IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.22588 of 2000 Between: The A.P.R.T.C., Rep by its Personal Manger, O/o Regional Manger, Ranga Reddy District, Imblibun Bus Station, Hyderabad. ..... PETITIONER AND Nazir Ahmed, S/o Wali Mohammed, H.No.17-3-44/1, Post Rein Bazar, Hyderabad-23. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or direction more particularly in the nature of Writ of Certiorari by calling records in P.G.Case No.7 of 98 dt 5-11-99 on the file of the Authority under the Payment of Gratuity Act, 1972 and Assistant Commissioner of Labour, Circle-IV, Hyderabad and quash the order and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner : K.MADHAVA REDDY(SC FOR APSRTC) Counsel for the Respondent : MR.A.K.JAYAPRAKASH RAO The Court made the following : THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.22588 of 2000 ORAL ORDER : This writ petition is filed by the A.P. State Road Transport Corporation (for brevity “the Corporation”) aggrieved by the order, dated 05-11-1999, in P.G. Case No.7 of 1998, passed by the Assistant Commissioner of Labour, Circle-IV, Hyderabad (for brevity “the Assistant Commissioner of Labour”). 2. A few facts that are necessary for disposal of this writ petition, in brief, are as under: The respondent herein was appointed as Apprentice Conductor on 09-05-1967. On completion of training, he was appointed as temporary Conductor on 12-09-1969. Subsequently, he retired from service on 31-07-1998 on attaining the age of superannuation and he was paid an amount of Rs.65,769-20 ps towards gratuity payable under the Payment of Gratuity Act, 1972 (for brevity “the Act”). The Corporation has calculated the said amount at the rate of 15 days wages as contemplated under sub-section (2) of Section 4 of the Act, for every completed year of service. 3. As per the provisions under Section 2-A (2)(ii) of the Act, an employee is deemed to have worked for a year, if he has put in service not less than 240 days in a year. It is stated that since the respondent did not attend the duty for more than 240 days in a year for about 9 years, the said period was not taken into consideration for the purpose of calculating gratuity and the respondent was paid a sum of Rs.65,769-20 ps towards gratuity for the remaining period. 4. The respondent herein has filed an application before the Assistant Commissioner of Labour, who is the competent authority under the Act, claiming gratuity for the entire service from 09-05-1967 to 31-07-1998 i.e., for 31 years. Records were placed by the Corporation before the Assistant Commissioner of Labour stating that the respondent has not put in 240 days per year for about 9 years. The Assistant Commissioner of Labour, while relying on the judgment of this Court in W.P.No.4206 of 1997, dated 02-04-1998, directed the Corporation to consider the claim of the respondent for payment of gratuity for the entire service from 09-05-1967 to 31-07-1998 and ordered for payment of balance amount after deducting the amount of Rs.65,769-20 ps. Hence, the present writ petition by the Corporation. 5. It is the case of the Corporation that as much as the respondent was appointed as an apprentice Conductor on 09-05-1967 and appointed to the service of the Corporation as temporary Conductor only on 12-09-1969, the period from 09-05-1967 to 12-09-1969 cannot be taken into account for the purpose of payment of gratuity. It is further stated that the gratuity is payable at the rate of 15 days wages for every completed year of service and, as much as the respondent did not put in 240 days of service in a year as contemplated under Section 2-A (2)(ii) of the Act, he is not eligible for payment of gratuity for about 9 years. But, without considering the same, the Assistant Commissioner of Labour has passed the impugned order, dated 05-11-1999, directing payment of gratuity for the entire service. 6. A counter affidavit has been filed by the respondent-workmen disputing that he was not an apprentice covered by the Apprentice Act, 1961. It is also stated that he did not put in service of 240 days in a year for about 9 years on account of his suspension through several orders and, therefore, he cannot be held responsible for his absence to duty and deprive him the benefit of gratuity. 7. Heard Sri K.Madhava Reddy, learned Standing Counsel for the Corporation as well as Sri K.Jaya Prakash Rao, learned counsel for the respondent-workman. 8. It is argued by the learned Standing Counsel for the Corporation that as there is a requirement of putting a minimum of 240 days in a year for payment of gratuity and even as per the finding recorded by the Assistant Commissioner of Labour, the respondent did not put in more than 240 days in a year for about 9 years, the said period was not taken into account for the purpose of payment of gratuity. 9. It is submitted that as the respondent was appointed as apprentice Conductor on 09-05-1967 and as temporary Conductor on 12-09-1969, therefore, he is not entitled for gratuity for the period from 09-05-1967 to 12-09-1969. 