Calcutta High Court (Appellete Side)

Calcutta Jute Manufacturing Company vs Dwarika Yadav And Ors on 4 December, 2025

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Lanusungkum Jamir
And
The Hon'ble Justice Rai Chattopadhyay

MAT 614 of 2025
Calcutta Jute Manufacturing Company
Vs.
Dwarika Yadav and Ors.

For the appellant : Mr. Soumya Majumder, ld. Sr. Adv.
: Mr. S.K. Singh
: Mr. R.K. Dubey

For the respondent No. 1 : Mr. R. Guha Thakurta

: Ms. S. Sengupta

Heard on : 28/10/2025

Judgment on : 04/12/2025

Rai Chattopadhyay, J. :-

1. A judgment of the Hon‟ble Single Judge dated March 28, 2025 in

WPA 28594 of 2022 is under challenge in the instant appeal. The

subject matter of the lis concerns with the period of continuous

service of the respondent No. 1/the workman, with the

appellant/company and the amount of gratuity actually payable to

him. The judgment of the Hon‟ble Single Bench as above is that of

reversal of the order of the Appellate Authority under the Payment

Page 2 of 28

Of Gratuity Act, 1972
and affirming the order of the Controlling

Authority in this regard.

2. The instant appeal deals with the issues inter alia that, whether the

Writ Court is justified to put the appellant to a worse off position

even though the order which the appellant has challenged before

the Writ Court was accepted by the beneficiary thereof (the

respondent/workman in this case), by not preferring an appeal

against the same;

Whether finding of the Writ Court of the total span of

„continuous service‟ of the respondent/workman is just, legal and

proper;

Whether the Writ Court has duly and lawfully imposed

the adverse inference on the appellant as regards proof of

„continuous service‟ of the respondent/workman in spite of the

appellant having produced „some evidence‟ in the form of leave

records and the respondent having evidently not been able to prove

his claim of continuous service with any evidence.

Whether the Appellate Authority and the Hon‟ble Single

Bench is justified and proper to come to the finding about the last

drawn per day wages of the respondent/workman, for the purpose

of calculation of the gratuity amount.

Page 3 of 28

3. Before coming into the judgment under challenge in this appeal, the

relevant factual background of the case is required to be narrated,

which is as follows:-

4. The respondent No. 1/workman joined the appellant company on

March 31, 1980 as a daily rated Badli workman. His service was

regularized with effect from December 10, 1995. He has been

superannuated from the appellant company with effect from July

23, 2013.

5. According to the respondent No. 1/workman, immediately after his

superannuation, he stood eligible and entitled for payment of

gratuity by the appellant. However, the appellant/company has

failed to duly perform its statutory duty and obligation by

disbursing the gratuity amount in favour of the

respondent/workman. Such alleged inaction of the

appellant/company prompted the respondent/workman to file his

application dated July 21, 2014 before the Controlling Authority

under the
Payment of Gratuity Act, 1972
in statutory form "N". The

Controlling Authority by dint of his order dated October 27, 2016

has disposed of the respondent/workman‟s prayer as above with

the direction that for rendering 10 years of continuous service with

the last drawn wages to the tune of Rs. 363.92/- per day, the

respondent is entitled to an amount of gratuity of Rs. 5,45,88/-

Page 4 of 28

along with admissible interests on the principal amount, for the

period from July 24, 2013 that is the subsequent day of the date of

his superannuation, till the date of actual payment. The Controlling

Authority has further held that date of joining of the

respondent/workman that is, March 31, 1980 is undisputed. Also

that, the workman has failed to adduce adequate evidence to prove

his performance for 240 days and more, in the years of service till

he was made regular.

6. The order of the Controlling Authority dated October 27, 2016

though stood acceptable for the appellant/company, however, was

challenged by the respondent/workman before the statutory

Appellate Authority.

7. The Appellate Authority by dint of its order dated August 25, 2022

has reversed the order of the controlling authority as above. The

order of the Appellate Authority is as follows:-

"In this instant case, the appellant had failed to adduce adequate
evidences before the Ld. Controlling Authority to proof that he
performed 240 days or more in the years of service from 31.03.1980
(date of joining as claimed by the appellant which was shown in ESI
identity Card )

On the other hand, according to Sec 2A(1) under the
Payment of
Gratuity Act, 1972
, the Respondent Company has failed to adduce
any evidence regarding issuance of an order from the Respondent
Company on break in service of the Appellant workman on 2000,
2002 and 2004-2008.

