Food Corporation Of India v. Union Of India And ORS.
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE Present :
The Hon'ble Justice Raja Basu Chowdhury WPA 5945 of 2023 Food Corporation of India Vs.
Union of India & Ors.
For the petitioner :
Mr. Devajyoti Barman For the respondent nos.1 to 3 :
Ms. Susmita Saha Dutta Mr. N. Saha Heard on :
10.05.2023 Judgment on :
10.05.2023 Raja Basu Chowdhury, J:
1. The present writ application has been filed, inter alia, challenging the order dated 21st September, 2021 passed by the Controlling Authority under the Payment of Gratuity Act, 1948 (hereinafter referred to as the "said Act"), and the order dated 29th July, 2022 passed by the Appellate Authority constituted under the said Act.
2. The petitioner says that the petitioner had engaged the respondent no. 4 from time to time on no-work-no-pay basis. The respondent no. 4, however, with a malafide intention on 12th December, 2019, had filed an application in Form-'N' before
the Controlling Authority claiming gratuity. The proceeding was contested by the petitioner and on contested hearing, the Controlling Authority by his order dated 21st September, 2021, was, inter alia, pleased to determine the gratuity payable to the respondent no. 4. Challenging the aforesaid order, a statutory appeal was filed before the Appellate Authority under the said Act.
3. The Appellate Authority, however, by its order dated 29th July, 2022, was, inter alia, pleased to uphold the findings returned by the Controlling Authority and declared that the respondent no. 4 is entitled to gratuity amounting to a sum of Rs.3,10,638/- for the period from 27th July, 2001 to 31st March, 2016. Challenging both the aforesaid orders, the present writ application has been filed.
4. Mr. Barman, learned advocate appearing for the petitioner, claims that the respondent no. 4 had never worked for more than 240 days in a year. He says that the respondent no. 4 was not a permanent worker and that despite there being no dispute about the status of the respondent no. 4 and as regards the nature of his employment, the Controlling Authority determined that the respondent no. 4 shall be entitled to gratuity.
5. It is contended on behalf of the petitioner that the Controlling Authority without returning a finding that the respondent no. 4
had worked for more than 240 days in a year continuously for a period of 5 years, had directed the gratuity to be disbursed in his favour. The aforesaid procedure adapted by the Controlling Authority according to Mr. Barman is not only contrary to the provisions of the said Act but is against the principles of law and equity. He says that unless a finding is returned by the Controlling Authority with regards to 240 days of continuous service in a year for a minimum period of 5 years, no direction could have been issued by the Controlling Authority for payment of gratuity in favour of the respondent no. 4.
6. By placing reliance on a judgment delivered by the Hon'ble Supreme Court rendered in the case of Lalappa Lingappa & Ors. AND Mahadu Sitaram & Ors. v. Laxmi Vishnu Textile Mills Ltd.1, it is submitted that non-permanent employee such as a badli employee is not covered by the substantive part of definition of "continuous service" as defined in Section 2(c) of the said Act and as such, is not entitled to gratuity for the badli period. He says that the orders passed by both the Controlling Authority as also by the Appellate Authority cannot be sustained and should be set aside.
7. Mr. Chakraborty, learned advocate appearing for the private respondent no. 4, on the other hand, submits that the writ 1 1981 AIR (SC) 852
petitioner had acknowledged and accepted that the respondent no. 4 is entitled to gratuity. By placing reliance on the order passed by the Controlling Authority, he says that the petitioner had filed a calculation sheet before the Controlling Authority and had accepted that the private respondent no. 4 had worked under the petitioner for 14 years 8 months and 4 days, i.e., from 27th July, to 31st March, 2016.
Having thus, acknowledged, the respondent no. 4 to have worked with the petitioner, it does not lie in the mouth of the petitioner to question the order passed by the Controlling Authority. The petitioner cannot be permitted to blow hot and cold at the same time.
