IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-7-2011 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION No.3377 of 2007 K. Natarajan ... Petitioner Vs 1. The Tamil Nadu Civil Supplies Corporation, rep.by its Chairman-cum-Managing Director, No.12, Thambusamy Road, Kilpauk, Chennai – 600 010. 2. The Assistant Commissioner of Labour, DMS Compound, Teynampet, Chennai – 600 006. 3. The Joint Commissioner of Labour, (Competent Appellate Authority under the Payment of Gratuity Act, 1972), Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records of the third respondent ending with his order in case No.P.G.A.2 of 2006 dated 10.8.2006 and quash the same and direct the first respondent to pay the gratuity of Rs.31,154/- as computed by the second respondent together with interest. For Petitioner : Mr.K.Ilias Ali, For 1st Respondent : Mr.V.Selvanayagam For Respondents 2&3 : Mr.V.Jayaprakashnarayanan, Addl. Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R The prayer in the writ petition is to quash the order made in Case No.P.G.A.No.2 of 2006 dated 10.8.2006 passed by the third respondent and direct the first respondent to pay the gratuity of Rs.31,154/- as computed by the second respondent together with interest. 2. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner was initially employed as a casual labourer in the first respondent Tamil Nadu Civil Supplies Corporation (fully owned by the Government of Tamil Nadu) in the year 1972 and he was absorbed in the year 1998 as a regular employee and he retired from service on 30.6.2002, thus the petitioner has put in 29 years of total service. (b) The absorption/regular appointment was given by the first respondent Corporation pursuant to the order dated 2.1.1998 passed by the Government of Tamil Nadu, wherein the Government directed the first respondent to permit such of those casual labourers, who had completed ten years of service and make them permanent. According to the petitioner the said period is eligible to be counted for the purpose of calculating the gratuity. (c) As stated supra the petitioner retired on 30.6.2002 and he was denied gratuity stating that he is having only two years of permanent service. Hence the petitioner filed an application before the second respondent (Controlling Authority) under Section 7(1) of the Payment of Gratuity Act, 1972. 3. The said application was entertained by the second respondent, which was resisted by the first respondent stating that there is delay in filing the application, that the petitioner was appointed permanently only in the year 1999 as a labourer and he had not completed five years of service to claim gratuity; and that, the petitioner had not signed the attendance register, among other grounds. 4. On appreciation of the facts, the second respondent by order dated 29.11.2005 gave a finding that the petitioner was already functioning as a casual labourer even prior to 1999 and he was made permanent in the year 1998 and continued in employment thereafter. As the petitioner was functioning for more than ten years prior to regular appointment/permanent appointment, he is entitled to get gratuity amount as he was having total service of 12 years. The second respondent calculated the gratuity payable as Rs.31,154/- on the ground that the petitioner's daily wage was Rs.150/- per day and he served for more than 12 years. https://hcservices.ecourts.gov.in/hcservices/ 5. The first respondent having aggrieved, filed appeal in Case No.P.G.A.2/2006 before the third respondent and the said appeal was allowed by order dated 10.8.2006 against which this writ petition is filed by the workman. 6. The main contention raised by the petitioner in this writ petition is that he having served/worked for a total period of 29 years from 1972 to 30.6.2002, he is entitled to get the gratuity in terms of section 7(2) of the Payment of Gratuity Act, 1972 and he is coming within the definition of employee as defined under Section 2 (e) of the Act. 7. The learned counsel for the petitioner submitted that the Controlling Authority, in appreciation of facts and law, allowed the petitioner's claim and ordered payment of gratuity calculating the daily wage as Rs.150/- and the period served as 12 years and by order dated 29.11.2005 awarded a sum of Rs.31,154/- and if the same is not paid within 30 days, 10% interest was ordered to be paid. The learned counsel further submitted that the said order is erroneously set aside by the third respondent in the appeal without appreciating the petitioner's daily rated pay service for several years and the same is factually incorrect, and hence the appellate order is liable to be set aside and the order of the second respondent is bound to be restored. 8. The learned counsel appearing for the first respondent on the basis of the counter affidavit filed submitted that the petitioner has not rendered five years of service in the Civil Supplies Corporation and his direct employment was from 30.4.1999 to 30.6.2001 i.e, for a period of two years and two months. Learned counsel also submitted that even though the petitioner was absorbed in Civil Supplies Corporation, he was previously employed not directly in the Corporation and therefore the order of the appellate authority is just and proper. 