THE HIGH COURT OF JUDICATURE AT BILASPUR .f Writ Petition No._ZLM_/2002 Food Corporation oflndia, Throi.igh District Manager, BUaspur (C.G.) - Versus- RESPONDENTS; 1. ^^s^ ^'y^"" ^"••••"v ^f' Shyain Sunder Deepak, Ex. Assistant Grade-I InF.C.I.R/oBehind Civil CourtWare House Road> Bilasplir(C.G.) ControUing Authority and Assistant Labour Commissioner (Central), Bilaspiir(C.G.). Appellate Aufhorily under the Payment ofGratuity Act and Regional Labour Commissioner (Central], 10, Civic Center, Marhatal, Jabalpur(M.P.). !St» WRIT PETITION UNDER ARTICLE 226/227 QFTHE coNSTrrunoN OF INDIA FORISSUANCE oFAWRrr a THE NATURE OF MANDAMUS. PROHIBI'nON. CERTIORARI ETC.OR ANY OTHER DIRECTION OR ORDER TQ DO JUSTICE IN THE MATTER. |>tii(ttt!'ri-i' ^F^ ^~7^ ' )1/ mGHCOURTOECHHATTIS(MRHATBILASPUR S.B. : IK)N'BLE MR. SATISH K.AGNIHOTRI, J. WMTPETITION N0.416 OF 2002 Food Corporation ofIndia Sliyam Surider Deepak and others FOR a4 - Satish K. Agnihotri ^ryxwrET -21-10-2006! i HIGH COURT OF CHHATTISGARH AT BILASPUR 8.R ^ HON^BLE MR. SAnSILK^AGNIHOTRLJ. WWTPETITJQN N0.416 Food Corporation oflndia Respondents versus Shyam Sunder Deepak and others Present : Mr. Prashant Jayaswai, Seaior Advocate with Mr. Atu3 Kumar, counsel for tfae petitioner. Mr. P-S.Koshy, counsel for respondent No. 1. ORDER (Passed on A<5> ofOctober, 2006) The present petition filed under Article 226/227 of the Constitution of India impugns the order dated 21-12- (Annexure P-6) passed by the Appellate Authority under tfae Payment ofGratuity Act, 1972 and Regional Labour Commissioner (Centrai), Jabalpur (M.P.) (henceforth 'the Appellate Authority') in Appeal No.PGA 50/99.ES.IV,whereby the petitioner - Coiporation was directed to pay a gratuity of Rs.24,300/- declaring sen'ice rendered by respondent No.l with the State Govemment as continuous service without break in service. 2. The facts in nutshell are that respondent No.l, while worldng as ofBciating copyist in the office ofDistrict and Sessions Judge, Bilaspur, applied for appointment to the post of Assistant Grade-III in the petitioner — Corporation. Respondent No.l was duly selected for appointment oa the post of Assistant Grade-III in the petitioner - Corporation vide order dated 7-2-1968 (Aiinexure P- !). A formal appointment order was issued on 2-3-1968 (Annexun P-3). Sen'ice ofrespQndent No-1 was confirmed on regulai- basis. On attaining the age of superanauation, respondent No-1 retired from service with effect from 19-3-1998. Respondent No.l was paid gratuity aniount under provisions of the Payment of Gratuity Act, 1972 (henceforth 'the Act, 1972') and the Payment ofG-ratuity (Central) Rules- 1972 for the period respondent No.l worked with the petitioner— Corporation. Respondent No.l was not granted continuity ofservice for working with the State Govemment. 3. Being aggrieved, respondent No.l approached the Controlling Authority under fhe Payment ofGratuity Act, 1972 aad Assistant Labour Commissioner (Central), Bilaspur (hencefortfa 'the Controlling Aufhority') claiming additional payment of gratiiity to the extent of Rs.24,300/- for the service rendered by him with the State Government. The Controlling Authority, by its order dated 30-7-1999 (Annexure P-5) in Case No.BSP/36(14)/99-ALC, dismissed the application of respondeat No.l hoiding that respondent No. 1 was not entitled to gratuity for the period he had worked with the State Govemment. 4. Being aggrieved, respondent No.l preterred an appeal under Section 7(7) ofthe Act, 1972 before the Appellate Authority in Appeal No.PGA 50/99.ES.IV. The Appellate Authority, relying on Explanation 2 to Clause 4 of the Food Corporation of India (Death-cum-Retirement Gratuity) Regulations, 1967 (lienceforth 'the Regulations, 1967'), held as under :- ".-..--..-.. The Clause 4 ofthe above regulation explains the circumstances under which a person who has rendered service in Government before joining the sertfice of the Corporation can be taken into consideration for the purpose of gratuity payment. The Explanatioa (2) Clause 4 of the above Regulations reads as under:- Explanation 2 : Service rendered in the Govt. or any Public or Private Undertaking by an employee before his joining service of fhe Corporation may be "declared" by the Managing Director to be deemed, in whole or in part, to be qualifyiag service in the Corporation provided that there was not break in sen-ice before joiaing tlie Corporation. / "'°a"-°-^-.,,. ""^ It lays down fhe condition that there should be no break in service before joining the corporation by the appellant from service of the State Government. The letter dated 18-1-1968 by Shri M.N.Bhavnani, District Manager substaatiates tiie claim of the appellant that there was no brealc in service when the appellant left the service of District and Sessions Judge- Bilaspur and reported for senice in FCI. The said letter states clearly that the application of the appeilant has been duly recommended and forwarded by District and Sessions Judge, Bilaspur. This letter was followed by the appointment order dated 2-3-1968- All tliose documents