Research › Search › Judgment

Andhra High Court · body

2013 DIGILAW 992 (AP)

Y. Sandhya @ D. Sandhya v. APSRTC

2013-11-08

DAMA SESHADRI NAIDU

body2013
Judgment : 1. The present Writ Petition is filed by the wife of the deceased employee, who died in harness while working in the respondent Corporation, questioning the inaction of the respondents Corporation in considering her request for arranging gratuity for the services of her husband rendered from 01.07.2002 to 10.10.2005. The petitioner has also sought to make out another grievance on the ground that her case for compassionate appointment under the bread winner scheme of the respondent corporation was also not considered. This non-consideration was assailed as illegal and arbitrary. 2. The facts in brief are that the petitioner’s husband was appointed a Conductor on 01.07.2000, but later while in service, he died on 10.10.2005. Consequently, the petitioner being the wife and legal heir of the deceased employee, made a representation on 13.12.2005 requesting the respondent Corporation to pay all the terminal benefits due to her husband. When no response were forthcoming, the petitioner was constrained to issue a Legal Notice dated 25.08.09, demanding the respondent Corporation to pay a sum of Rs.10575/- towards gratuity and also to provide employment to her on compassionate grounds. In response to the legal notice issued by the Petitioner, the respondent Corporation issued a reply dated 07.09.2009 informing her that, as per the Payment of Gratuity Act, 1972 (“the Act” for brevity), only an employee appointed on regular basis was eligible for gratuity and that there was no provision for compassionate appointment in the Corporation. Dissatisfied with the response given by the respondent Corporation, the petitioner filed the present Writ Petition. 3. The learned counsel for the petitioner has contended that there is no justification on the part of the respondent Corporation on both counts. Insofar as the payment of gratuity is concerned, it is contended by the learned counsel that Section 2-A of the Act deals with ‘Continuous Service’. As per the said provision even when there is a cessation of work, which is not attributable to the employee, it cannot be taken as a disruption of service disentitling the employee to the benefit of reckoning the minimum period of five years of service for claiming the gratuity. 4. As per the said provision even when there is a cessation of work, which is not attributable to the employee, it cannot be taken as a disruption of service disentitling the employee to the benefit of reckoning the minimum period of five years of service for claiming the gratuity. 4. The learned counsel for the petitioner has further contended that as per the proviso to Section 4 of the Act, where an employee could not complete 5 years of service due to medical disability and death, it can be concluded that he has completed five years of service for claiming the gratuity. Since the employee died in the instant case before he could complete 5 years of service, Sub-Section 1 (c) of Section 4 squarely comes into play. In view of the said statutory position, the contentions on the part of the respondent Corporation, submitted the learned counsel, are totally untenable. In sum and substance, the learned counsel for petitioner has urged that the petitioner is entitled to the gratuity in the light of the above legal position. 5. Insofar as the relief of compassionate appointment is concerned, the learned counsel for the petitioner has submitted that initially the case was not considered on the ground that there was a ban, but now there is a policy that governs the situation. As per the Notification PD-04/13, Dt. 02.03.2013, the petitioner is entitled to be provided with compassionate appointment, as was requested in her representation dated 13.12.2005. 6. Per contra, the learned counsel for the respondent Corporation has contended that the deceased employee was engaged as a casual driver on daily wages with effect from 10.04.2000, but he did not complete the requisite service in the Corporation by the date of his death to make himself eligible for payment of gratuity. It is pointed out that the deceased employee worked for 82 days in 2000; 95 days in 2001; 2 years 4 months 18 days between 11.03.2002 to 26.07.2004; and finally 1 year 2 months 13 days between 13.07.2004 and 10.10.2005. Thus, taking into account all the days he worked in the Corporation before his death, still it could not be said that the deceased employee completed five years of service, which is a pre-condition under the Act to consider the case of the petitioner is husband for gratuity. 7. Thus, taking into account all the days he worked in the Corporation before his death, still it could not be said that the deceased employee completed five years of service, which is a pre-condition under the Act to consider the case of the petitioner is husband for gratuity. 7. On the issue of compassionate appointment, the learned Standing Counsel has stated that the petitioner died on 10.10.2005, when there was a ban. Though now there is a policy in place with regard to compassionate appointment, the case of the petitioner could not, however, be considered at this length of time. 8. Heard learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the entire record. 9. Evidently, the grievance of the petitioner is two fold: since her husband died in harness, she should have been paid gratuity, as was demanded by her through her numerous representations; and secondly, her case for compassionate appointment should also have been considered. To appreciate the statutory scheme, it is apposite to extract Section 2-A of the Act, to the extent relevant: “2-A. 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 orders, rules or 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— ... (3) where 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 for such period if he has actually worked for not less than seventy-five per cent of the number of days on which the establishment was in operation during such period.].” 10. The above provision makes it abundantly clear that while reckoning the uninterrupted service, if there is an interruption 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 orders, etc., lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, shall be taken into account to complete the period of requisite period required for the purpose of entitlement. 11. It is further relevant to examine, to the extent relevant, section 4 of the Act, which is as follows: “4. Payment of gratuity.—(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,— (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation.—For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. ... (emphasis added) 12. ... (emphasis added) 12. Even prior to Amendment by Act 15 of 2010, Section 4 had no change insofar as the eventuality of death is concerned in reckoning the period of five years. 13. A perusal of the above provision makes it clear that while for computing the five-year minimum period of continuous service required to be rendered for the entitlement of gratuity, there are certain contingencies provided for therein so as to see that disruption in service beyond the control of the employee should not work to his prejudice. In fact, if a person could not complete five years of service owing to his own death or disablement, still gratuity shall be paid as if the said employee had completed 5 years of uninterrupted service. In the light of the legal position referred to above, if the present case is examined, as was indicated in the Counter affidavit filed by the respondent Corporation, the deceased employee could not complete five years of service only because of his death, but not otherwise. It is not the case of the respondent Corporation that all along when he was in service the deceased employee absented himself on his own. On the contrary, it was a case of providing artificial brakes to the service of the workman when he was alive. 14. Given the beneficial nature of the legislation, in my considered opinion, the proviso to Section 4 of the Act squarely governs the case. Thus the petitioner, being the dependant and Class-I heir of the deceased employee, is entitled to gratuity, treating as if the deceased employee had served the Corporation for five continuous years. Needless to say that while computing the quantum of gratuity to be paid to the petitioner, if she is entitled to any payment of interest in terms of provisions of the Act, the same shall be considered. Accordingly, the issue is answered. 15. Concerning the question of providing compassionate appointment under the bread winner scheme, it is brought to the notice of this Court that the respondent Corporation has issued Notification No.PD-04/13, Dt. 02.03.2013 spelling out its policy to provide employment to the dependents of the employees who died in harness between 01.01.1998 and 31.12.2010. Without any contradiction it was brought on record that the husband of the petitioner died on 10.10.2005. 02.03.2013 spelling out its policy to provide employment to the dependents of the employees who died in harness between 01.01.1998 and 31.12.2010. Without any contradiction it was brought on record that the husband of the petitioner died on 10.10.2005. Thus, it seems that the case of the petitioner falls within the zone of consideration of the said Notification. 16. Accordingly, the respondent Corporation is directed to consider the case of the petitioner in terms of Notification dated 02.03.2013 and pass appropriate orders thereon, as expeditiously as possible, preferably within a period of three(03) months. 17. With the above observation, the Writ Petition is disposed of. No order as to costs. The miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.