VELUKUTTY ACHARY Vs. HARRISONS MALAYALEM LTD

JUDGEMENT

(1.) This appeal is preferred by the writ petitioner against the judgment of the learned single Judge in OP 7615 of 1987 dated 6-9-1991.

(2.) The writ petition was filed questioning the orders passed by the second respondent (Deputy Labour Commissioner, Kollam) and of the third respondent (appellate authority) under the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act'). The said authorities had held that the appellant was not entitled to gratuity as provided in the Act.

(3.) The facts of the case are as follows: The appellant writ petitioner was initially employed by the first respondent Company prior to 1-9-1970 and was admittedly retrenched on 18-12-1970. The appellant is a blacksmith. However, subsequent to the retrenchment, it appears that the Company was engaging the appellant for wages whenever there was work. The evidence was that whenever there was such work, a notice was being put up in the notice board and the appellant used to attend to that work and receive his wages for that work. It was further established that though the appellant claims to be under continuous employment after retrenchment from 18-12-1970 to 21-3-1981 for eleven years, he had actually been engaged for wages on specific days, namely, 176 days during the period 24-10-73 to 14-3-81. In fact, he had not been engaged even on a single day during 1975, 1976 and 1977. The appellant had worked for 53 days in 1973, 35 days in 1974, 34 days in 1978, 38 days in 1980 and 16 days in 1981. When such is the factual position, the appellant filed the present application on 11-6-1982 before the second respondent under the Act claiming gratuity from the first respondent. The second respondent passed Ext. P1 order and came to the conclusion that the appellant was working only for wages as stated above and was not in continuous employment. According to the provisions of the Act, a worker should have put in atleast 240 days service during an year for being entitled to gratuity. His application was, therefore, dismissed. The appellate authority confirmed the said finding and dismissed the appeal on coming to the conclusion that the appellant did not satisfy the conditions in S.2A read with S.4 of the Act inasmuch as he does not have five years continuous services under the employer. In other words, he did not have the minimum of 240 days.