respondent(s) virtually retired from service in 1993 and the application in Form I was filed in 1997, that is, four years after voluntary retirement and without considering the delay in filing the application, the authorities erred in condoning the delay and also awarding interest. As regards the contention of delay, the controlling authority as well as appellate authority held that the rightful claim of the gratuity cannot be defeated on the ground of technicality such as limitation. The controlling authority was satisfied on sufficient cause cited by the 1 st respondent(s)-employee(s) for filing application after expiry of specified period of ninety days and after condoning delay, the controlling authority and appellate authority ordered for payment of interest. 23. Section 7 of the Act enables a person eligible for gratuity to claim the same from his employer by making an application in writing in Form I. Such an application is required to be made by the employee within thirty days from the date the gratuity became payable. As per Section 7(3) of the Act, the employer shall arrange the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable. A perusal of sub-section (2) of Section 7

14 14 reveals, that it is the responsibility of the employer, to determine the amount of gratuity payable to a retiring employee. Sub-section (3) of Section 7 enjoins a further responsibility on the employer, to disburse the amount of gratuity payable to an employee, within 30 days from the date it becomes payable. Since the appellant-corporation has not paid the gratuity, the controlling authority and the appellate authority rightly ordered for payment of gratuity along with statutory interest. Having regard to the concurrent findings, the learned Single Judge rightly dismissed the writ petition and we find no merit in these appeals and same are liable to be dismissed. In the result, all the appeals are dismissed. (R. Banumathi, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 22 nd April, 2014 AFR Dey/