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Under this circumstances, the Appellate Authority is modifying the
point mentioned by the Ld. Controlling Authority in his order dated
27.10.2016 regarding this instant case that the appellant workman
has not rendered continuous service to the Respondent Company
from 10.12.1995 to 23.07.2013 i.e 18 years of continuous service.

In accordance with fortnight pay slip (Exhibit-C) the wages
(Basic+DA) of Sri Dwarika Yadav was Rs.7142.7 for 13 days [since
there are 13 working days in a fortnight]. Hence, his last drawn
wages was Rs.549.41 per day.

Now the Principal Amount of Gratuity admissible to Sri Dwarika
Yadav for rendering 18 years of continuous service to Respondent
Company from 10.12.1995 to 23.07.2013 is Rs.549.41 x 15 x 18 = Rs.
148340.70/-

Again Sri Dwarika Yadav, Appellant is entitled to receive interest in
terms of
Section 7(3A)
of the Payment of Gratuity Act, 1972, at the
rate of 10% on the Principal Amount of Rs 148340.70/- for the
period from 24.07.2013 to 24.08.2022 i.e 9 years 1 month.

Therefore, Interest = 148340.70 x 10/100 x 109/12 = Rs.
134742.81/-"

8. The Appellate Authority took into consideration two aspects, firstly,

that the respondent/workman has not been able to prove his

continuous service for 240 days or more in a year from the date of

his appointment; and also that the appellant/company has failed to

adduce evidence regarding issuance of any order in accordance with

Section 2A (1)
under the
Payment of Gratuity Act, 1972
, concerning

break in service of the workman in the years 2000, 2002 and 2004

to 2008. The Appellate Authority has founded its decision on the

reason that since the appellant/company has not issued any order

for break in service of the workman, the finding of the Controlling

Authority that he has not rendered continuous service for part of

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his entire service period, was not sustainable. The Appellate

Authority has further held the last drawn wages of the

respondent/workman to be Rs. 549.41/- per day instead of the

amount of per day wages as was held by the Controlling Authority.

Thus, in effect, the order of the Controlling Authority dated October

27, 2016 was reversed by the Appellate Authority by holding inter

alia that the respondent/workman served in the company for 18

years continuously and he would be entitled to the amount of

gratuity for rendering 18 years continuous service to the tune of Rs.

1,48,340.70/- and interests to the tune of Rs. 1,34,742.81/-.

9. This order of the Appellate Authority dated August 25, 2022 has

been challenged by the appellant/company before this Court in the

said writ petition No. WPA 28594 of 2022, which has been disposed

of by the Hon‟ble Hon‟ble Single Judge, by dint of the said

impugned judgment.

10. The Hon‟ble Single Judge has founded decision on the two factors

that is, firstly, no steps have been taken by the appellant/company

in accordance with the statutory provisions, in spite of allegations

have been made that the workman has failed to attend duty for 240

days or more in a year, for the years 1995, 2000, 2002 to 2005 and

also that the employer/appellant has failed to maintain the master

role and duty registers as envisaged under Section 25D of the

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Industrial Disputes Act, 1947
. The Court has held that adverse

inference is to be drawn against the appellant/employer company

so far as the period of continuous service of the workman is

concerned. The Court holds that the respondent No. 1/workman

has served the employer continuously from the date of his

appointment for a period of 33 years and shall be entitled for an

amount of gratuity as per law for the entire period of 33 years.

Thus, even while upholding the order of the Appellate Authority the

Hon‟ble Single Judge has made modifications therein by holding the

period of continuous service of the workman to be 33 years instead

of 18 years as was found by the Appellate Authority.