9. I have considered the rival submissions and perused the orders of the Government issued in letter No.Ms.No.2 Co-Operative, Food and Consumer Protection Department, dated 2.1.1998. From the perusal of the said Government letter it is evident that the Government ordered to regularise the services of the persons serving as loadmen in the Corporation for ten years. The said Government order was issued to implement the policy announced by the Honourable Chief Minister of Tamilnadu on the May Day celebrations held on 1.5.1997. The petitioner, having completed ten years of service in the Civil Supplies Corporation godown as a loadman, was admittedly regularised from 30.4.1999 and retired on attaining the age of superannuation on 30.6.2001. https://hcservices.ecourts.gov.in/hcservices/ 10. Section 2(e) of the Payment of Gratuity Act, 1972 defines the term 'employee' as follows: "Section 2(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." The said section excludes only the employees of the Central Government and State Government and those governed by any other Act or Rules providing for payment of gratuity. The said section nowhere states that the employees working on daily wages are not covered. Further, due to the continuous employment of the petitioner as loadman for over ten years, he was made permanent as per the Government order and was permitted to retire by 30.6.2001 on attaining the age of superannuation. The said definition of 'employee' nowhere states that the employee shall be directly employed in any establishment, factory, mine, oil field, plantation port, railway company or shop. In the absence of any indication excluding employees working under a contract or through whom the establishment is doing loading and unloading of works, the third respondent is not justified in giving a restricted meaning to deny gratuity, which was ordered by the Controlling Authority. 11. The Honourable Supreme Court in the decision reported in AIR 1984 SC 1842 : (1984) 4 SCC 356 (Jeewanlal Ltd. v. Appellate Authority under the Payment of Gratuity Act) held that even the employees, who are paid daily wage are entitled to get gratuity and how the wages should be calculated is also mentioned in the said judgment. In the said judgment it is held that the daily wage should be calculated for 30 days and on that basis monthly wages should be arrived at. Thus, it is not an issue, whether the the petitioner has received salary on daily wages or monthly wages till he was permanently absorbed. 12. Section 7(2) of the Act mandates payment of gratuity for a person who served for a period of five years. The petitioner has served for more than 12 years as per the factual findings given by the second respondent/Controlling Authority. The said finding of fact has not been dealt with by the third respondent/appellate https://hcservices.ecourts.gov.in/hcservices/ authority, who has stated that the petitioner initially served on contract basis and therefore he cannot be given the gratuity. The said aspect was also considered by the Government while ordering regularisation/absorption in the Corporation of such of those persons, who completed ten years of service, though under a contractor. Section 2(e) makes no distinction of employment on daily wages and employment through the Contractor. The Legislature did not make any distinction between daily rated workman and permanent workman and if that was the intention, the definition would have been in different and positive term. 13. The Supreme Court in the decision reported in (1974) 3 SCC 498 (Silver Jubilee Tailoring House & Others v. Chief Inspector of Shops & Establishments & Another) and 1961 (3) SCR 161 (Shri Birdichand Sharma v. First Civil Judge, Nagpur & Others) considered the scope of Section 25F and 25B of the Industrial Disputes Act, 1947, and held that for claiming benefit under Section 25F, continuous work of part time is covered under Section 25B of the Industrial Disputes Act, 1947. The Legislature has not made any distinction between part time employment and full time employment. The same is the law laid down by the Apex Court in the decision reported in (2008) 10 SCC 698 (Divisional Manager, New India Assurance Company Ltd., v. A.Sankaralingam) The Supreme Court in the decision reported in AIR 2010 SC 1116 : (2010) 3 SCC 192 (Harjinder Singh v. Punjab State Warehousing Corporation) held that the labour welfare legislations must be given liberal interpretation to protect the interest of the workmen. 14. Applying the said principles to the facts of this case, the third respondent is not justified in denying gratuity to the petitioner on the ground that he became permanent workman only in the year 1999. The Government having passed the order to make the persons permanent, who have completed ten years of service on daily wages, the benefit shall be given in full, failing which it will have an effect of not extending the full benefit by the first respondent. 