Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2094 (GUJ)

Transport Manager v. Kanaiyalal Girdharlal Rami

2016-10-03

K.M.THAKER

body2016
JUDGMENT : K.M. THAKER, J. 1. Heard Mr. Mirza, learned advocate for the petitioner Transport Manager and Mr. Pandya, learned advocate for the respondent-claimant. 2. In this petition, the petitioner has challenged order dated 27.2.2012 passed by the Appellate Authority under the Payment of Gratuity Act in Appeal No. 78 of 2011 whereby the Appellate Authority set aside the order passed by the Controlling Authority. The Controlling Authority, vide order dated 25.5.2011, rejected the gratuity claim application filed by present respondent. 3. So far as the factual background is concerned, the petitioner has averred and stated that: “2. The facts of the present case is that the respondent No. 1 herein was employed as a daily wager employee in the year 1979 with the petitioner and the appointment to the respondent No. 1 was given on 14.5.1979 The services of respondent No. 1 came to be terminated on 21.5.1986 for unauthorized absence. The respondent no. 1 then had made an application before the petitioner to reconsider his case on humanitarian grounds and the respondent No. 1 was ordered to be reinstated on 6.9.1986, however, the respondent No. 1 did not report and resume the services instead instituted the proceedings in the civil court, which also came to be dismissed and the appeal challenging the same before this Honorable Court also failed. The respondent No. 1 therefore, resumed his service on 29.11.1990 and therefore, the new date of service would be from 1990 as per the resolution of the transport committee and therefore, there is no question of continuous service before 1990. The services of the respondent No. 1 again came to be terminated on 17.12.1996 on the ground of misappropriation. The said termination came to be challenged by the respondent No. 1 by filing Reference (LCA) No. 1204 of 2000 before the Ld. Labour Court, Ahmedabad, the said reference came to be partly allowed by the Ld. Labour Court vide order dated 15.10.2003, wherein the Labour Court had ordered to reinstate the respondent No. 1 without back-wages. The said order of the Ld. Labour Court, Ahmedabad, the said reference came to be partly allowed by the Ld. Labour Court vide order dated 15.10.2003, wherein the Labour Court had ordered to reinstate the respondent No. 1 without back-wages. The said order of the Ld. Labour Court came to be challenged by the present petitioner before this Honorable Court by filing SCA No. 14555 of 2004, however the said petition also came to be dismissed by this Honorable Court by order dated 2.11.2004 The petitioner then reinstated the respondent No. 1 on service in the year 2005 as since 2000, there were no fresh appointments of daily wager and even the existing staff of daily wagers during the said period was not given any work and as in the year 2005, the new buses on contract were hired by the petitioner and therefore, the respondent No. 1 came to be reinstated in the year 2005. 3. It is submitted that the respondent No. 1 later on attained the age of superannuation in the year 2010 and therefore, his services ended as the respondent No. 1 had attained superannuation. The respondent No. 1 then had preferred an application for gratuity before the Ld. Controlling Authority, Payment of Gratuity Act, Ahmedabad being Gratuity Application No. 451 of 2010, the said application came to be dismissed by the Ld. Controlling Authority vide order dated 25.5.2011 on the ground that as the respondent No. 1 was daily wager and he had not completed 240 days for continuous five years as contemplated in the Act and therefore, he was not entitled for gratuity. 4. The respondent No. 1 challenged the said order before the appellate authority, Payment of Gratuity Act, by filing an appeal being appeal No. 78 of 2011, the Ld. Appellate Authority vide order dated 27.2.2012 was pleased to allow the appeal of the respondent No. 1 and had directed the petitioner herein to pay the amount of Rs.42,618/- as gratuity for 10 years i.e. from June 2000 to May 2010 @ 10% interest.” 4. Appellate Authority vide order dated 27.2.2012 was pleased to allow the appeal of the respondent No. 1 and had directed the petitioner herein to pay the amount of Rs.42,618/- as gratuity for 10 years i.e. from June 2000 to May 2010 @ 10% interest.” 4. Learned advocate for the petitioner relied on the said factual background and submitted that the respondent was engaged by the petitioner in 1979 and his service was terminated, after domestic enquiry, vide order of dismissal from service vide order dated 17.12.1996 He also submitted that the respondent thereafter raised an industrial dispute which was registered as Reference No. 1204 of 2000, wherein the learned Labour Court passed award dated 15.10.2003 whereby the learned Labour Court directed present petitioner to reinstate present respondent on his original post without back-wages. He also submitted that after the said award by the learned Labour Court in Reference No. 1204 of 2000, the respondent was reinstated. He claimed that in 2010 the respondent reached superannuation and therefore, he was superannuated from the service in 2010. Mr. Mirza, learned advocate for the petitioner submitted that in view of the fact that the petitioner was not entitled for payment of gratuity, the petitioner did not pay gratuity and feeling aggrieved by the said decision of the petitioner, the respondent filed gratuity claim application before the Controlling Authority under the Payment of Gratuity Act. He further submitted that the said gratuity claim application was opposed by present petitioner and it was claimed before the Controlling Authority that the claimant had not worked continuously for 5 years inasmuch as he had not worked for 240 days continuously for 5 years