11. Mr. Soumya Majumder, learned senior counsel has represented the

appellant/company in the instant appeal. He has submitted that

the Hon‟ble Single Judge in the impugned judgment has made out a

third case which was not espoused by any of the parties before the

previous two fora. Mr. Majumder has submitted that the Controlling

Authority held the eligible period of service for payment of gratuity

to the respondent No. 1 to be 10 years which was reversed by the

Appellate Authority holding his service period, for the purpose of

payment of gratuity, to be 18 years. It has been pointed out that,

the Hon‟ble Single Judge without considering the findings of the

statutory authorities as above has abruptly and without any basis

has come to a finding about the eligible period of service of the

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respondent No. 1/workman, to be for 33 years for the purpose of

payment of gratuity. According to Mr. Majumder, when the

workman himself has submitted his length of service eligible for

being considered for payment of gratuity to be 18 years, by not

challenging the order passed by the Appellate Authority (which was

impugned in the writ petition), no third case ought to have been

made out by the Hon‟ble Single Judge to enhance the length of

service or otherwise the said decision shall be rendered as baseless

and perverse not being based on any cogent and sufficient

materials.

12. He has further submitted that the appellant could not have been

put to a worse off position by preferring an appeal. He says that the

appellant/employer company had never preferred any appeal but

accepted the order of the Controlling Authority. On the other hand,

the Appellate Authority‟s order had not been challenged by the

workman. Therefore, the period of continuous service of the

workman, as held by the Appellate Authority, has been accepted

and never challenged by him. In such circumstances the Court

ought not to have interfered into the finding of the Appellate

Authority as regards the period of „continuous service‟ of the

respondent/workman. In this regard, he has referred to the two

following Supreme Court judgments:-

Page 9 of 28

i) Bhagubhai Danabhai Kalasi and Anr. Vs. State of

Gujarat and Others
reported at (2007) 4 SCC 241

ii) Ashok Kumar Nigam Vs. State of Uttar Pradesh

and Anr. reported at (2016) 12 SCC 797

13. Mr. Soumya Majumder, learned senior counsel has submitted that

the test of entitlement of continuous service is that of "actually

worked" and it cannot be given any notional effect. He says that

admittedly, from the date of induction that is, March 31, 1980 to

December 10, 1995, the appellant was a Badli worker in the jute

mill. That, in accordance with the Certified Standing Orders, a Badli

worker is classified as to have no claim of permanence or

regularization in employment, but to be given job on the date when

permanent workman might not have attended their duties; a job of

a Badli worker is not a time-bound or tenure based job; it is purely

contingent in nature. With reference to a Supreme Court judgment

in
Prakash Cotton Mills Pvt. Ltd. Vs. Rashtriya Mills Mazdoor

Sangh
reported in 1986 (53) FLR 310, the appellant says that a

badly worker has no guaranteed service, but his engagement is

purely contingent in nature. He submits that, since from the date of

his regularization in service on and from December 10, 1995, the

respondent/workman has not discharged duties for 240 days or

more in the years 2000, 2002 to 2005. In support thereof, the

employer company/appellant has submitted relevant leave registers

Page 10 of 28

before the fact finding authority. According to the appellant, the

same amounts to "some evidence" presented by the

appellant/company in support of its contentions before the said

Authority.

By referring to a judgment of the Supreme Court in
S.R.

Tewari Vs. Union of India and Anr.
reported in (2013) 6 SCC

602, Mr. Majumder has submitted that availability of "some

evidence" as mentioned above, which has been produced by the

employer before the quasi-judicial Authority, should render the

finding of such Authority on the basis of the same and to be

immuned from being interfered with in exercise of power of judicial

review by this Court under
Article 226
of the Constitution of India.

He says that, the employer had produced "some evidence" before

the Controlling Authority in the form of leave records to show that

the respondent/workman had not rendered minimum 240 days of

service in each year from 1995 to 2013. Placing reliance on those

records and believing that to be true the Controlling Authority had

passed its order dated October 27, 2016. In absence of any mention

of the particular nature of documents required to be maintained by

the employer in the
Payment of Gratuity Act, 1972
for the purpose

of showing the number of days of work of the employee, the said

leave records already produced by the employer could not have been

ignored to come to any other conclusion other than what is

deductible from the entries made in the said leave records.