prove beyond doubt that fhere was no break in service when the appellant left the service ofthe State Government andjoined tlie service of the FCI. Moreover, tne respondent has not brought out adverse remarks against appellant while he was workin^ with the respondent. The respondent faiied to produce fhe service registers when the same was called for by the Appellate Authority. The respondent in tlieir submission dated 8-1-2001 clearly stated that the application for employment of the appellant was not traceable in their office. Moreover, the Managing Director of FCI has nevsr rejected in writing the appellaiit's case for considering fhe period of service with the M.P. Govemment. The apparent inaetion on the part of the FCI to declare the service rendered by tlie appellant with the State Govemment will not lead to the inference that his case has been tumed down by Managing Director of FCI." 5. The appeal filed by respondeat No.l was accordingly allowed by order dated 21-12-2001 (Aiiaexure P-6). '/ 6. The petitioner - Corporation has filed fhis petition impugning the order dated 21-12-2001 (Annexure P-6) passed by the Appellate Authority oa the grounds fhat the service rendered in the Govemment or Public or Private Undertaking before joinmg the service with the petitioner - Corporation provides for service with Public or Private Undertakina not for service with the State Govemment. Secondly, there was no declaration by the Managing Director for extending the period of'qualifying service rendered earlier before joining service of the petitioner - Corporation. Thirdly, there was a break in service. Thus, the earlier service period rendered with the State Govemment may not be tafcen as period of service for the purpose of gratuity. Lasdy, the impugned order passed by the Appellate Authority is erroneous on the face of records and statutory provisions. 7. Mr. Prashant JayaswaL leamed Senior Counsel with Mr. Atul Kumar, leamed counsel appearing for the petitioner— Corporation would submit as stated above. Leamed counsel would further submitthatrespondentNo.l was not entitled to gratit ofany ^rataiity amount for the past services rendered witli the State Govemment as there was a break of 17 days in service. )/7 8. Mr. P.S.Koshy, learned counsel appearing for respondentNo.l, per contra, would supportthe reasoning and order passed by the Appellate Authority on the ground that the contention ofthe petitioner that sen'ice ofrespondent No.l rendered with the State Govemment is not contemplated in Clause 4 of tl-ie Regulations, 1967 is bad on the face ofthe Regulations, 1967 itself. 9. Having heard leamed counsel for the parties and perosing records appended to the petition and also to the retum, it is evident that the contention of tlie petitioner - Corporation that the service rendered with the State Government cannot be treated as qualifying service for grant of gratuity under Explanation 2 to Clause 4 of the Regulations, 1967 as the same provides only for Public or Private Undertaldngs is misconceived and deserves to be rejected on the simple ground that bare reading of Explanation 2 to Clause 4 of the Regulations, 1967 makes it clear tliat service rendered in the Govemment or any Public or Private Undertaking by aii employee before hejoiiied service ofthe petitioner - Corporation may be declared by the Maiiaging Director to be deemed in whole or in part to be qualifying service in tfae petitioner - Corporation. There is a clear provision that fte sen'ice rendered in the Govemment may be treated as qualifying service in the petitioner Corporation. Next contention, that fhere was a break in service and declaration was accordingly not made by the Managing Director,in the facts and circumstances of the case, is also not tenable. The question of declaration was never considered by the Managini Director as it was treated by the petitioner - Corporation as a break in service before joining the petitioner - Corporation. Order dated 14-12-1967 (Aanexure P-1) stating that the service ofrespondent No.l would be tenninated with effect from 20-1-1968 A.N. as no longer required, does not meaii that service ofrespondent No.l was terminated. The application of respondent No. 1 was considered on the basis of duly recommended and forwarded letter by fhe District and Sessions Judge, Bilaspur to flie District Manager of the petitioner - Corporation permitting him to join fhe selection process for appointment on the post of Assistant Grade-III as the same is obvious from letter dated 18-1-1968 (Aiinexure R-l). The order of selection and appointment was passed on 7-2-1968 (Annexure P-2), as such Ifaere was a gap ofabout 17 days. In the order dated 7-2- 1968, there is a reference of D.0. letter dated 23-1-1968 while endorsing copy to the Officer on Special Duty, Food Corporation of India. 