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Madras High CourtWP(MD)/705/2020dismissed

The Senior Regional Manager, v. The Appellate Authority/Addl.Commnr Of Labour

2022-01-03Honourable Mr Justice B.Pugalendhi5 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI and W.M.P.(MD)No.515 of 2020 The Senior Regional Manager, Tamil Nadu Civil Supplies Corporation, Thanjavur.

... Petitioner versus

1. The Appellate Authority/Additional Commissioner of Labour, Tiruchirappalli.

2. The Controlling Authority/Assistant Commissioner of Labour, Tiruchirappalli.

3. G.Thirunavukarasu ... Respondents Writ Petition filed under Article 226 of the Constitution of India, seeking for the issuance of Writ of Certiorari, to call for the records relating to the impugned order of the first respondent in P.G.Appeal No.28 of 2018 dated 29.10.2018 wherein dismissed the appeal and confirming the order of the 2nd respondent in P.G.No.37/2017 dated 01.11.2017 and quash the same. For Petitioner: Mr.R.Saravanan for Mr.P.Seetharaman For R1 and R2 : Mr.V.Nirmal Kumar Government Avocate For R3 : Mr.S.Arunachalam

ORDER

This writ petition is filed as against the order of the Appellate authority/Additional Commissioner of Labour, Tiruchirappalli, passed in P.G.A.No.28 of 2018 dated 29.10.2018.

2. The third respondent G.Thirunavukarasu joined the service as Assistant on 09.02.1986 at the District Procurement Centre and after rendering 29 years of service, he retired from service on 1/5

30.04.2015. After retirement, he was not paid any gratuity amount. Therefore, he filed a petition before the Assistant Commissioner of Labour, Tiruchirappalli, in P.G.No.37 of 2017, claiming gratuity amount of Rs.2,56,967/- along with 10% interest. According to the petitioner Corporation, since the third respondent had caused loss to the Corporation to the tune of Rs.1,37,484/- during his service period, he is entitled only for gratuity amount. The Assistant Commissioner of Labour, Tiruchirappali, vide order dated 01.11.2017, allowed the petition by fixing the gratuity amount at Rs.2,56,967/- and directed the petitioner Corporation to pay the said amount along with 10% interest to the third respondent. Aggrieved over the same, the petitioner Corporation preferred an appeal in P.G.A.No.

28 of 2018 before the Appellate Authority, namely, the Additional Commissioner of Labour, Tiruchirappalli. After hearing both sides, the Appellate Authority, vide order dated 29.10.2018, dismissed the appeal by confirming the order dated 01.11.2017 passed by the Assistant Commissioner of Labour, in P.G.No.37 of 2017. Challenging the order of dismissal dated 29.10.2018, the petitioner Corporation has filed the present writ petition.

3. The learned counsel for the petitioner submits that as per Section 2A(3) of the Payment of Gratuity Act, it is necessary that the employee should work for not less than 75 percent of the number of days on which the establishment was in operation during such period. But, the third respondent had not worked continuously for more than 75 percent of number of working days in every season and therefore, he is not entitled for the gratuity amount as claimed in the gratuity petition. He has also relied upon the Circular No.77 of 2007 dated 26.11.2007 issued by the Tamil Nadu Civil Supplies Corporation Limited, Chennai.

4. Per contra, the learned counsel appearing for the third respondent submits that the third respondent joined in the service on 09.02.1986 and after rendering 29 years of continuous service, he retired from service on 30.04.2015. Since he was in continuous service, the third respondent is entitled for the gratuity amount as claimed by him in the gratuity petition.

