KOTHARI INDUSTRIAL CORPORATION UNIT ADONI SPINNING AND WEAVING CO Vs. APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972 DEPUTY COMMISSIONER OF LABOUR KURNOOL

JUDGEMENT

(1.) These two writ petitions are being disposed of by a common order as the, points raised in both the writ petitions are similar.

(2.) The facts in W.P. No. 16967 of 1989 are : one Sri Narasanna joined the petitioner's mill on 24-6-1960 and died while in service on 15-1-1987. During this period in the years 1972, 1973, 1975, 1978, 1981 and 1982 he was absent without obtaining leave for certain periods in each of those years. The petitioner-management had imposed fine for such absence. It is thus alleged that the said Narsanna was not in continuous service for the purpose of calculating gratuity under Section 2-A(1) of the Payment of Gratuity Act, 1972 (hereinafter referred to as 'the Act'). It is urged that unless he had put in 240 days and actually worked for that period with the employer, he would not be entitled to claim gratuity for that particular year as per Section 2-A(2) of the Act. Due to imposition of penalty for his absence during the above said six years, Sri Narsanna was disentitied to claim gratuity for those years. He had actually worked only for 231 and 1-1/2 days, 221 days, 3 hours, 204 days 1-1/2 hours, 204 days 1-1/2 hours, 216 days, 204 days four hours and 203 days respectively. The petitioner, claims that the said Narsanna was entitled for gratuity for 21 years though his total apparently was for 26 years 8 months and 26 days. This being so, an application on behalf of late Sri Narsanna was filed by the widow of the said Narasanna, who is 3rd respondent herein, claiming gratuity for these six years also as it was not paid. The 2nd respondent, before whom the said application was preferred, after enquiry found that the workman i.e. Sri Narsanna was in continuous service even in those years as per the definition in Section 2-A(1) of the Act and therefore, entitled to gratuity. It is urged that respondent No. 2 erroneously held that the period of absence such as sickness, accident, leave, and absence from duty without leave or on account of the lay-off, strike, lock-out, any cessation of work not due to the fault of the employee were also to be included in calculating the days of service in any year. Respondent No. 1 affirmed the order of respondent No. 2. The contention of the petitioner is, that the judgment in Lalappa Lingappa v. Lakshmi Vishnu Textile Mills (1981) 2 SCC 238 covers the point laying down that unless the worker actually works for 240 days in a particular year, it cannot be held that the worker had served continuously for the said year. It is alleged that respondent Nos. 1 and 2 erroneously applied the decision in D.B.R. Mills Limited v. Appellate Authority, under P.G.A. 1985 (1) LLJ 181 (A.P.). It is argued that in the decision of the said D.B.R. Mills' case 1985 (1) LLJ 181 (A.P.) which is a judgment of this court, the question was interpretation of the main provision under Section 2(c) as it stood under the Act prior to bringing of Section 2-A on the Statute. It is contended that the above interpretation of the term 'continuous service' in the instant case was due to the fault of the worker as the absence from duty was visited with punishment for those six years. Thus it is alleged that respondents 1 and 2 were not justified in awarding gratuity for the said six years.

(3.) In W.P. No. 16964 of 1989 the worker was allegedly absent in 1969, 1972, 1973 and 1974. It is undisputed that the worker had joined the mill in May, 1968 and was in service throughout till 5-11-1985. The worker was absent without leave in the aforesaid four years for certain days and for this the petitioner had imposed fines on the said worker. The petitioner contends that the worker was not entitled to gratuity during those four years as required by the provisions of the Act. It may however be pointed out at this stage that this writ petition as against the worker, who was originally respondent No. 3, was dismissed on 17-4-1993 by this Court. The said writ petition is now pending only against respondent Nos. 1 & 2.