11. The Hon'ble Supreme Court, m Jeevanlat (1929) Linuted vs. Its Workmef^, while considering the expression "continuous service", heldas under :- r—^-__ 10. : ". there can be no doubt that in a different context the same words can and often have different meanings. As tliis Court has observed in Bitdge Budge Mimicipality v. P.R.Mukherjee 'the same words may mean one thing in one context and another in different context. This is riie reason why decisions on the meaning ofparticular words or collection ofwords found in ofher statutes are scarcely of much value when we have to deaJ with a specific statute of our own; they may be helpful but' canaot be taken as guides or precedents 'Continuous service' in the context of the scheme of gratuity framed by the tribunal in tlie earlier reference postulates the continuaiice of tlie relationship of master and servant between the employer and his employees- Ifthe servant resigns his employment service automatically comes to an end. If an employer tenninates the service of his empioyee that again brings the continuity of service to an end. -Ifthe service ofan employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difScult to hold that merely because an employee is absent without obtaining leave that itself would' bring to an end the continuity ofhis service." 12. Following the said decision, the Hon'ble Supreme Court in another case Banaras Hindu University, Varanasi and another vs. Dr. Indra Pratap Singh, while considering the expression "continuous service", has prescribed in clause (a) of para 2 of Merit Promotion Scheme evolved by the University Grants Commission. observed thus - 9.: "...-.-...... In case of shift from one Universitv to other - or from one institution to the other - it can reasonabiy be presumed that there is bound to be some interval- The interval may be of a day, a week or a month- What is relevant is not the length of the interval or break, as it may be called, but its nature. We do not meaii to say tliat length of such interval is totally irrelevant; what we mean, however, is that one must take into consideration fhe reason for which break — or fhe circumstances in which such break - has occurred." It was farther observed that - 12. : "In Words and Phrases (Vol.9) the word "continuous empioyment" is assigned the following meaning : "It means working with reasonable regularity, and work does not eease to be 'continuous' because of interroptions in oecupation due to periods of temporary illness, such as are incident to people of normal healtfa. 'Continuously', as used in regulations definin^ total permanent disabilily under war risk policy, does not denote absolute continuity." 13- : "Again, the word "continuous sen'ice" is ;iven tlie following meaning : "Phrase 'continuous service', as contained in collective bargaining agreement, had to be viewed in light of terms of agreement which provided for work schedule ofeight hours per day for a five day week, Monday to Friday, inclusive aiid, tfaerefore, one working regular prescribed hours of labour would be rendering 'continuous service' witiiin agreement even though not working on Saturdays or Sundays or more thaii eight hours in any 24." 13. Looking into the facts that the application for appointaent on fhe post of Assistant Grade-III made by respondent No.l was duly recommended aiid forvvarded by the District and Sessions Judge, Bilaspur, where respondent No.l was working, it cannot be held that respondent No.l was terminated fi-om service and there was a break in service. The order dated 14-12-1967 (Annexure P-1), whereby the services ofrespondent No.l was terminated as no longer required by the District and Sessions Judge, Bilaspur was necessary to enable 11 respondent No-1 tojoin the new posting as Assistant Grade-III in the petitioner - Corporation. Accordingly, there was some interval or break between the service with the Govemment before joining the new posting with the petitioner Corporation. Thus, fhis camiot be held as a break in service. 14. The matter was heard and was reserved for orders oa 8-9-2006. At tlie request of leai-ced counsel fbr the petitioner, four days' time was granted to file a copy of the D-0. letter dated 23-1-1968. The petitioner failed to file the said document. Tlie petitioner further filed an application for extensioa oftime being I.A.No.9202/2006, which was heard on 19-9-2006 and the petitioner was granted two more weeks' time to file a copy ofthe D.0. letter dated 23-1-1968. The petitioner was furtlier directed to file a copy ofthe letter ofthe District and Sessions Judge, Bilaspur, whereby name of respondent No.l was recommended and forwarded to the OfEcer on Special Duty in the petitioner - Corporation. Notwi'ithstendin! the orders made by this Court to file a copy of the D.0. letter dated 23-1-1968 and a copy of the letter of the District and Sessions Judge, Bilaspur, no document was filed. 15- As a result and for the aforesaid reasons, it is not warraated to interfere with the findings and ordere dated 21-12- '{•. :L(|!: >:;c.i! {• -• 12 2001 (Aanexure P-6) passed by the Appellate Authorfty. This petition is accordmgly dismissed with costs quantified to be a sum ofRs.5,000/-(Rupee£8Five Thousand). ^... Sd/- Satish K. Agnihotri Judge J^-10-: \ ;^3opal 1 AIR 1961 SG 1567 2 1992Supp(2)SCC2