8. By referring to a statement disclosed by the petitioner in the writ application, it is submitted that based on the disclosure made by the petitioner in the aforesaid statement, it would also transpire that the private respondent no. 4 had worked for more than 240 days in a year continuously for a period of 5 years and more. As such, the Controlling Authority and the Appellate Authority cannot be faulted for determining gratuity and directing disbursal of gratuity in favour of the respondent no. 4. In the facts stated above, it is submitted that the writ application should dismissed with costs.
9. Ms. Saha Dutta, learned advocate, enters appearance on behalf of the respondent nos. 1 to 3. She says that there is no irregularity on the part of the Controlling Authority or the Appellate Authority in directing disbursal of the gratuity in favour of the private respondent no. 4 and the orders would speak for themselves.
10. Heard the learned advocates appearing for the respective parties and considered the materials on record.
11. I find that the petitioner, inter alia, contends that the respondent no. 4 is a non-permanent worker. At the same time, I also notice that the petitioner has disclosed a statement in the writ application in the form of an Excel sheet which would in no uncertain terms, demonstrate that the respondent no. 4 had worked for more than 240 days continuously for a period in excess of 5 years.
12. I find from the orders, which are impugned in the present proceedings, that the petitioner had acknowledged by submitting a calculation statement that the respondent no. 4 had worked with the petitioner for 14 years 8 months and 4 days, i.e., from 27th July, 2001 to 31st March, 2016. Although Mr. Barman, learned advocate appearing for the petitioner, had strenuously argued that the petitioner was only a nonpermanent worker and is not entitled to gratuity, I find such an
argument cannot be sustained in the light of disclosure of the statement made by the petitioner in the writ application, itself.
13. It would also appear that both the Controlling Authority and the Appellate Authority had proceeded to determine the gratuity payable to the respondent no. 4 based on facts admitted by the petitioner. Once, the petitioner admitted before the Controlling Authority and the Appellate Authority under the said Act that the respondent no. 4 had worked for more than 240 days continuously for more than 5 years, the Controlling Authority and the Appellate Authority was no longer required to render any other finding thereon.
14. I find that Mr. Barman, learned advocate appearing for the petitioner, has relied on a judgment delivered by the Hon'ble Supreme Court in the case of Lalappa Lingappa (supra) to, inter alia, contend that the respondent no. 4 is not covered by the substantive part of the definition of "continuous service" as defined in Section 2(c) of the said Act.
15. I, however, find that the Hon'ble Supreme Court in paragraph 18 of the aforesaid judgment has been, inter alia, pleased to observe as follows:
"18. The Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an
integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case (AIR 1970 SC 919) (supra). The badli employees are nothing but substitutes.
They are like spare men who are not employed while waiting for a job : Colon v. Glasgow, 36 Scott LR 652. Vallabhdas Kanji (P) Ltd v. Esmail Koya, 1978 Lab IC 809 (Ker) taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of continuous service in Section 2 (c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e., in respect of the years in which there was not work allotted to them due to their failure to report to duty."
16. From the aforesaid, it would appear that although it may be true that a badli worker may not come within the definition of the substantive part of Section 2(c) of the said Act, as it stood prior to the Payment of Gratuity (Second Amendment) Act, 1984, yet in the present case, the writ petitioner, having itself, on its showing admitted in the aforesaid writ application, and having acknowledged before the Controlling Authority and the Appellate Authority that the respondent no. 4 having worked for more than 240 days continuously in a year for more than 5 years, in
my view cannot question the entitlement of the respondent no.4 to receive gratuity. In any event Section 2(c) of the said Act having since been amended, as noted above, the aforesaid judgment also does not come in aid of the petitioner.
17. There does not appear to be any irregularity in procedure adopted by the Controlling Authority or the Appellate Authority in passing the orders impugned. No case for interference has been made out.
18. The writ petition being WPA 5945 of 2023, therefore, fails and is accordingly dismissed.
19. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of requisite formalities.
(Raja Basu Chowdhury, J.) Saswata Assistant Registrar (Court)