Page 11 of 28

14. Mr. Majumder has submitted that both the Appellate Authority and

the Hon‟ble Single Judge has erred in law in drawing adverse

inference against the appellant/company, in view of the fact that

the appellant has not made any order of break of service of the said

workman, in spite of alleging his absence beyond permissible

period. He submits that, the leave records produced should be

construed to be "some evidence" produced on the part of the

appellant/employer company. He has further submitted that, onus

of proof should lie on the person who asserts the fact. It is

submitted that, the elementary principle of law and rule of evidence

is that, one who asserts/claims, must prove his claim. Since the

respondent/workman has claimed that he has worked continuously

with the employer for all those period, the initial burden is on him

to substantiate his claim with sufficient evidence. Mr. Majumder

has submitted that in the instant case, both the Appellate Authority

as well as the Hon‟ble Single Judge has not been hesitant to

unequivocally say that the respondent has not come up with any

piece of evidence whatsoever in support of his claim of continuous

service. In such circumstances, the respondent has not discharged

his initial burden to prove his case. Mr. Majumder has submitted

that, the Appellate Authority as well as the Hon‟ble Single Bench by

not taking into consideration this aspect, has completely

disregarded the above elementary principles of law. And instead,

has granted relief to the respondent on the basis of the so-called

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weakness in defence, though according to him, the

appellant/company having already produced some evidence in the

form of leave register, even such so-called weakness in defence is

also not available as against the appellant/company.
In this regard,

Mr. Majumder has referred to the judgment of the Hon‟ble Supreme

Court in
Ratnagiri Nagar Parishad Vs. Gangaram Narayan

Ambekar and Ors.
reported in (2020) Vol 7 SCC 275. To buttress

his submissions that onus to prove that the employee worked for

240 days in a year lies on him.

15. To elaborate on this, Mr. Majumder has referred to
Section 2A
of the

Payment of Gratuity Act, 1972 which provides for "continuous

service". He submits that the definition which underwent an

amendment with effect from February 11, 1981, does not come to

the aid of the respondent/workman since his case does not fall

within the deemed continuous service in
Section 2A(1)
of the said

Act. He says that, it is nobody‟s case here that the service of the

workman was continuous which got interrupted on account of the

incidence mentioned in
Section 2A(1)
of the said Act. According to

the appellant therefore, the provisions of
Section 2A(2)
of the

Payment of Gratuity Act, 1972 have to be considered in this case,

for reckoning the continuous service in each period of one year for

counting the period of continuous service in accordance with law.

Page 13 of 28

16. Mr. Soumya Majumder, learned Senior Advocate has submitted,

with reference to
Section 13A
of the Payment of Wages Act, 1936

and Rule 83(6) of the West Bengal Factories Rule, 1948 that

according to the same and in absence of any specific provision

enumerated in this regard in the
Payment of Gratuity Act, 1872
, the

employer/appellant shall only be obliged to maintain records for a

period of three years and not more than that. In such

circumstances, he says that, reliance placed on the provision under

Section 25D
of the Industrial Disputes Act by the Hon‟ble Single

Judge is only a misplaced reliance and the said provision of the

Industrial Disputes Act, 1947
shall have no manner of application

concerning the instant dispute between the parties.

17. Finally, according to Mr. Majumder, the calculation of the amount

of gratuity made by the Appellate Authority in his order dated

August 25, 2022 is erroneous being based on erroneous

appreciation of the data in the wage slip of the respondent. He says

that, the days of work and corresponding wages as mentioned in

the wage slip, has been considered in totality by the said Appellate

Authority without reducing the amount from there which the

respondent has already accepted as leave encashment amount.

According to him, the amount mentioned in the wage slip was not to

be reckoned as the daily rate of wages of the respondent in so far as

from the same, the days for which leave encashment amount has

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been withdrawn, were required to be deducted, while calculating the

wage earned by the respondent/workman per day, for the purpose

of calculation of gratuity payable to him. For all the reasons as

mentioned above, the appellant has prayed for an order setting

aside the impugned judgment of the Hon‟ble Single Bench dated

March 28, 2025 and the order of the Appellate Authority dated

August 25, 2022 and upholding the order of the Controlling

Authority dated October 27, 2016.

