AFR ^e-^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENT WRIT PETITION (L) No. 7346 of 2007 Chhattisgarh Housing Board Through—Its Commissioner Head Office, Shankar Nagar, Raipur(C.G.) VERSUS : 1; Appellate Authority Under the Payment of. Gratuity Act, 1972 and Sub-Labour Commissioner, Commissioner Office, Raipur 2. Controlling Authority Urider the Payment of Gratuity Act, 1972 and Assistant Labour Commissioner, Commissioner Office, Raipur 3. Shri Mook Chand Verma S/o Late Johelal Venna, Wo village & Post Tarra Via - Maandar, Distt.-Raipur(C.G.) WRIT PETITON UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Sanjay Patel, Advocate for the petitioner. Miss Sunita Jain, Panel Lawyer for the State/respondent No. 1 and 2. Shri S.K.Guha, Advocate for the respondent No. 3. ORDER (Passed on ......g.'f^ay ofMay, 2008) 1. By this petition, the petitioner challenges the validity of the order dated 11.7.2007 (Annexure P/5) passed by the Appellate Authority under the Payment of Gratuity Act, 1972 and Deputy Labour Commissioner, Raipur, whereby the appeal filed by the petitioner against the order dated 6.1.2007 (Annexure P/4) passed by the respondent No. 2, was dismissed. The petitioner further challenges the validity of the order dated 6.1.2007 (Annexure P/4), whereby the petitioner was directed to consider 28 years of service ofthe respondent No. 3 for the purpose of calculation ofgratuity. 2. The brief facts, in nutshell, are that the respondent No. 3 was initially appointed in Chuna factory on 25.11.77. When the factory was closed on 21.03.1994, the employees, includmg the respondent No. 3 was taken over by the petitioner on 06.01.2001 with effect from 21.03.1994.:The respondeat No. 3 retired from service on 30.04.2005. The petitioner, after having calculated the service of the respondent No. 3 from 21.03.1994 to 30.04.2005, as 11 years, 1 month and 9 days, computed the gratuity amount to the tune ofRs. 20,000/- and paid the same. Being aggrieved, the respondent No. 3 preferred ai< application before the respondent No. 2 for consideration of his service with effect from 25.11.1977. The respondent No. 2, vide order dated 6.1.2007 (Annexure P/4) considered the service period from first date of appointment in Chuna Factory i.e. 25.11.77 till 30.04.2005, as 28 years and directed to compute the gratuity on the basis of service of 28 years and to make the payment accordingly. Being aggrieved, the petitioner preferred an appeal before the respondent No. 1. The respondent no. 1, by its order dated 11.7.2007 (Annexure P/5) confmned the fmdings recorded by the respondent No. 2 and dismissed the appeal. Thus, this petition. Shri Sanjay Patel, learned counsel appearing for the petitioner would submit that the respondent No. 3 was in seasonal establishment and has worked for less than fifty percent of the number of days during operation of the said establishinent. The respondent No. 3 in his retum dated 17.3.2008, in para 3, has admitted that he was a seasonal employee and no appointment order was issued to him. The respondent No. 3 had never worked even for fifty percent of the number of days when the old establishment i.e. Chuna factory was in operation and as such, the respondent No. 3 was not in continuous service before his services was taken over by the petitioner on 6.1.2001. Shri Patel would further submit that section 2-A defines "continuous service" for the purpose of Payment of Gratuity Act, 1972 (hereinafter refen-ed to as 'the Gratuity Act'). Section 2A(3) ofthe Gratuity Acl provides that where an ,rf»y':3~'»s». ,i;i^--i<, "^ / s... ^ ^ j 1 ssa% g ^// employee employed in seasonal establishment, is not in continuous service within the meaning of clause (1), for period of one year or six months, he shall be deeined to be in continuous seryice under the employer for such period ifhehas apftjally worked fornot less than seventy-fivepercent ofthe number of days:on which the establishment was in operation during such period. Thus, the employee in a seasonal establishment has to work for not less than seventy-five percent of the^ number of days on which the establishmeflt was in oper'ation during such period. Thus, tKere was no continuity of service which can be taken into consideration for fhe purpose of computationofgratuity. . . 