Bangalore Metro Politan Transport Corporation vs The Deputy Labour Commissioner and the Appellate Authority, under the Payment of Gratuity Act, The Assistant Labour Commissioner and Controling Authority under the Payment of Gratuity Act and B. Munikrishnappa

Ram Mohan Reddy

The Public Road Transport; Corporation aggrieved by the order dated 15.6.2010, Annexure-F, of the Controlling Authority under the Payment of Gratuity Act, 1972, for short Act, filed an appeal, which when dismissed by order dated 11.5.2011, Annexure-H, of the Appellate Authority, has presented this petition.

Learned Counsel for the petitioner submits that the respondent workman when taken on badli rolls as a conductor, from 26.9.1979 to 1.8.1980, was brought on probation'' and retired as a Traffic Controller on 31.1.2008 and submitted a representation dated Nil Annexure-C, stating that the periods (i) spent on badli (ii) break in service; be excluded for computation of gratuity, in accordance with law. According to the Learned Counsel Rs. 2,79,500/- paid as gratuity was computed by excluding 1 year, 5 months and 14 days, as break in service and the period from 26.9.1979 to 1.6.1980 while on the badli rolls. Learned Counsel hastens to add that the Authorities under the Payment of Gratuity Act, though recorded a finding that Rs. 2,79,500/- was paid as gratuity to the respondent workman, wrongly effected a deduction of Rs. 2,61,560/- from out of Rs. 3,04.583/- re-determined as gratuity, in addition to the failure of the Authorities to consider in the consent extended by the respondent in the letter Annexure-C.

Per contra, Sri M.C.Basavaraju, Learned Counsel for the respondent seeks to sustain the orders of the Authorities as being well merited, fully justified and not calling for interference.

Having heard the Learned Counsel for the parties, perused the pleadings and examined the orders impugned, undoubtedly, the respondent workman by letter Annexure-C did state that the Corporation was at liberty to exclude the period while on the badli rolls, as a conductor and also the break in service for computing gratuity, to accordance with law. To a question of this Court, Learned Counsel for the petitioner is unable to point to any provision under the Act investing a right in the workman to waive his right to gratuity by excluding certain periods white computing gratuity, other than as provided for u/s 2(A) and Section 4 of the Act. The concession if any shows by the respondent, in his letter Annexure-C, to exclude certain periods while computing gratuity must strictly be construed in accordance with law i.e., either fall u/s 2(A) or Section 4 of the Act.

Indisputably, the Corporation and the respondent workman have entered into a settlement, whereunder, employees borne on the badli list are entitled to be brought on time scale of pay or on probation immediately after completion of 180/240 days of continues service, subject to availability of vacancies. If the respondent workman was brought on probation during the year 1960, than he must have (i) completed 240 days of continuous service (ii) vacancy in the substantive post of conductor, which aspects ought to be recorded in the Service Register maintained by the petitioner- Corporation. This relevant material i.e., Service Register and the entries made thereto as also the date on which the respondent workman was brought on probation are not placed before the Authorities and therefore, adverse interference requires to be drawn in against the petitioner,'' to conclude that the respondent workman did work continuously from 26.9.1979 to 1.8.1980 while on the badli list, so as to reckon the said period as ''active service''.

Section 2(A) of the Act defines ''continuous service'' while sub-Section 1 runs thus:-

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 interrupted 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, rules or regulations governing the employees of the establishment); lay-off strike or a lake-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 of this Act.

In the instant case, the period of 1 year, 5 months and 14 days categorized as break in service admittedly is not shown to be preceded by an order treating the said period as break in service in terms of the standing orders, rules or regulation governing the petitioner establishment. In that view of the matter, the Authorities below were fully justified in rejecting the petitioner''s claim to exclude the said period, as break in service while re-determining gratuity.

In the absence of a specific provision and regard being had to Section 13 and 14 of the Act relating to protection of gratuity and the overriding power of the Act over anything inconsistent therewith including a contract, coupled with permissible deductions u/s 4(6) of the Act, it is too far fetched for the petitioner to contend that, as an employer, is invested with a right to exclude, for computation of gratuity, the period of 1 year, 5 months and 14 days as break in service or on the basis of the letter Annexure ''C'' of the workman to exclude the said period in accordance with law.

It is no doubt true that the Authorities below, though having held that the respondent was paid Rs. 2,79,500/ nevertheless while re-determining gratuity, deducted Rs. 2,62,560/ to that extent, the orders impugned call for interference.

In the result this petition is allowed in part. The orders impugned are modified to the extent that Rs. 2,79,500/- when deducted from Rs. 3,04,583/- re-determined as gratuity the respondent workman is entitled to Rs. 25,083/- as against Rs. 43,023/- and in all other respect remains unaltered.