15. The issue regarding direct employment or employment through a Contractor to load and unload the food articles was also considered by the Division Bench of this Court in the decision reported in 1982 (1) LLJ 86 (Jeevanlal Ltd v. Controlling Authority under the Payment of Gratuity Act). In paragraph 31 it is held thus, "31. In Writ Petition No.2059 of 1976, the management (Mettur Chemical and Industrial Corporation Limited, Mettur Dam R.S.) assails the order of the authorities below on two grounds, viz., that the worker is not entitled to tack on his services under an independent https://hcservices.ecourts.gov.in/hcservices/ contractor with his services under the petitioner for payment of gratuity and secondly, the authorities below had over-stepped their limits when they granted 15 working days' wages per year instead of 13 days' wages, when the worker had not raised such a claim. The worker, Chinna Goundan, was formerly working under a contractor who was working in the mines belonging to the petitioner. In 1967 the petitioner took over the operation of the mines and worker continued to work in the mines as a breaker. The worker resigned his job on 19.12.1975. But, as per his request, the resignation was with effect from 27.9.1975. The management treated the period of service of the worker as 8 years, i.e., between 1967 and 1975 and paid him gratuity of Rs.1,292.72p. The worker approached the controlling authority and asked for payment of gratuity for the earlier period also during which he worked under the contractor. This plea was accepted by the controlling authority and gratuity was ordered to be paid from 1964 itself. In addition, the controlling authority directed payment of gratuity at 15 days' wages per year instead of 13 days wages as given by the petitioner. The result was, the petitioner was called upon to pay a further sum of Rs.758.23p to the worker. This order was unsuccessfully challenged before the appellate authority and that has led to the filing of this petition. Two questions arise for determination, viz., whether the worker is entitled to claim gratuity from 1964 onwards and secondly, whether the direction for payment of gratuity at 15 days' wages when the worker had not specifically raised such a claim is legally sustainable. As regards the first question, it has been pointed out by the authorities below that though the contractor's work was abolished with effect from 1.9.1967, the workers employed by the contractor were continued by the petitioner company, and no break in service was effected in the nomination Form F obtained from the workers under the Act, the date of appointment of the employee was recorded as 4.10.1964 which was verified and accepted the Additional Personnel Officer of the company under the seal of the company; accordingly the https://hcservices.ecourts.gov.in/hcservices/ services in the petitioner company should be taken only as to have begun from 4.10.1964 and due credit should be given for the entire period from 4.10.1964, namely, the date of appointment, to 27.9.1975, the date of termination of employment and hence the employee is entitled to the difference of gratuity due for the period from 4.10.1964 to 31.8.1967 also. Having regard to this position, we are unable to find anything wrong in the impugned orders of the authorities. The management itself had treated the worker as having entered service from 4.10.1964 onwards. Hence the management cannot refute its liability to pay gratuity for the period 4.10.1964 to 31.8.1967. As regards the second question, though the worker may not have specifically raised a claim for payment of gratuity at 15 days wages, yet the authorities functioning under the Act are statutorily bound to direct payment of gratuity to the worker as per the provisions of the Act. We have held in other petitions that a worker is entitled to get the actual wages for 15 working days per completed year of service under S.4(2) of the Act and not 13 days' wages alone. Hence the second contention is also devoid of merit. The resultant position is that the writ petition has to fail." (Emphasis Supplied) 16. The Himachal Pradesh High Court also in the decision reported in 2008 (2) LLJ 8 (H.P.S.E.B v. Balak Ram) considered the said issue and held that the period of service, the workmen rendered on daily wage post and regular post are to be counted for the purpose of payment of gratuity. In the said decision a Full Bench decision of the Punjab and Haryana High Court reported in AIR 1988 P&H 265 (Kesar Chand v. State of Punjab) was followed. 17. The payment of gratuity with interest is a statutory compulsion and not discretionary. In the decision reported in AIR 2003 SC 1526 : (2003) 3 SCC 40 : 2003 (1) LLJ 1119 (H.Gangahanume Gowde v. Karnataka Agro Industries Corp Ltd.) in para 6 held as follows: "6. It is evident from Section 7(2) that as soon as gratuity becomes payable, the employer, whether any application has been made or not, is obliged to determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling https://hcservices.ecourts.gov.in/hcservices/ authority specifying the amount of gratuity. Under Section 7(3), the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable. Under sub-section (3-A) of Section 7, if the amount of gratuity is not paid by the employer within the period specified in sub-section (3), he shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits; provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground. From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. However, under the proviso to Section 7(3-A), no interest shall be payable if delay in payment of gratuity is due to the fault of the employee and further condition that the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground. Under Section 8, provision is made for recovery of gratuity payable under the Act, if not paid by the employer within the prescribed time. The Collector shall recover the amount of gratuity with compound interest thereon as arrears of land revenue and pay the same to the persons entitled. A penal provision is also made in Section 9 for non-payment of gratuity. Payment of gratuity with or without interest, as the case may be, does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits expressly given in a social beneficial legislation