JUDGMENT D.K. Seth, J.
1. The award dated 28.11.1996 passed in case No. A/94 by the Controlling Authority under the Payment of Gratuity Act. 1972, allowing the gratuity to the workman and the order dated 29.6.1998 passed by the appellate authority under the Payment of Gratuity Act. 1972. In Appeal No. 12 of 1997 are under challenge in this writ petition.
2. Mr. Shiv Nath Singh, learned counsel for the petitioner contends that the workman having not been worked for continuously for five years, he is not eligible for gratuity under Section 4 of the said Act. According to him the workman was a casual employee and he was never worked for 240 days in a year.
3. This point was urged before the controlling authority as well as the appellate authority. Both the authorities had disbelieved the case of the petitioner and had concurrently come to a finding that the workman was employed for long period of 20 years and that he has satisfied the test of continuous five years service for the purpose of being eligible for payment of gratuity under Section 4 of the said Act.
4. The petitioner had relied on a document showing the number of days the workman had performed his duty which is Annexure-2 to the writ petition. It shows that the workman had right from 1972 continuously worked till 1992 and admittedly from the number of days worked mentioned therein shows that in some years the workman had worked for less than 240 days in an year but in some years he had worked for more than 240 days viz., in 1982 he had worked for 260 days, in 1984 for 259 days, in 1986 for 271 days and in 1989 he had worked for 304 days : and in 1981 he had worked for 234 days, in 1983 for 218 days : in 1986 for 225 days : in 1989 for 238 days and in 1990 for 222 days. Thus, it appears in some years he had worked for more than 240 days and in some years it was less by few days. Both the authorities had come to a conclusion that the number of days shown in the said list did not include the days on which the workman was refused work or the days when the workman was on leave. This conclusion was based on the cross-examination of the employer's representative who had admitted that this list did not include the list of days when the workman was on leave. It has also based its finding on the basis that the employer had never contended that as to what was the rate of wages that was paid to the workman as daily wage. On the other hand, the workman claimed that he used to receive Rs. 2,433 per month. This has not been seriously disputed as has been found by the Controlling Authority. If a person is paid on monthly basis, it is not possible to hold that he was employed on dally wage basis. If a person is employed on monthly basis, then the normal presumption is that he is also entitled to get leave as that of regular employee. Therefore, the period of leave should have been included as has been provided in the Payment of Gratuity Act.
5. Then again the expression continuous service has been defined in Section 2(a) of the said Act which refers continuous five years of being 240 days on service complete in each year continuously for five years. In the present case, the workman had worked for almost 20 years and he had in his credit for 240 days in some period Intermittently. But there might be artificial break or the period of leave may have been overlooked. In the absence of such material. It is not possible to hold that the controlling authority or the appellate authority had come to a wrong conclusion or that the conclusion is perverse based on no material. Since this question has been raised by the employer, it was the employer to prove its case. The employer has not discharged its burden of proving its case as has been made out. On the other hand, the record produced by the employer shows that in some years the workman had worked for more than 240 days. But other records having not been disclosed with regard to the artificial break and the number of leave granted to the workman, this matter comes back to a question of disputed question of fact which cannot be gone into sitting in writ jurisdiction.
6. After having found there is no perversity, in the order, it is not possible to interfere with the said orders. Then again proviso to Section 4 of the said Act provides that where the termination is by reason of death, the five years continuous service as defined in Section 2(a) of the said Act would not be insisted. The contention of learned counsel for the petitioner does not appear to be sound and therefore cannot be sustained. In view of such provision it appears that despite having not fulfilled the criteria of 6 years, assuming but not admitting, the person is eligible for payment of gratuity, if the service is terminated due to death. Therefore, I am not inclined to interfere with the impugned orders.
7. In the result, the writ petition fails and is accordingly dismissed.
8. However, there will be no order as to cost.