6. Shri Patel would next submit that the authorities below have failed to consider the legal provisions for the purpose of continuous service when admittedly, the respondent No. 3 had never worked even for fifty percent of number ofdays on which the establishment was in operation. 7. Shri Guha, leamed counsel appearing for the respondent No. 3 would submit that the respondentNo. 3 was a seasonal employee working.in Chuna factory from 25.11.77 to 21.03.1994. He had never worked even for 50 percent of aumber of days on which.the establishment was in operation. Since 06.01.2001 the petitioner issued a circular whereby the service of the respondent No. 3 was taken over bythepetitionerw.e.f. 21.03.1994 the date when the establishiTient was closed. The respondent no. 3 worked under the petitioner from 06.01.2001 to 30.04.2005. 8. I have heard and considered rival contentions advanced by the learned counsel appearing for the parties, perosed the pleadings and documents appended thereto. It is evident that the respondent No. 3, on his own admission had not worked even for fifty percent ofthe number of days on ..H..-32"- .•:.-vv! %<! -~. ''^SS!'1^:-"^, 1 y SSwS, ,g ;sy 9. 10. 4 which the establishment was in operation. Under Section 2A(3) of the Gratuity Act, in order to claim continuity in service in case of seasonal establishment, it is necessary that the employee should work for not less than 75 percent of the nuinber of days on which the establishment was in operation during such period. Section 2A(1) and (3) ofthe Gratuity Act, 1972 reads as under: "2-A. Continuous service. - For the purpose ofthis Act, - (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be inten-upted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders, mles or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or interrupted service was rendered before or after the commencement ofthisAct; (2) xxx xxx xxx (3)where an employee, employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period 6f one year or six months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy five percent of the number of days on which the establishment was in operation duriag such period." It is well settled position in law that admission is the best piece of evidence against the person making an admission. (See Delhi Transport Corporation v. ShyamLal'). . The Supreme.Court, in the matter ofBanaras Hindu University, Varanasi and another v. Dr. Indra Pratap Singh , has held as under: "12. In Words and PUrases (Vol.9) the word "continuous employment" is assigned the following meaning: ' AIR 2004 SC 4271 21992Supp(2)SCC2 ^) \ c^ / '\ *-^'ii./i' ':%)^^"--<?" "It means working with reasonable regularity, and work does not cease to be 'continuous' because of intermption in occupation due to periods oftemporary illness, such as are the incident to people of normal health. 'Continuously', as used in regulations defining total permanent disability under war risk policy, does not denote absolute continuity." 11. It is ta-ue that the gratuity for workers is no longer a gift but a right. The right flows from the provisions of the Gratuity Act. Bare pemsal of the defmition of continuous service as enshrined in Section 2A of the Gratuity Act, it is clear that the actual work is not necessary but for calculation of continuous service in seasonal establishment, the employee ought to have worked not less than 75 percent of the number of days during the period seasonal establishment was in operation. Chuna factory is admittedly a seasonal establishment and the respondent No. 3 in his return has admitted that he had never worked even for fifty percent of the total days during which the seasonal establishment i.e. Chuna factory was in operation. 12. The respondent No. 1 and 2 are in serious error while holding that the service of the petitioner should be counted from the initial date of appointment in seasonal establishment i.e. 25.11.1977. The authorities below have not considered the definition of continuous service in its right perspective as enshrined in section 2A ofthe Gratuity Act. 13. The petitioner has rightly calculated 11 years, one month and 9 days for the purpose ofgratuity and granted the gratuity from the date oftaking over i.e. 21.03.1994 till the respondent No. 3 retired from service on 30.04.2005, and paymentwas made accordingly. 14. For the reasons mentioned hereinabove, this petition succeeds. The orders dated 11.7.2007 (Annexure P/5) and 06.01.2007 (Annexure P/4) are quashed. The petition is allowed. Noorder asto costs. - Satish K. Agnihotri