10. On the other hand, it is submitted by the learned counsel for the respondent that against the impugned order, there is a remedy of appeal under Section 7 (7) of the Act and the writ petition is not maintainable. It is further submitted that several Public and National holidays were not taken into account while calculating the number of days worked by the respondent. It is also submitted by the learned counsel that as there was no order showing the break-in service, the Assistant Commissioner of Labour had rightly considered the claim of the respondent and ordered for payment of gratuity for the entire service put in by the respondent. 11. Before considering the submissions on either side, I deem it appropriate to refer to certain provisions of the Act. 12. The definition of ‘employee’ as defined under Section 2 (e) of the Act reads as under: (e) “employee” means any person (other than an apprentice) employed on wages, (***) in any establishment, factory, mine, oilfield, plantation, port, railway company or shop, to do any skilled, semi- skilled, or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, [and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity.] From the above, it is obvious that the definition of “employee” excludes not only the apprentice covered under the Apprentice Act, 1961, but also any kind of apprentice. 13. Further, under Section 2-A of the Act, ‘Continuous service’ is defined. As per the said provision, the employees, who are not covered under Section 2-A (1), have to meet the condition as required under Section 2-A (2) (ii) of the Act for the purpose of fulfilling the requirement of continuous service by working not less than 240 days in a year. 14. Under Section 4 (2) of the Act, the gratuity is payable to an employee on the termination of his employment after he has rendered continuous service, at the rate of 15 days wages for every completed year of service or part thereof in excess of six months. 15. From the above said provisions, it is obvious that to claim the benefit of gratuity, one must put in continuous service of not less than 240 days in a year to claim 15 days wages for that year. 16. Though respondent has fled an application claiming the benefit of payment of gratuity for the entire 31 years of service rendered by him, he has not adduced any evidence to show that how the suspension period was treated on conclusion of enquiry. As a fact, the Assistant Commissioner of Labour himself has recorded a finding that for about 9 years, the respondent has not put in service of 240 days per year. Though the respondent was out of service by virtue of suspension orders in various disciplinary proceedings, unless he proves the same by any recorded evidence that the said period was already treated as ‘on duty’, he is not entitled to claim any benefit for computation of the said period for the purpose of payment of gratuity. Even the Assistant Commissioner of Labour has not examined the provisions, particularly, ‘continuous service’ as defined under Section 2-A, and ‘employee’ as defined under Section 2 (e) of the Act. 17. Therefore, in view of the fact that by virtue of orders of suspension, the respondent did not put in more than 240 days of service in a year for about 9 years and in the absence of any recorded evidence to show that the said period was treated as ‘on duty’, the Assistant Commissioner of Labour had simply by referring to the judgment, dated 02-04-1998, passed by this Court in W.P.No.4206 of 1997, has ordered to consider the claim of the respondent for the entire period of 31 years. Further, it is also to be noted that as per the definition under Section 2 (e) of the Act, the apprentice period cannot be taken into consideration for the purpose of payment of gratuity. 18. Further, though an argument is advanced on behalf of the respondent disputing about the maintainability of the writ petition, however, it is to be seen that as against the impugned order the writ petition was filed in the year 2000 and the same is pending before this Court for the last 8 years, and also taking into account that the Assistant Commissioner of Labour has not examined the various applicable provisions of the Act, the writ petition cannot be rejected only on the ground of maintainability. 19. For the foregoing, I deem it appropriate that it is a matter to be considered afresh by giving further opportunity to both the parties to adduce evidence and supporting material in support of their claims. 20. Accordingly, the impugned order, dated 05-11-1999, in P.G.Case No.7 of 1998 passed by the Assistant Commissioner of Labour, Circle-IV, Hyderabad, is set aside and the matter is remitted for fresh consideration directing the Assistant Commissioner of Labour, Circle-IV, Hyderabad, to consider the claim of the respondent afresh by taking into account the applicable provisions of Payment of Gratuity Act, 1972 and pass appropriate orders after giving opportunity to both the parties, within a period of two months from the date of receipt of a copy of this order. 21. It is open to the parties to adduce evidence and material in support of their claims. 22. In the result, the writ petition is allowed to the extent indicated above. There shall be no order as to costs. ________________________ R.SUBHASH REDDY, J 27-11-2008. Msr HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.22588 of 2000 27-11-2008 Msr