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Judgment
J.M. Malik, J.—Counsel for the petitioner pointed out that respondent No. 3 did not work for a full period of five years. She joined the service on 4th July, 1994 and remained absent for 514 days on the ground of sickness of her children. That was an authorized and sanctioned leave. She resigned on 14th July, 2000. Counsel for the petitioner submitted that she is not entitled to gratuity because she has not worked for a full period of five years. Controlling authority under the P.G. Act and Assistant Labour Commissioner (C), New Delhi, vide its order dated 19th April, 2007 directed the petitioner to pay a sum of Rs. 54,910/- to the respondent with a simple interest of 8% P.A. from 14.07.2000. The Appellate authority dismissed the appeal filed by the petitioner on 14th January, 2008. Counsel for the petitioner has drawn my attention towards clause (1) of Section 4 of Payment of Gratuity Act, 1972, which runs as follows:
Payment of gratuity-(I) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five than five years,-
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease:
provided xxx xxx xxxx xxx
The learned counsel for the petitioner submitted that the Apex Court has held that an employee has to put in meritorious service and contribute to the growth and prosperity of the organization. In order to embolden his contention he has cited an authority reported in Secretary, O.N.G.C. Ltd. and Another Vs. V.U. Warrier, , wherein it was held:
It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer [vide Garment Cleaning works vs. Its The Garment Cleaning Works Vs. Its Workmen, In Calcutta Insurance Co. Ltd. Vs. Their Workmen, after considering earlier decisions, this Court observed that "long and meritorious service" must mean long unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid to the harmonious employment of labourers or workmen. The court Proceeded to state that the misconduct may be such as to undermine the discipline in the workers-a case in which it would be extremely difficult to assess the financial loss to the employer.
The learned counsel for the petitioner opined that an employee is permitted to take leave for his own sickness or disablement but there lies a rub in respect of the sickness of her children and as such when she took leave for the sickness of her children, by no stretch of imagination it can be said to be a continuous service. The authorities have to assume that there is an automatic break in her service. The learned counsel for the petitioner, however, fairly conceded that the leave granted to her was sanctioned and authorized.
It is clear that his assumptions are all wet. There is no evidence, worth the name, that the petitioner remained absent unauthorisedly. This is not a case where the authorities declared it extraordinary leave as a break in service as required u/s 2A(1) of the Act. Section 2A defines the continuous service. The said section is reproduced as hereunder:
[2-A.Continuous service- For the purposes of this 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 interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order) Omitted by Act 22 of 1987, S.3 (w.e.f. 1.10.1987) 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 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 of this Act.
The Controlling Authority has referred to the case of Kothari Industrial Corporation, Unit : Adoni Spinning and Weaving Co. Vs. Appellate Authority Under The Payment of Gratuity Act, 1972, (Deputy Commissioner of Labour), Kurnool and Others, , wherein it was held, "merely because an employee is absent without obtaining leave, the same cannot be said to result in break in continuity of service for the purposes of the Act." In that case too no order was passed by the employer that the absence of the employee on those days shall be treated as break in service. The instant case without doubt stands on a better footing. As per Section 2A(I) the period of leave stands included in "continuous service. Even if a person obtains sanctioned leave from its department for the sickness of his children, he or she will still remain in continuous service. Gratuity is not to be paid to the employee gratuitously or merely as a matter of boon. It is to be paid to him for the services rendered by him to his employer. It cannot be said to be bounty. It cannot be with held on frivolous grounds. The payment of Gratuity Act, 1972 is a welfare legislation. From the aims and object of the Gratuity Act, it is clear that the legislature did not want that the gratuity amount should be withheld for any reason except for the reasons incorporated in the Act. The writ petition is devoid of merit and is therefore dismissed in limine.