IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 8.4.2008 Coram The Hon'ble Mr. Justice K.CHANDRU W.P. No.13430 of 1998 The Management of Coimbatore Murugan Mills, rep.by General Manager, Muttupalayam Road, Coimbatore 641 043 .. Petitioner vs. 1.The Assistant Labour, Commissioner (Central)-I Shastri Bhavan, 26, Haddows Road, Chennai-600 006. 2.The Regional Labour Commissioner, (Central), Shastri Bhavan, 26, Haddows Road, Chennai-600 006. 3.P.Angannan, ... Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records of the 2nd respondent and quash its order in Gratuity Appeal No.175/97 dated 29.4.98 confirming the order of the 1st respondent in G.A.No.46 of 1994 dated 13.5.1997. For Petitioner : Mr.Ravindran for M/s.T.S.Gopalan & co For Respondents : Mr.K.M.Ramesh for R3 O R D E R The petitioner is a Textile Mill, taken over by the National Textiles Corporation. A dispute arose with reference to the entitlement of gratuity made by the 3rd respondent. Since full gratuity was not paid, the 3rd respondent filed a Gratuity Application before the first respondent, who is the Controlling authority, notified by the Central Government. The said gratuity application was taken on file as Gratuity Application No.46 of 1994. https://hcservices.ecourts.gov.in/hcservices/ 2. Two specific questions arose before the first respondent. The first question is whether the 3rd respondent/workman is entitled for gratuity for a period of six years, namely 1974, 1979, 1989, 1990, 1991 and 1997, during which period allegedly there was a strike in the mills. The second question is that the mill, in which the 3rd respondent/workman was working, was originally owned by a private company and on account of prolonged closure (nearly for three years), the mill was subsequently taken over by National Textiles Corporation Ltd., through a Parliamentary enactment. In that event whether the 3rd respondent/workman is entitled for gratuity for the said closure period. 3. The first respondent directed payment of the unpaid gratuity for a total period of 9 years, which includes 6 years for the illegal strike and 3 years for the period of closure. The petitioner management filed an appeal before the second respondent/appellate authority, constituted by the Central Government, and the said appeal, which was numbered as G.A.No.175 of 1997, was partly allowed by an order dated 29.4.1998. However, the appellate authority disallowed the claim of gratuity for the closure period, basing upon the judgment of this Court in respect of similar mills taken over by the National Textiles Corporation. Since that portion of the order is not under challenge, it is unnecessary to go into the said issue. However, the appellate authority held that the workman having been allowed to work for more than 240 days, including the holidays those six years he cannot be denied gratuity. 4. Mr.Ravindran, learned counsel representing M/s.T.S.Gopalan, brought to the notice of this Court Section 2-A of the Payment of Gratuity Act(hereinafter referred to as the P.G.Act) and contended that the said definition of 'continuous service' will clearly exclude the period in which the workman had gone on strike, and therefore submitted that the orders of the first and second respondents suffer from material irregularity. 5. It is brought to the notice of this Court that the attempt by the 3rd respondent/workman as well as the appeal by the writ petitioner in moving the authorities constituted by the Central Government for gratuity is totally misconceived. Even though the mills (Coimbatore Murugan Mills), in which the 3rd respondent/workman was working, was taken over by the National Textiles Corporation, still in so far as the mill is only a Factory and the fact that the National Textiles Corporation Ltd. is having several factories all over India, has no relevance for holding that the Central Government was the appropriate Government. On the contrary, as per the definition of Section 2a(ii) of the P.G.Act, it can only be the State Government (See Jeevanlal Ltd., vs. Controlling Authority under the P.G.Act reported in 1982(1) LLJ 84. https://hcservices.ecourts.gov.in/hcservices/ 6. However, at this point of time, it is unnecessary to set aside the orders of the two lower authorities on such a technical ground. In this context it is relevant to refer to the judgment of the Supreme Court rendered in the STATE OF PUNJAB VS. LABOUR COURT JULLUNDUR AND OTHERS - (1981(1) LABOUR LAW JOURNAL 354), wherein the Supreme Court after holding that the Labour Court has no jurisdiction to deal with a gratuity claim and only the authority under the Payment of Gratuity Act alone can deal with the said issue being a special enactment, yet the Supreme Court observed that it was unnecessary to drive the parties after so many years of litigation to the special forum and confirmed the order of the Labour Court in the special circumstances of the case. In the light of the said principle, this Court is not inclined to set aside the orders on the ground of want of jurisdiction by the first and second respondents. 