18. Mr. R. Guha Thakurta, learned advocate, has represented the

respondent No. 1/workman in the instant appeal. With reference to

the fortnightly pay slip, he has submitted that the Appellate

Authority in his order dated August 25, 2022 has duly and

appropriately considered the same and come to a finding as regards

the daily wages earned by the respondent during his service. He has

supported the way as to how on the basis of the daily wages so

arrived at, the Appellate Authority has quantified the amount of

gratuity payable to the workman.

19. Mr. Guha Thakurta has on the contrary raised objection as regards

the order of the Controlling Authority passed in this regard dated

October 27, 2016. He submits that the same manifests non-

consideration of the record and erroneous calculation of gratuity

amount.

Page 15 of 28

20. The respondent/workman has raised no serious objection as

regards the span of „continuous service‟ of him as held by the

Appellate Authority that is, for 18 years. Similarly, last drawn wages

as calculated by the Appellate Authority to the tune of Rs. 549.41/-

per day has not been challenged by the respondent/workman.

21. Mr. Guha Thakurta has further contended that an amount of Rs.

99,000/- have already been disbursed to the respondent/workman

as gratuity vide a cheque dated January 30, 2023 and a further

amount of Rs. 83,752/- has been deposited with the Registrar

General of this Court by the appellant/company, in terms of the

Court‟s order, on account of gratuity of the respondent/workman.

22. As a matter of fact, the crux of the dispute between the parties are

now centralized as to what would be the period of „continuous

service‟ of the respondent No. 1/workman for his entitlement as to

the amount of gratuity.

23. Mr. R. Guha Thakurta has relied on the following judgments in

support of his argument:-

i) Bank of India Vs. Central Government Industrial Tribunal &

Ors.
reported at (2010) 4 LLJ 337: 2010 SCC OnLine Cal 1718

Page 16 of 28

ii) Phoenix Mills Ltd. Vs. Balasaheb Dagdoo Hinge and Others

reported at 1996 (74) FLR 2086:1996 SCC OnLine Bom 213.

iii) M/s.
Kothari Industrial Corporation Vs. Appellate

Authority and Others
reported at 1198 LIC 1149: 1997 SCC

OnLine AP 1158.

iv) Murlidhar Ratanlal Exports Ltd. Vs. State of West Bengal

and Others
reported at 2014 (II) LLJ 74: 2014 SCC OnLine Cal

4758.

v) The KCP Employees' Association, Madras Vs. The

Management of KCP Ltd, Madras and Others reported at 1978

(36) FLR 217: 1978 SCC OnLine SC 23.

24. As per
section 2A (1)
of the Payment of Gratuity Act, 1972,

„continuous service‟ is the uninterrupted service period of an

employee, which includes service which may be interrupted on

account of „leave‟ or „absence from duty without leave‟. It is

important in this case to note the intentions of the lawmakers

expressed through the words appearing in
section 2A(1)
of the

Payment of Gratuity Act, 1972 as follows :- "....not due to any

fault of the employee, whether such interrupted or

uninterrupted service what is rendered before or after the

commencement of this Act."

Page 17 of 28

25. Hence service interrupted by absence has not been outright

excluded from within the purview and scope of the statute, so far

as determination of the period eligible to be considered for

payment of gratuity to an employee, is concerned.
Section 4(2)
of

the said Act has provided that for every completed year of service

or part thereof in excess of six months, the employer shall pay

gratuity to an employee at the rate of fifteen days wages based on

the rate of wages last drawn by the employee concerned.
Section

2(b)
of the Act states that "completed year of service" means

continuous service for one year.

26. For the purpose of payment of gratuity under provisions of the

said Act of 1972, the mandatory, actual physical attendance or

performance of duty has sometimes been relaxed as seen from the

provisions of
section 2A
of the said Act. While
section 2A(1)
of the

Act includes the interrupted period of service within the purview of

the „continuous service‟, on fulfillment of certain conditions,

section 2A(2)
thereof has contemplated for deemed „continuous

service‟ period, when the number of days of performance of duty

by the specified employee, falls short of the minimum required

days of work within a year.

