METTUR BEARDSELL, LTD. Vs. V. REGIONAL LABOUR COMMISSIONER

JUDGEMENT

(1.) This writ petition is for a writ of certiorari to quash the order, dated 31 December, 1986, in P.G Appeal No. 58 of 1986 on the file of the first respondent. The case of the petitioner is that on 23 December, 1977 the third respondent was appointed as salesman and he was assigned to the thread division. From 1 January, 1983, Mettur Textiles (Private), Ltd., came to be known as Mettur Textiles. Thus the third respondent became an employee of the Mettur Textiles from 1 January, 1983. According to the petitioner, he ceased to be an employee of Mettur Textiles, Ltd, with effect from 31 December, 1982. On 31 January, 1983 me third respondent resigned from the services and relieved on the said date. He was getting Rs. 1,335 as monthly salary. Since, according to the third respondent, his basic salary crossed Rs. 1,000 with effect from 10 November, 1982, he made a claim on 3 March, 1983 for gratuity from Mettur Textiles. Having failed in his attempt to get gratuity from Mettur Textiles, he preferred a claim on 14 February, 1985 against Mettur Beardsell, the petitioner herein. The claim was after a delay of two years and one month. The claim was resisted by the petitioner on the ground that he ceased to be an employee with them from 31 December, 1982. Further, he was not employed for a period of five years on a wage not exceeding Rs. 1,000. Hence, on these grounds the claim of the third respondent must be rejected. The claim was entertained by the second respondent in P.G Application No. 49 of 1985 under S. 7(4) of the Payment of Gratuity Act. But it was dismissed on 15 April, 1986 on the ground that he was not an employee for a period of not less than five years on wages not exceeding Rs. 1,000 within the meaning of explanation 2(e) of the Payment of Gratuity Act.

(2.) As against the said order, the third respondent preferred an appeal to the first respondent under S. 7(7) of the Payment of Gratuity Act in P.G Appeal No. 58 of 1986. On 31 December, 1986 the first respondent passed orders holding that the third respondent's wages crossed Rs. 1,000 only on 10 November, 1982 and he had put in four years 10 months and 18 days service. Hence there was continuous service under S. 2-A of the Payment of Gratuity Act. He must be deemed to have completed continuous service of five years. In the said view the first respondent allowed the appeal of the third respondent. Therefore, the petitioner has preferred this writ petition under Art. 226 of the Constitution of India

(3.) The third respondent filed a counter. In the counter he has mainly stated that he has produced documentary evidence to show that from 23 November, 1977 to 4 November, 1982 he was paid less than Rs. 1,000 and the contention that five years calendar service is necessary is untenable. He also contended that the transfer of service from the petitioner to Mettur Textiles did not cut his length of service. Further his resignation was accepted only by the writ-petitioner, as is evidenced by Exhibit P5.