and consequently and therefore, he was not entitled for gratuity. Learned advocate for the petitioner submitted that the Controlling Authority examined rival contentions and evidence available on record and accepted the case of present petitioner that the claimant was not entitled for gratuity and having reached to such conclusion, the Controlling Authority rejected the application, however, the Appellate Authority failed to appreciate material available on record and without any justification, the Appellate Authority disturbed the findings recorded by the Controlling Authority and without any justification, the Appellate Authority set aside the order passed by the Controlling Authority. According to the petitioner, the order passed by the Appellate Authority is unjust, erroneous and contrary to evidence on record. Mr. According to the petitioner, the order passed by the Appellate Authority is unjust, erroneous and contrary to evidence on record. Mr. Mirza, learned advocate for the petitioner submitted that the Appellate Authority failed to appreciate that the learned Labour Court had not granted continuity of service and that, therefore, the respondent's service could not have been treated continuous. 5. Per contra, Mr. Pandya, learned advocate for the respondent submitted that the respondent was in service with the petitioner since 1979 and more than 5 years and that during his said tenure he had worked for 240 days in 10 years and that, therefore, the Appellate Authority has awarded gratuity only for 10 years which is neither incorrect nor illegal nor unjustified and that, therefore, the order passed by the Appellate Authority may not be disturbed. He submitted that the Controlling Authority failed to appreciate that the respondent was directed to be reinstated vide order dated 15.10.2003 Whereas the petitioner relied on the attendance record of the respondent for the period from 2005 to 2010 and the Controlling authority erred in not taking into account the fact that the claimant was deemed to be in service from October 2003, even if the claimant's service was not treated as continuous. 6. I have considered rival submissions and I have also considered the impugned order of the Appellate Authority. I have also considered the award passed by the learned Labour Court on which learned advocate for the petitioner placed reliance. 7. The petitioner has challenged the order passed by the Appellate Authority on a singular ground, viz. that the Appellate Authority failed to appreciate that the claimant had not worked continuously for 240 days for 5 years and that, therefore, the Controlling Authority could not have considered the claimant eligible for gratuity. 8. So as to consider and appreciate the petitioner's objection against the Appellate Authority's order, it is appropriate to take into account relevant dates. 9. According to the case of the petitioner Municipal Transport Service, the respondent herein was engaged and appointed as Conductor in 1979. Thereafter, his service was terminated in 1986 on the allegation that the respondent-claimant remained absent without leave. Subsequently, the corporation considered the representation by the respondent and the order terminating his service was withdrawn/cancelled and he was reinstated his service in 1990. 10. Thereafter, his service was terminated in 1986 on the allegation that the respondent-claimant remained absent without leave. Subsequently, the corporation considered the representation by the respondent and the order terminating his service was withdrawn/cancelled and he was reinstated his service in 1990. 10. According to the claim of the petitioner, the respondent's re-engagement in 1990 was fresh appointment. 11. The learned advocate for the petitioner submitted that after the respondent was reengaged in 1990, his service was terminated vide order dated 17.12.1996 for the misconduct which was proved during domestic inquiry. 12. It is not in dispute that after the respondent's service was terminated in December 1996, he raised industrial dispute which was registered as Reference No. 1204 of 2000. The learned Labour Court allowed the said reference vide award dated 15.10.2003 and directed the petitioner Municipal Transport Service to reinstate the respondent on his original post without back-wages. It appears that the petitioner had filed petition against the said award. This Court rejected the petition and thereafter, the petitioner reinstated the respondent, in compliance of the award dated 15.10.2003, in 2005. 13. In light of said dates and events, learned advocate for the petitioner would contend that the respondent did not work for 240 days continuously for 5 years after he was reinstated in 2005 and that therefore, it cannot be considered entitled for gratuity. 14. Now, when the facts of this case are examined, it emerges that:- [a] It is not in dispute that the respondent was appointed in 1979 as conductor and he worked as such with the petitioner. [b] It is true that his service was terminated in 1986 and thereafter, he was re-engaged in 1990. [c] The petitioner claims that when the respondent was reengaged in 1990, it was a fresh appointment and that therefore, the past service from 1979 to 1986 and 1987 to 1990 cannot be taken into account. [d] Even if the said contention of the petitioner is assumed to be correct, then also, facts remain that the respondent was re-engaged in 1990. [e] According to the case of the petitioner, the respondent's service came to be terminated in 1996. [f] Thus, atleast from 1990 to 17.12.1996, the respondent worked with the petitioner continuously for 5 years. [g] The respondent retired from service in 2010. [e] According to the case of the petitioner, the respondent's service came to be terminated in 1996. [f] Thus, atleast from 1990 to 17.12.1996, the respondent worked with the petitioner continuously for 