THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.21058 of 2001 ORDER: The petitioner retired from service as Senior Traffic Inspector in Andhra Pradesh State Road Transport Corporation. He seeks writ of Mandamus declaring that action of the second respondent withholding gratuity and earned leave wages amounting to Rs.31,819/- as illegal, arbitrary, violation of principles of natural justice and Articles 14,16 and 21 of the Constitution of India. There is brief history of litigation which led the petitioner to file this writ petition. The petitioner sent letter of voluntary retirement from service. On the basis of the said letter, Depot Manager, Vikarabad depot issued proceedings dated 04.07.1998 accepting notice of voluntary retirement made by the petitioner with effect from 11.07.1998. But, prior to the said date of voluntary retirement, the petitioner withdrew the letter of voluntary retirement. Since no action was taken on the withdrawal letter of the petitioner, he filed Writ Petition No.13361 of 1999 in this Court for necessary relief. By order dated 07.12.1999 in the said writ petition, this Court held that letter of withdrawal of voluntary retirement dated 28.06.1998 given by the petitioner is valid and consequently directed the respondents to treat the petitioner as in service from the date on which he was declared to be voluntarily retired from service. As against the said order, the management/corporation filed Writ Appeal No.774 of 2000. Before the Division Bench hearing the said writ appeal, there was consensus between the advocates appearing for both the parties to the effect that the petitioner would forego 25% of the total amount due. Thereupon order dated 01.08.2000 was passed in Writ Appeal No.774 of 2000 modifying the order in the writ petition to the extent that the Corporation would be liable to pay only 75% of the amount due to the petitioner herein; and directing the Corporation to pay the same within two months thereof. It is the grievance of the petitioner that he was not paid proportionate gratuity amount of Rs.14,590/- and also earned leave encashment to the extent of Rs.17,229/-, totalling Rs.31,819/-. It is contended by the petitioner’s counsel that in view of the previous orders in Writ Petition No.13361 of 1999 as modified in Writ Appeal No.774 of 2000, the petitioner is entitled to all consequential benefits as he was given continuity of service. On the other hand, the respondents’ counsel contended that as per Section 2A of the Payment of Gratuity Act, 1972 the petitioner has to put in continuous service of 240 days in a year for payment of gratuity for that year of service and that since the petitioner has not worked during the period from 02.07.1998 to 12.01.2000, there was audit objection for payment of gratuity. It was further contended by the respondents’ counsel that the question of the petitioner earning leave for the said period of service will not arise, as the petitioner did not in fact work during that period. Ordering continuity of service by this Court in the previous litigation amounts to the petitioner notionally working during the said period. The petitioner is also given 75% wages for the said period, which works out more than 240 days in a year. Therefore, for the purpose of reckoning continuous service under Section 2 A of the Payment of Gratuity Act, 1972 the petitioner has to be deemed to have put in the said continuous service even during the period from 02.07.1998 to 12.01.2000. But, insofar as earned leave is concerned, the petitioner has to actually work during the said period in order to earn the leave. Without in fact working during the above period and without the Corporation receiving services of the petitioner during the above period, the question of the petitioner earning leave during the above period of non working does not arise in law. Thus, the petitioner is entitled for his claim in respect of his gratuity and is not entitled to his claim in respect of earned leave wages. In the result, the writ petition is partly allowed directing the respondents to pay Rs.14,590/- towards arrears of gratuity within two months from the date of receipt of copy this order. The writ petition, in other respects, is partly dismissed. No costs. ______________________________ SAMUDRALA GOVINDARAJULU,J 03.12.2010 lvl THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.21058 of 2001 Dt. 03.12.2010