The Senior Regional Manager v. The Appellate Authority
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.498 of 2020 The Senior Regional Manager, Tamilnadu Civil Supply Corporation, Thanjavur.
... Petitioner versus
1. The Appellate Authority/ Additional Commissioner of Labour, Thiruchirapalli.
2. The Controlling Authority/ Assistant Commissioner of Labour, Thiruchirapalli.
3. K.Revathi ... 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.17 of 2017 dated 19.02.2018 wherein dismissed the appeal and confirming the order of the 2nd respondent in P.G.No.12 of 2013 dated 28.03.2016 and to 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.17 of 2017 dated 19.02.2018. The Appellate authority directed the petitioner Corporation to pay a sum of Rs.62,261/- together with interest to the third respondent under the Payment of Gratuity Act, 1972.
2. One Kumaraguru, husband of the third respondent, joined the service as Assistant on 16.09.1983 in the Paddy Procurement Centre 1/5
and after rendering 29 years of service, he attained superannuation on 31.03.2012. After retirement, he was paid gratuity amount of Rs.11,940/-. According to him, though he worked as a seasonal employee, he is deemed to be a permanent employee and hence, he is entitled for a sum of Rs.74,201/- towards gratuity. Therefore, he filed a petition before the Assistant Commissioner of Labour, Tiruchirappalli, in P.G.No.12 of 2013. The Assistant Commissioner of Labour, Tiruchirappali, vide order dated 28.03.2016, dismissed the petition by fixing the gratuity amount at Rs.10,234/-. Aggrieved over the same, he preferred an appeal before the Appellate Authority, namely, the Additional Commissioner of Labour, Tiruchirappalli.
During the pendency of appeal, he died and thereafter, the appeal was prosecuted by his wife, namely, the third respondent herein. After hearing of both sides, the Appellate Authority, vide order dated 19.02.2018, fixed the gratuity amount at Rs.74,201/- and directed the petitioner Corporation to pay the difference of gratuity amount of Rs.62,261/- with 10% interest. Aggrieved over the same, 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's husband has not worked continuously for more than 75 percent of number of working days in every season and therefore, he is not entitled for a sum of Rs.74,201/- towards gratuity as claimed by him. 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's husband joined the service in the petitioner Corporation on 16.09.1983 and after rendering 29 years of continuous service, he retired from service on 31.03.2012. Since he was in continuous service, the third respondent is entitled for Rs.74,201/- towards gratuity along with interest at the rate of 10% p.a.
5. Heard the learned counsel appearing on either side and also perused the materials available on record.
6. The third respondent's husband served as an erstwhile employee in the petitioner Corporation from 16.09.1983 and retired from service on 31.03.2012. After the retirement, he was given the gratuity amount of Rs.11,940/-. According to him, though he worked as seasonal employee, he is deemed to be a permanent employee and therefore, he is entitled for a sum of Rs.74,201/- towards gratuity. Therefore, he filed a petition before the second respondent in P.G.No.12 of 2013, claiming gratuity amount of Rs.74,201/- along with interest. However, the said petition was dismissed, vide order 2/5
dated 28.03.2016. Aggrieved over the same, he also preferred an appeal before the first respondent in P.G.No.17 of 2017 and pending the appeal, he died and the appeal was prosecuted by his wife, namely, the third respondent herein. The appellate authority, vide order dated 19.02.2018, allowed the appeal and directed the petitioner Corporation to pay the difference of gratuity amount of Rs.62,261/- together with 10% interest to the third respondent. Aggrieved over the same, the petitioner Corporation filed the present writ petition on the ground that Direct Purchase Centre is in operation only at the time of harvesting season and the services of the third respondent's husband were availed only for a limited period and therefore, the third respondent is not entitled for the gratuity amount as claimed in the appeal petition. It is also the case of the petitioner Corporation that the third respondent's husband has 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.
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's husband rendered service in the petitioner Corporation from 16.09.1983 to 31.03.2012. According to the petitioner Corporation, the third respondent's husband has 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. 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's husband have been utilized continuously from the year 1983 to 2012. In the absence of any material that in certain years, the third respondent's husband has 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, Thiruchirapalli.
2. The Controlling Authority/ Assistant Commissioner of Labour, Thiruchirapalli.
+1 CC to M/s.SPL GP ( SR-212[F] dated 04/01/2022 ) +1 CC to M/s.P.SEETHARAMAN, Advocate ( SR-268[F] dated 05/01/2022 ) 03.01.2022 3/12 OGY MS/22.03.2022/5P.5C 5/5