5. Heard the learned counsel appearing on either side and also perused the materials available on record.

6. The third respondent joined as Assistant on 09.02.1986 at the District Procurement Centre and after rendering 29 years of service, he retired from service on 30.04.2015. After retirement, he was not paid any gratuity amount. Therefore, he filed a petition before the Assistant Commissioner of Labour, Tiruchirappalli, in P.G.No.37 of 2017, claiming gratuity of Rs.2,56,967/- along with 10% interest. The Assistant Commissioner of Labour, Tiruchirappali, vide order dated 01.11.2017, allowed the petition by fixing the gratuity amount at Rs.2,56,967/- and directed the petitioner 2/5

Corporation to pay the said amount along with 10% interest to the third respondent. Aggrieved over the same, the petitioner Corporation preferred an appeal in P.G.A.No.28 of 2018 before the Appellate Authority, namely, the Additional Commissioner of Labour, Tiruchirappalli. After hearing both sides, the Appellate Authority, vide order dated 29.10.2018, dismissed the appeal by confirming the order dated 01.11.2017 passed by the Assistant Commissioner of Labour, in P.G.No.37 of 2017. Challenging the order of dismissal dated 29.10.

2018, the petitioner Corporation has filed the present writ petition on the ground that District Purchase Centre is in operation only at the time of harvesting season and the services of the third respondent were availed only for a limited period and therefore, the third respondent is not entitled for the gratuity amount as claimed by him in the gratuity petition. It is also the case of the petitioner Corporation that the third respondent had not served for more than 75% of number of working days during the seasonal employment and therefore, the third respondent is not entitled for the gratuity amount as claimed by him in the gratuity petition.

7. Section 2-A of the Payment of Gratuity Act defines "continuous service", which reads as follows: "2A. Continuous service.-

(1) ....

(2) ....

(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. Based on the above provisions, the Tamil Nadu Civil Supplies Corporation Limited, Head Office, Chennai, issued a circular in No.77/2007 dated 26.11.2007 that the seasonal employees, namely, the Bill Clerks, Helpers and Watchmen, who are employed in the procurement centres, are eligible for gratuity under the Payment of Gratuity Act, 1972.

9. In the said circular, the eligibility of gratuity for seasonal employees is given, which reads as follows: "II. Seasonal Employees:

a) Eligibility: Gratuity shall be payable to a seasonable employee on the termination of his employment after he has rendered continuous service for not less than 5 years -

1) on his superannuation, or

2) on his retirement or resignation or

3) on his death or disablement due to accident or decease 3/5

Provided that the completion of continuous service of 5 years shall not be necessary, where the termination of the employment of any seasonal employee is due to death or disablement. The seasonal employee is eligible to get gratuity at the rate of 7 days wages for each season. [Section 4(2) of Payment of Gratuity Act 1972] subject to a ceiling of Rs.3,50,000/- (Section 4(3) of Payment of Gratuity Act, 1972)."

10. As per clause (b) in the column of Seasonal Employees (given in the said circular), a seasonal employees shall be deemed to be in continuous service in TNCSC, for such period if he has actually worked for not less than 75% of the number of days on which the seasonal establishment was in operation during such period.

11. Admittedly, the third respondent rendered service in the petitioner Corporation from 09.02.1986 to 30.04.2015. According to the petitioner Corporation, the third respondent had not served for more than 75% of number of working days during the seasonal employment and therefore, the third respondent is not entitled for the gratuity amount as claimed by him in the gratuity petition. In order to substantiate the same, the petitioner Corporation has not placed any material before this Court.

12. The fact remains that the services of the third respondent have been utilized continuously from the year 1986 to 2015. In the absence of any material that in certain years, the third respondent had not attended work for 75% of number of working days in every season, this Court is not inclined to entertain this writ petition.

13. Accordingly, the writ petition is dismissed. No costs. Consequently, consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS-III) // True Copy // / /2022 Sub Assistant Registrar Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

4/5

To

1. The Appellate Authority/Additional Commissioner of Labour, Tiruchirappalli.

2. The Controlling Authority/Assistant Commissioner of Labour, Tiruchirappalli.

+1 CC to M/s.SPL GP ( SR-207[F] dated 04/01/2022 ) +1 CC to M/s.P.SEETHARAMAN, Advocate ( SR-269[F] dated 05/01/2022 03.01.2022 7/12 OGY MS/22.03.2022/5P.5C 5/5