27. Under
Section 2A
of the Payment of Gratuity Act, 1972, the

interpretation of words "employment" and "continuous service"

Page 18 of 28

emphasize that service includes periods of authorized or

unauthorized absence that do not indicate an intention to

abandon employment, provided the relationship of employer and

employee remains unbroken. The continuity of service is

recognized when there is no termination or clear intention to sever

the employment, even if there are interruptions such as sickness,

leave, lay-offs, strikes, or lockouts, unless these are deemed to

constitute a termination or abandonment. "Continuous service" is

defined as uninterrupted service, including interruptions due to

sickness, leave, lay-off, strike, or lockout, unless such

interruptions are deemed to break the employment relationship.

28. So far as continuity in service or as to what should be construed

as a „continuous service‟, the Supreme Court has held in the cases

in (i) Budge Budge Municipality vs P.R.Mukherjee [AIR 1953 SC

58] and (ii) M/s.
Jeewanlal (1929) Ltd., Calcutta vs Its

Workmen
[1961 AIR(SC) 1567], that the words "continuous

service" in the award meant service not broken or interrupted by

the termination of the contract of employment by either the

employer or the employee or by operation of law. The Court found

that the employee's unauthorized absence from work for a period

of 8 and 1/2 months did not amount to a break in service, as it

did not indicate an intention to abandon his employment. The

Court held that the continuity of service is disrupted when the

Page 19 of 28

relationship of master and servant is terminated by resignation,

termination by the employer, or by operation of law. However,

mere participation in an illegal strike (not concerned in this

appeal) or unauthorized absence from work does not necessarily

cause a break in continuity, unless it is of such a long duration

that it can be reasonably inferred that the employee intended to

abandon their service.

29. The „employment‟ or „being employed‟ has to be interpreted as

comprising subsistence of master-servant relationship between the

employer and the employee and not necessarily compulsorily

dependent on rendering of actual work or being on duty or

performing the work. The interpretation of "employment" and

"continuous service" should be contextually examined, considering

whether the employee's relationship with the employer was

effectively maintained or terminated. Unauthorized absence, if any,

does not automatically constitute a break unless there is evidence

of any fault on part of the employee himself, resulting into such

absence or an intent to abandon employment. The law is well

settled that an interruption in the period of service not attributable

to the employee concerned, or which may not reasonably lead to

any inference of abandonment of service by him, his service

remains continuous for all the legal and statutory purposes.

Page 20 of 28

30. The appellant‟s contention is that both the Appellate Authority and

the Hon‟ble Single Judge has erred in holding in favour of the

respondent No.1/workman, on the basis of so called weakness in

defence of the appellant rather than any sufficient proof produced

by the respondent himself. In this case, the respondent has not

produced any evidence or proof of number of completed days of

work by him in a year. What the respondent has pleaded on

affidavit is his entitlement to the gratuity amount, implying therein

that he has been in „continuous service‟ with the appellant

company, within the scope of the law. Keeping in mind as to what

the „continuous service‟ would mean and imply in terms of the

statutory provision, as discussed above, the Court finds that even

in case of interrupted service due to the reason of alleged

unauthorised absence (as it has been pleaded by the appellant in

the instant appeal), such service shall not be considered to be

beyond the scope of the statutory provision as regards „continuous

service‟. The relationship between the parties as the employer and

the employee has not been severed till the date of superannuation

of the said respondent/workman. This fact is fortified from the

conduct of the appellant itself as it is seen to have allowed the

respondent/workman to be engaged in the appellant/company, till

the date of his superannuation.

Page 21 of 28

31. The respondent‟s proof of his contention as regards the period of

his „continuous service‟, appears to have been discharged, he

having pleaded and shown that he has been in employment with

the appellant/company till July 23, 2013 and no counter, having

been brought on record by the present appellant, to suggest that

the master-servant relationship between them has severed

anywhere in the meantime. The law now is well settled that the

burden of proof rests upon the person who claims, can hardly be

ignored. The proposition is upheld by the Supreme Court, in the

judgments of
Ratnagiri Nagar Parishad
(supra),
S.T.Harimani

(supra) and the Ganges Manufacturing Company (supra), as

referred to by the appellant. However, in the particular factual

background of the instant case those are not found to be

applicable for the reasons that the workman‟s contentions have

emerged as proved only incontrovertibly, due to the reasons as

discussed above. The Court finds that the Appellate Authority as

well as the Hon‟ble Single Judge has thus come to the findings

that the respondent/workman has been in „continuous service‟

with the appellant/company not erroneously but only applying the

right proposition of the law. It has been rightly noted that there is

no contrary fact proved to dislodge the claim of the respondent,

rather the same has been admitted by the appellant by admission

of the fact that he has been indeed allowed to be engaged with the

appellant/company, till the date of his superannuation.

