1. Heard learned advocate appearing for the parties.
2. The petitioner, employer has approached this Court under Article 226 as well as 227 of the Constitution of India, challenging the order dated 25.02.2004 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 on the ground that the Appellate Authority did not appreciate the fact that the workman was not entitled to have the entire period of service to be considered eligible for gratuity on account of his absence which was not duly approved.
3. The facts in short leading to filing this petition deserve to be set out as under;
4. The petitioner, employer is a registered Company registered under the Companies Act, 1913. The petitioner engaged the respondent workman from 25.11.1972 to 04.02.2000. On completion of this period, the petitioner was paid gratuity amount of Rs. 30524/- and this amount was treated to be an amount not meeting with the requirement of law and, therefore, the workman concerned was constrained to file application before the Controlling Authority inter alia contending that in light of the provision of the Payment of Gratuity Act, 1972 and especially the provision of Section 2A containing definition of continuous service, the employer was not justified in treating the service of the period for which there was no order declaring this continuation of service on account of absence or unauthorized absence on the part of the workman concerned. The Controlling Authority did not accept this contention and hence rejected the application on 11.04.2001. Being aggrieved and dissatisfied with this order the workman concerned preferred appeal before the Appellate Authority under the Payment of Gratuity Act, 1972. The Appellate Authority relying upon the provision of the Payment of Gratuity Act, 1972 and especially Section 2A of the Act came to the conclusion that unless and until there is a specific order qua discontinuation or break in service for unauthorized absent the said period cannot be excluded for considering the case of the employee for receiving payment of gratuity under the provision of the Act. The Appellate Authority, therefore, accepted the contention of the respondent workman and passed an order on 25.02.2004 directing further payment of Rs.66,400/- . Being aggrieved and dissatisfied with this Appellate Authority's order, the present petition is preferred under Article 226 as well as 227 of the Constitution of India. Initially there was also a challenge to the vires of provision of Section 2A, but as Shri Chauhan, learned advocate for the petitioner has very fairly submitted that the challenge to vires would not survive, as the Division Bench of this Court has also upheld the vires of provision of Section 2A of Payment of Gratuity Act, in case of PBM Ploytex Ltd vs. Union of India & Ors.
5. Learned advocate Shri Chauhan for the petitioner contended that the absence of workman, even if it is not termed to be break in service, should not have entitled the workman for receiving gratuity for the period on which he actually did not perform his duties. The concept of payment of gratuity is in respect of payment to the employees on account of his service rendered and if that concept is borne in mind, then period on which there was an unauthorized absence on the part of the workman, the same could not have been considered. The Appellate Authority has thus erred in coming to the conclusion that in light of the provision of Section 2A of the Act, the absent could be considered, as part of continuous service, unless and until it is declared to be break in service, is unfortunate and required to be dealt with.
6. Learned advocate for the respondent workman invited this Court's attention to the letter and spirit of the provision of Section 2A of the Act and contended that when the factum of employment is not questioned, then the absence on the part of the workman, even if it is unauthorized, the same period of absence cannot be considered for exclusion so far as the payment of gratuity is concerned. The plain reading of the provision of Section 2A would sufficiently convince this Court not to interfere with the order of Appellate Authority passed in favour of the workman and the petition deserve to be dismissed.
7. This Court has heard learned advocate appearing for the parties. The provision of Section 2A deserve to be set out as under;
[2A. 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-
(a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than-
(i) one hundred and ninety days, in the case of any employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case.
(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than-
(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and
(ii) one hundred and twenty days, in any other case.
[Explanation.- For the purposes of clause (2) the number of days on which an employee has actually worked under an employer shall include the days on which-
(i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment;
(ii) he has been on leave with full wages, earned in the previous year;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.]
(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.]
8. Thus, if one looks at the provision, then one would appreciate that Section 2A clearly takes care of the situation where the employment, as such, is not contended to have come to an end which is in the present case and there is an absence even if the said absence is not authorized or approved or condoned. If the order treating the same absence to be a break in service is not expressly based, then the factum of employment is to be taken to be continuously existing and, therefore, the relationship of employer and employee exists even during the period when there is an absence which is unauthorized absence, therefore, on that basis of the premise the provision of Section 2A is to be read and if one read that way, then it would be absolutely clear that the order of the Appellate Authority cannot be said to be perverse in any manner so as to call for any interference under Article 226 as well as 227 of the Constitution of India. The factum of employment from 25.11.1972 to 04.02.2000 in case of the present workman is not disputed and, therefore, even if, workman has not worked for some days on account of his absent, which is not been condoned so far as payment of gratuity is concerned. The employment is to be taken to be continuous, as there exists no order expressly declaring that absence to be break in service. Therefore, in my view, the contention with regard to the break in service disentitling the employee from receiving the gratuity amount for the period of absence is of no avail and the order impugned of the Appellate Authority cannot be said to be in any way perverse so as to call for any interference. The petition deserves rejection and is accordingly rejected. Rule is discharged. No costs.
Pankaj (S.R.BRAHMBHATT, J.)