MANAGEMENT OF SRI AKILANDESWARI MILLS LIMITED Vs. ASSISTANT COMMISSIONER OF LABOUR CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT

JUDGEMENT

(1.) THE question that arises in this writ petition is whether for determining the continuous service under the provisions of the Payment of Gratuity Act, 1972 (hereinafter to be referred to as the Gratuity Act), weekly holidays and national holidays are to be taken into account to determine whether an employee had actually worked or not under an employer for 240 days in a year.THE petitioner is a company.

(2.) THE petitioner filed this writ petition challenging the order of the Deputy Commissioner of Labour under the Gratuity Act. THE third respondent was an employee in the petitioner-company and he retired on superannuation on June 1, 1987. He claimed gratuity under the provisions of the Gratuity Act before the first respondent, the controlling authority on the ground that he had put in 38 years and 10 months as the total period of service.

(3.) IN my view, though there is a cessation of work on Sundays, national holidays or weekly holidays, the cessation of work is not due to any fault of the employee and once it is held that the cessation of work during those days is not due to any fault of the employees Sundays, weekly holidays and national or festival holidays are to be included in the computation of the period of continuous service under Sec. 2-A of the Gratuity Act.The Supreme Court in the case of Workmen of American Express INternational Banking Corporation v. American Express INternational Banking Corporation, (supra) held that while calculating 240 days for the purpose of continuous service under Sec. 25-B of the INdustrial Disputes Act, 1947, Sundays and other paid holidays should be taken into account in counting the number of days on which the workman is said to have actually worked and the following observation of the Apex Court is relevant for the purpose of this case, in Para 5 :"... This expression, according to us, cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, Standing Orders, etc ......" IN my view, the principles laid down by the Apex Court would equally apply to the determination of continuous service under the Gratuity Act.The Andhra Pradesh High Court while considering a similar question which arose under the provisions of Gratuity Act has also taken a view that the expression "actually employed" does not mean actually doing work or discharging duty.