Mah. State Cooperative Cotton ... vs The Appellate Authority Under ...
2017 Latest Caselaw 2063 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                          WRIT PETITION NO. 4542 OF 2009


            Maharashtra State Cooperative Cotton
            Growers' Marketing Federation Ltd.,
            Wardha Road, Nagpur,
            through the General Manager ......                        PETITIONER


                               ...VERSUS...


 1.         The Appellate Authority
            Under Payment of Gratuity Act and
            Additional Commissioner of Labour,
            Nagpurm Bhosla Chambers,
            Civil Lines, Nagpur-440 001.

 2.         The Controlling Authority under
            Payment of Gratuity Act and
            Assistant Commissioner of Labour,
            Chandrapur, Tq. And Distt. Chandrapur

 3          Kisan Gosai Dhote
            (amended)

 3a.        Smt. Maya Baban Dhote,
            aged Major,  R/o. Warora i.e. Kisan
            Gosai Dhote, Khanji Ward, Near
            Ambadevi Devsthan, Warora,
            Tah. Warora, Distt. Chandrapur ...             RESPONDENTS

                                        And

                          WRIT PETITION NO. 4604 OF 2009

            Maharashtra State Cooperative Cotton
            Growers' Marketing Federation Ltd.,



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          Wardha Road, Nagpur,
          through the General Manager ......                                 PETITIONER


                                 ...VERSUS...


 1.       The Appellate Authority
          Under Payment of Gratuity Act and
          Additional Commissioner of Labour,
          Nagpurm Bhosla Chambers,
          Civil Lines, Nagpur-440 001.

 2.       The Controlling Authority under
          Payment of Gratuity Act and
          Assistant Commissioner of Labour,
          Chandrapur, Tq. And Distt. Chandrapur

 3       Bhaurao Kisan Pachare,
         Major, R/o. Warora, Tah. Warora,
         District-Chandrapur ...                                   RESPONDENTS
 -------------------------------------------------------------------------------------------
 None  for Petitioner.
 Shri K.L.Dharmadhikari, AGP for Respondent nos. 1 and 2
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

th DATE : 27 APRIL, 2017 .

ORAL JUDGMENT

1] In both these matters, the respondent No.3, was

working as Choukidar and both of them had completed 19

and 17 years service respectively. The authorities below

have recorded the finding that both of them worked

throughout the year in the establishment of the petitioner and

hence, were entitled to payment of gratuity under Section

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4(2) of the Payment of Gratuity Act.

2] It is the case of the petitioner in both these

petitions that the respondent No.3 in both these petitions

were working in the seasonal establishment and hence they

were entitled to gratuity at the rates specified in second

proviso below sub-section (2) of Section 4 of the Payment of

Gratuity Act.

3] The question involved in the present case is

covered by the decision of this Court in Writ Petition No. 3023

of 2009 in the case of Madhaodas Janidas Mohta Ginning

and Pressing Factory vrs. Hirabai Mohan Chavan and other

connected matters, delivered on 20.04.2017. Para 6 of the

said decision being relevant, is reproduced below.

"6.Merely because an establishment is categorized as seasonal establishment, does not advance the case to claim benefit under the second proviso so as to qualify for the benefit of payment of gratuity at a reduced rate. To avail the benefit of second proviso below sub- section (2), two things are required to be established - (a) that an employee works only in season, and (b) that he is not employed throughout the year. Thus, a real test is the period of employment of an employee in particular establishment for the purposes of second proviso. It is, therefore, the burden upon an employer to establish that an employee was working only during the season in the seasonal establishment and was not so employed throughout the year. It is for an employer to come forward with such a specific case and lead evidence to establish it. It is a social welfare legislation, to be construed in beneficial way to the employees and unless the burden is satisfactorily discharged, a legal right cannot be taken away"

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           5]              In   the   present   case,   the   petitioner   employer   has

failed to establish that the cases of respondent no.3 are covered

by second proviso below sub-section (2) of Section 4 of the said

Act. There is no such evidence brought on record.

5] In view of above, there is no substance in these

petitions. The same are dismissed.

6] If any amount is deposited by the petitioners, the

same is allowed to be withdrawn by the respondent nos. 3 in both

petitions.

JUDGE

Rvjalit