Page 22 of 28

32. Rest is with regard to the period to be considered as continuous

service period of the respondent/workman, in the

appellant/company, for the purpose of calculation of gratuity

payable to him. Admittedly the respondent/workman has been

regularized on and from December 10, 1995 and his service ended

on July 23, 2013. The Appellate Authority thus has found the

eligible period of „continuous service‟ of the respondent for the

purpose of payment of gratuity to be for 18 years in total, reversing

the decision of the Competent Authority in this regard, who earlier

found the period to be 10 years. Though regarding the finding of

the Competent Authority the respondent had grievance, the order

of the Appellate Authority dated August 25, 2022 has not been

challenged by him.

33. Though the order of the Appellate Authority dated August 25, 2022

was never challenged by the respondent, the Hon‟ble Single Judge

found it proper to reverse the same in order to include the

undisputed span of service of the respondent as the budli worker

in the appellant company, in to the total period of „continuous

service‟, that is from the date of his joining till the date of his being

regularized in service, for which the respondent/workman was

said to be eligible for gratuity. Generally, Appellate Authorities'

factual determinations are binding on the Court unless those are

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shown to be patently unreasonable or perverse being unsupported

by the evidence. The Courts do not have inherent jurisdiction to

reappreciate factual findings in such cases. In cases under the

Payment of Gratuity Act, 1972
, the determination of the period of

service qualified as "continuous service" is a question of fact.

Factual findings by Appellate Authority is generally binding on the

Court under the doctrine of finality unless shown to be

unreasonable or unsupported by evidence. The workman‟s failure

to challenge or contest a particular factual finding typically

precludes the High Court from suo motu reversing it. The High

Court, in its appellate jurisdiction, generally does not reappreciate

facts but reviews only for legal errors or manifest perversity. The

Supreme Court in the case of Bakshish Singh vs M/s. Darshan

Engineering Works and others reported at (1994) 1 SCC 9, has

held that the High Court's power under
Article 226
is primarily

supervisory and extraordinary; it can interfere with factual

findings only if they are perverse, based on no evidence, or if the

authority has failed to consider the material evidence. The Court

has held that the principle of finality of factual findings by

Appellate Authority is well-established. Courts do not have a

roving power to reappreciate evidence in such matters. That the

High Court can only interfere if the findings are vitiated by

illegality, perversity, or lack of evidence.

Page 24 of 28

34. There is no such plea in this case. At no point of time the factual

finding of the Appellate Authority as regards the period of

„continuous service‟ of the respondent/workman for the purpose of

payment of gratuity has been challenged by the respondent, rather

he has accepted such finding of the Appellate Authority. The

respondent has not pleaded his grievance before the Court of such

finding of the Appellate Authority to be vitiated being unreasonable

or unsupported by evidence. Therefore, in absence of any

challenge as to the same, the High Court ought not to have

interfered to reverse the same with its own view or opinion.

35. The appellant‟s right to access to justice has caused him to suffer

worse consequences, than the appellant has been subjected to,

pursuant to the order which it has been aggrieved about and

challenged. The Supreme Court in
Bhagubhai Dhnabhai Khalasi

(supra) has held that a party having a grievance must have a

remedy; that access to justice is a human right; that when there

exists such a right a disputant must have a remedy in terms of the

doctrine ubi jus ibi remedium (where there is right there is remedy);

that the appellant could not have been placed in a worse position.