cannot be ordinarily denied. Employees on retirement have valuable rights to get gratuity and any culpable delay in payment of gratuity must be visited with the penalty of payment of interest was the view taken in State of Kerala v. M.Padmanabhan Nair, AIR 1985 SC 356. ..........." https://hcservices.ecourts.gov.in/hcservices/ In the decision reported in 1994 (1) LLN 573 (Chander Sain v. State of Haryana) the Supreme Court held that a private College when taken over by the Government the services rendered in private college by the employees are bound to be counted for gratuity. Paragraphs 9 to 11 reads thus, "9. The learned counsel for the respondent- State has urged that the said memo shows that if the appellant had retired from service before the college was taken over by the State Government, he would have been entitled to gratuity on the basis of the service rendered by him while the college was in private management and the State would have contributed to the extent of 75 percent towards such gratuity, but since the appellant had not retired till the college was taken over by the State Government, there is no liability of the State Government towards the gratuity payable in respect of the period of service rendered by the appellant prior to its take-over by the State Government. 10. ............... The mere fact that the appellant did not retire prior to the take-over of the college by the State Government, but retired after it was so taken over, does not mean that he is not entitled to claim gratuity in respect of the period of service rendered by him before the college was taken over by the State. If the appellant would have been entitled to payment of gratuity on the basis of the service rendered by him when the college was under private management if he had retired prior to the college being taken over by the State Government, there appears to be no reason why the said period of service of the appellant while the college was under private management should be ignored for the purpose of computing gratuity payable to him. Merely because he retired after the college had been taken over by the State Government that shall not make any difference. The language of Para 3 of the memo, dated 28 March 1979, does not support the submission of the learned counsel for the respondent-State that since the appellant retired after the college was taken over by the State government, gratuity payable to him can only be computed on the basis of the service rendered by him after the college was taken over https://hcservices.ecourts.gov.in/hcservices/ by the State Government and not for the period of service rendered by him before the college was taken over. Paragraph 3 of the said memo imposes on obligation on the management of a private college to pay gratuity to the employees. It cannot be construed as denying payment of such gratuity to a class of employees who were subsequently absorbed in Government service and have retired after such absorption. In our opinion, therefore, the appellant is entitled to payment of gratuity computed on the basis of the entire period of his service covering the period of service rendered by him while the college was under private management as well as service rendered by him after the college was taken over by the State Government. In respect of the period of service rendered by the appellant while the college was under private management, the liability of the State Government would, however, be restricted to 75 per cent of the amount of gratuity payable for that period in view of the fact that in respect of aided institution the State Government was contributing towards deficit of salary, gratuity, etc., to the extent of 75 per cent of the total deficit. 11. The appeal is, therefore, allowed to the extent that the appellant is entitled to payment of gratuity to be computed on the basis of his entire length of service, inclusive of the service rendered by him while the college was under private management before it was taken over by the State Government. The liability of the State Government for the gratuity payable for the period of service rendered by the appellant while the college was under private management before it was taken over by the State Government on 14 January, 1980, would be restricted to the extent of 75 per cent only. .........." (Emphasis Supplied) 18. Applying the above said decisions to the facts of this case, I am of the view that the order of the Controlling Authority is just and proper and the order passed by the third respondent/appellate authority is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 19. In view of the above findings, the writ petition is allowed. The order of the third respondent/appellate authority in Case No.P.G.A.2/2006 dated 10.8.2006 is set aside. The first respondent is directed to implement the order of the second respondent/Controlling Authority dated 29.11.2005 within a period of four weeks from the date of receipt of copy of this order. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr To 1. The Chairman-cum-Managing Director, Tamil Nadu Civil Supplies Corporation, No.12, Thambusamy Road, Kilpauk, Chennai – 600 010. 2. The Assistant Commissioner of Labour, DMS Compound, Teynampet, Chennai – 600 006. 3. The Joint Commissioner of Labour, (Competent Appellate Authority under the Payment of Gratuity Act, 1972), Labour Welfare Building, 6th Floor, Teynampet, Chennai – 600 006. W.P.No.3377 of 2007 NSM (CO) kk 26/2 https://hcservices.ecourts.gov.in/hcservices/