RAMACHANDRA GANPAT DALVI Vs. PHOENIX MILLS LTD

JUDGEMENT

(1.) THE order dated June 22, 1994 passed by the appellate authority under the Payment of Gratuity Act, 1972 is subject matter of challenge in this writ petition filed at the instance of the petitioner. By the said order dated June 2, 1994 the appellate authority set aside the order passed by the Fifth Labour Court on the application under Section 4 of the Payment of Gratuity Act, 1972 made by the petitioner. The appellate authority held that the petitioner is not entitled to difference of gratuity amount and is only entitled for interest at the rate of 12% per annum on the amount of Rs. 10,044/-from January 17, 1982 to October 27, 1990.

(2.) THE petitioner Shri Ramchandra Ganpat Dalvi (for short "employee") made an application under Section 4 of the Payment of Gratuity Act, 1972 (for short "act of 1972") against the respondent M/s. Phoenix Mills Ltd. (for short "employer" ). The case of the employee was that he was working with the employer in Winding Department since February 24, 1958. On January 17, 1982 there was strike in textile industry and as a result whereof he continued with the employer upto the date. On March 3, 1985 he was employed again with continuity of service and worked with the employer till May 31, 1992 when he resigned from his service. According to the employee he was paid gratuity amounting to Rs. 10,044/- by the employer though he was entitled to a further amount of gratuity of Rs. 28,992. 50 as difference. The claim of the employee was contested by the employer by filing reply to the application and it was averred that the employee was first engaged in Roto Winding Department as substitute and made permanent on August 1, 1961 and since then he worked continuously with the employer till January 17, 1982. The employee participated in illegal strike from January 18, 1982. The case of the employer is that the employee did not report for work despite various appeals published in the newspapers and he was dismissed from service on August 7, 1982. It is the further case of the employer that the employee was re-employed at his request on August 30, 1985 as fresh employee and he accepted the said position and continued to work till May 31, 1992 when he resigned. According to the employer, the difference of Rs. 28,992. 50 claimed by the employee was misconceived and untenable. In support of his case the employee examined himself and produced documents. It appears that no oral evidence was led by the employer. The controlling authority after recording the evidence and hearing the parties allowed the application made by the employee and held that he is entitled to Rs. 28,992. 50 towards the difference in gratuity and is also entitled to simple interest at the rate of 12% per annum on the amount of gratuity from July 18, 1992 till payment was actually made. The order passed by the controlling authority on January 24, 1994 was challenged in appeal by the employer before the appellate authority. The appellate authority allowed the appeal, set aside the order passed by the Labour Court and it was held that the employee Was not entitled to difference of gratuity amount as claimed. As observed above, the appellate authority, however, held that the employee was entitled for interest at the rate of 12% per annum on the amount of Rs. 10,044/-from January 17, 1982 to October 27, 1990.

(3.) THE principal ground on which the appellate authority interfered with the order of the controlling authority was that the employee was out of service from 1982 to 1985 and thus there was break in service. On that basis the claim of the employee accepted by the controlling authority was set aside by the appellate authority.