7. On the contention raised by Mr.Ravindran, learned counsel for the petitioner that the term 'strike' found in Section 2-A of the P.G.Act will disentitle the workman from claiming gratuity in respect of the period in which there was a strike and in those years the workman will have to prove that he had actually worked 240 days in the mills and that any shortfall from 240 days he will not get gratuity for those years, it must be stated that the said term 'strike' is qualified by the term 'not due to any fault of the employee'. 8. The definition under Section 2-A even though borrows heavily similar terminology defining 'continuous service' found in Section 25- B of the Industrial Disputes Act 1947, there is material difference between the two definitions. While in the case of Industrial Disputes Act, the law making authorities were careful enough in making an 'illegal strike' as being the disqualification for computing the period of continuous service, in the case of Payment of Gratuity Act, (that too, by an amendment introduced by Central Act 26/84) incorporating Section 2-A there is a deliberate departure. The word 'strike' and other terms like 'lock-out' or 'cessation of work' is further qualified by the term 'not due to any fault of the employee'. 9. In the present case both the authorities have concurrently found that the workman had completed 240 days', even though it is discontinuous. Therefore it is really unnecessary to go into the question whether due to the strike the 3rd respondent/workman would be disqualified from receiving any amount for the said period. However this Court is of the view that it is the obligation of the employer to prove before the authority that the strike was 'due to the fault of the employee' and not merely produce a tabulated statement to show that there was a strike during the period and that the workman's service was automatically discontinuous and in such of those years he will not get gratuity if he had not worked 240 days in an year. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel for the petitioner strenuously contended that in such a case the burden is on the workman and not on the employer. This Court is unable to agree with the said contention because the obligation to pay gratuity arises the moment any one of the contingencies found in Section 4 of the Act arises and it was the obligation of the employer to pay gratuity to the workman. Further the breach in such cases will be visited by a penalty also. In this context this Court is of the view that it is for the employer to prove that the strike, in which the workman had allegedly participated, is solely due to the fault on the part of the employee. In his case both first and second respondents have found against the petitioner and the said finding of fact do not call for any interference. 11. It must also be noted that the amount involved in the present case is very small. By the orders of this Court, the petitioner had already deposited before the first respondent the entire amount and the stay has also been made absolute by this Court on 26.12.2002. As this Court is not agreeing with the contention of the petitioner management, the 3rd respondent/workman is entitled to withdraw the amount lying in deposit with the first respondent. 12. However, at this stage, the learned counsel for the 3rd respondent/workman has brought to the notice of this Court that the 3rd respondent/workman is no more. In that context, without driving the parties to take further steps, it is made clear that the legal representatives of the 3rd respondent are entitled to seek for withdrawal of the deposited amount lying with the first respondent to the credit of G.A.No.46 of 1994, after proving to the satisfaction authority that they are the legal heirs of the 3rd respondent. 13. The writ petition is dismissed with the above directions. But considering the peculiar circumstances of the case there is no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar msk To 1.The Assistant Labour, Commissioner (Central)-I Shastri Bhavan, 26, Haddows Road, Chennai-600 006. https://hcservices.ecourts.gov.in/hcservices/ 2.The Regional Labour Commissioner, (Central), Shastri Bhavan, 26, Haddows Road, Chennai-600 006. +1 cc to Mr.T.S.Gopalan, Advocate, SR.No.19618. +1 cc to Mr.K.M.Ramesh, Advocate, SR.No.19469. Akr (Co) krd / 17.4 W.P.No.13430 of 1998 https://hcservices.ecourts.gov.in/hcservices/