5 years. [g] The respondent retired from service in 2010. [h] It is pertinent that it is not the case of the petitioner that during the said period i.e. from 1990 to 17.12.1996, the respondent had not worked for 240 days and/or that during the said period from 1990 to 17.12.1996, he had not worked continuously for 240 days. In present case most important fact is that the petitioner has maintained convenient silence for the period from 1990 to 1996. It is pertinent that it is not claimed that during said period workman did not work for 240 days and the workman's claim that he worked for 240 days is not denied. [i] The petitioner conveniently ignores and overlooks the said period from 1990 to 17.12.1996 [j] It is also pertinent to note that after the respondent's service was terminated in December 1996, the learned Labour Court directed the petitioner to reinstate the respondent in service on his original post vide award dated 15.10.2003 (k) In view of the said award, the petitioner was under legal obligation to reinstate the respondent immediately after the award dated 15.10.2003 (l) The petitioner had, however, taken out a petition which came to be rejected by this Court. After rejection of the petition, the petitioner engaged the respondent in 2005. [m] The petitioner cannot take disadvantage of his own action of not complying the award from 15.10.2003 to 2005 when the petitioner reinstated the respondent in service in compliance of the award dated 15.10.2003 [n] It is not in dispute that from 2005 until 2010 when the respondent attained age of superannuation, he worked continuously with the petitioner. [o] The petitioner has come out with the case that during 2005 to 2010, the respondent worked for 240 days in 2006, 2007 and 2008 i.e. in 3 years whereas during two years, i.e. in 2009 and 2010, the respondent did not work for 240 days. 15. [o] The petitioner has come out with the case that during 2005 to 2010, the respondent worked for 240 days in 2006, 2007 and 2008 i.e. in 3 years whereas during two years, i.e. in 2009 and 2010, the respondent did not work for 240 days. 15. However, it is pertinent to note that the petitioner very conveniently did not take into account the fact that it did not reinstate the respondent immediately after 15.10.2003 and reinstated the respondent, in compliance of the said award, only on 10.9.2005 During the period from 15.10.2003, the petitioner did not engage the respondent until 10.9.2005 and it cannot take disadvantage of its own unjustified action. The respondent could not work during the period from 15.10.2003 to 10.9.2005 only on account of petitioner's failure to reinstate him and that therefore, the presumption for the said period from 2003 to 2005 should go against the petitioner. 16. Further, even if the last phase of the respondent's service, as claimed by the petitioner, is to be taken into account, then, period from 15.10.2003 to 10.9.2005 cannot be ignored. When the said period is to be taken into account, then, the petitioner's contention and objection would fail. 17. Besides above mentioned facts, one of the most relevant aspects is that in present petition, the petitioner has suddenly come out with a case that the respondent was working as daily wager. 18. It is pertinent that at any earlier point of time the petitioner had not claimed that the respondent was daily wager. 19. However, when the award dated 15.10.2003 passed by the learned Labour Court in reference No. 1204 of 2000 is examined, it comes out that before the learned Labour Court the petitioner had never raised such contention i.e. that the respondent was working on daily wage basis, i.e. the respondent was daily wager. 20. The case which was not raised by the petitioner before the learned Labour Court cannot be allowed to be taken for the first time in present petition. 21. 20. The case which was not raised by the petitioner before the learned Labour Court cannot be allowed to be taken for the first time in present petition. 21. Apart from these details, as mentioned above, the important and relevant aspect in case of present respondent is that according to the petitioner's own case before the learned Labour Court he was not a daily wager and that therefore, in the facts and circumstances of present case, petitioner's objection on the ground of 240 days during the period from 2005 to 2010 is not applicable. 22. From the award passed by the learned Labour Court, it comes out that even according to the petitioner, the respondent was not a daily wager and/or a temporary or casual worker. 23. Under the circumstances, the question of brining the concept of 240 days would not apply to the respondent. 24. Further, even if the said aspect related to attendance of 240 days is to be taken into account, then, the fact that the petitioner had worked continuously from 1990 to 17.12.1996 and in respect of the said period, even the petitioner has not raised dispute that the workman had not worked for 240 days during the said period i.e. from 1990 to 17.12.1996, cannot be overlooked. 25. From above discussion, it emerges that the appellate authority has not committed any error and the said order whereby the appellate authority has directed the petitioner to pay Rs. 42,000/- towards gratuity to the respondent i.e. for the period from 10 years and to pay interest w.e.f 1.5.2010 cannot be faulted. 26. The said direction is not erroneous or contrary. The order passed by the appellate authority is in consonance with the provisions under the Payment of Gratuity Act, 1972 and also in consonance with the award passed by the learned Labour Court. 27. The said order of the appellate authority does not warrant any interference. The petitioner has failed to make out any case against the said award. Therefore, the petition fails and deserves to be rejected. Consequently, the petition is rejected. Rule is discharged.