Similarly, in the case of Ashok Kumar Nigam (supra) the 3

Judges Bench of the Supreme Court has held that in appeal the

High Court cannot put the appellant in a worse-off position. The

said judgments relied on behalf of the appellant should squarely

Page 25 of 28

apply to the instant appeal too. The appellant challenges an order

before the Court which has been unequivocally accepted by the

respondent who put forth no grievance whatsoever against it. Even

then by reversing the same, the appellant has been put in a worse-

off position, which is however, forbidden under the law.

36. The other grievance of the appellant/company is with regard to the

quantum of per day remuneration of the respondent No.

1/workman as arrived at by the Appellate Authority for the

purpose of calculation of gratuity of the said person. It is

submitted that the Appellate Authority by modifying the finding of

the Controlling Authority in this regard, has found the last drawn

wages of the respondent/workman to be Rs. 549.41/- per day, on

the basis of pay slip (Exhibit C) of the respondent. It is submitted

that though apparently, from the said pay slip it appears that the

workman has earned wages to the tune of Rs. 7142.7/- for 13

days, on which the Appellate Authority has founded its calculation

as regards the per day wages of the workman, the same is only

erroneous in so far as the leave salary already received by the

workman is included in the amount of pay, as transpires from the

said pay slip, whereas the Authority ought to have deducted in

appropriate rate the amount of earned leave encashment by the

concerned workman. According to the appellant, calculation of per

day wages of the respondent as done by the Controlling Authority

Page 26 of 28

ought to have been found to be right and appropriate in this

regard. However, erroneously the Appellate Authority has modified

the same taking into account the erroneous figures.

37. By relying on the similar proposition of law as discussed above,

this Court is not willing to interfere into the factual finding of the

Appellate Authority made with respect to the per day wages

quantified for the respondent No. 1/workman, for the purpose of

payment of gratuity.

38. On the basis of the discussion as above, this Court is constrained

to find that the decision of the Hon‟ble Single Judge for payment of

gratuity to the respondent No. 1/workman for a period of 33 years

of his „continuous service‟ with the appellant/company stands to

be erroneous, baseless and unreasonable. Hence, the said decision

is liable to be set aside. The Court finds this not to be a fit case to

interfere into the order of the Appellate Authority dated August 25,

2022 in which the Appellate Authority has quantified the amount

of gratuity and interest payable to the respondent No. 1/workman

to the tune of Rs. 1,48,340.70/- and Rs. 1,34,742.81/-

respectively. It is taken into account that a sum of Rs. 99,000/-

has already been paid by the appellant in favour of the

respondent/workman on account of his gratuity amount. It is also

Page 27 of 28

noted that a sum of Rs. 83, 752/- stands deposited with the

Registrar General of this Court.

39. Hence, this appeal is partially allowed and disposed of with the

following directions:-

i) The period of continuous service of the respondent/workman

for the purpose of payment of gratuity is 18 years.

ii) The last drawn salary of the respondent/workman for the

purpose of payment of gratuity is Rs. 549.41/-.

iii) Therefore, in consideration of Nos. (i) and (ii) as mentioned

above, the respondent/workman shall be entitled to an amount

of gratuity to the tune of Rs. 1,48,340.70/- and interest for the

period from July 24, 2013 to August 24, 2022 to the tune of Rs.

1,34,742.81/-, totaling thereby to a sum of Rs. 2,83,083.51/-.

iv) Since Rs. 99,000/- has already been disbursed to the

respondent/workman on account of part payment of his

gratuity entitlement, let the rest of the amount of total of

gratuity and interest be immediately disbursed by the appellant

in favour of the respondent/workman, excepting the sum of

money of Rs. 83,752/- deposited with the Registrar General of

this Court.

Page 28 of 28

v) The Registrar General of this Court shall immediately release

the amount of money (to the tune of Rs. 83,752/-) in favour of

the respondent/workman upon production of valid identity

proof.

vi) The exercise as mentioned in (v) and (vi) should concluded by

the respective persons within a period of four (04) weeks from

the date of communication of copy of this judgment.

40. Appeal No. MAT 614 of 2025 is partially allowed and disposed of.

41. Urgent certified copy of this judgment, if applied for, be supplied to

the parties upon compliance with all requisite formalities.

(Lanusungkum Jamir, J.)

(Rai Chattopadhyay, J.)