M/S Alvas Institute Of ... vs The State Of Karnataka
2022 Latest Caselaw 9809 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF JUNE, 2022

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

       WRIT PETITION NO.48825 OF 2016 (L-PG)

BETWEEN:

M/S ALVAS INSTITUTE OF
ENGINEERING AND TECHNOLOGY,
MIJAR, MOODABIDRI - 574 225,
D.K. DISTRICT.
REPRESENTED BY ITS PRINCIPAL           ... PETITIONER

(BY SRI VIJAYA KRISHNA BHAT M., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA,
       REPRESENTED BY ITS SECRETARY,
       DEPARTMENT OF LABOUR,
       VIDHANA SOUDHA,
       BENGALURU - 560 001.

2.     THE ASSISTANT LABOUR COMMISSIONER,
       MANGALURU DIVISION,
       MANGALURU - 575 001.

3.     SRI SRISHA KALKOOR M.
       S/O M.PADMANABHA KALKOOR,
       MAJOR,
       R/AT KALKOOR COMPOUND,
       HUTHUKRE, CHAR POST,
       KARKALA TALUK,
       UDUPI DISTRICT - 576 112.    ... RESPONDENTS
                               2




(BY SRI RAMESH GOWDA, AGA FOR R1 AND R2;
    SRI K.PRASANNA SHETTY, ADVOCATE FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:


                           ORDER

Sri.Vijaya Krishna Bhat.M., learned counsel for

petitioner has appeared through video conferencing.

Sri.Ramesh Gowda, learned AGA for respondents 1

& 2 and Sri.K.Prasanna Shetty, learned counsel for

respondent No.3, have appeared in person.

2. The brief facts of the case are quite simple.

It is stated that the third respondent was appointed

by the petitioner - Institution as a Senior Lecturer in the

department of Electronics and Communication on

17.12.2008. Subsequently the third respondent left the

service on 31.10.2013. It is said that the third respondent

worked with the petitioner - institution for a period of 4

years 10 months and 15 days and his last drawn wage was

Rs.45,903/- (Rupees Forty-Five Thousand and Nine

Hundred and Three only).

It is averred that the third respondent approached

the Assistant Labour Commissioner - the second

respondent seeking payment of gratuity under Section 4 of

the payment of Gratuity Act, 1972 (for short 'the Act'). It

was contended by him that he has completed 5 years of

continuous service with the petitioner - Institution. The

petitioner - Institution appeared and contended that the

third respondent has not completed continuous period of

service of 5 years as required under Section 4 of the Act

and therefore he is not eligible for payment of gratuity.

The Assistant Labour Commissioner - the second

respondent considered the matter and passed an order on

04.11.2015, thereby allowed the application filed by the

third respondent and directed the petitioner - Institution to

pay a total sum of Rs.1,57,902/-(Rupees One Lakh Fifty

Seven Thousand Nine Hundred and Two only) including

interest at the rate of 10% per annum.

Aggrieved by the said order, the petitioner -

Institution filed an appeal before the Appellate Authority

and Deputy Commissioner Labour Commissioner, Hassan

Region, Hassan in Appeal No.DLCH:PGA:SR:39/2015-16.

The Appellate Authority after hearing the matter rejected

the appeal vide order dated:14.07.2016. It is this order

which is challenged in the present Writ Petition on various

grounds as set out in the memorandum of Writ Petition.

3. Learned counsel for petitioner and respondents

have urged several contentions.

To substantiate the said contentions, learned counsel

for respondent placed reliance on the following decisions:

     1. LAWS     (MAD)   1996     (6)   84   -     METTUR
          BEARDSELL LTD Vs. REGIONAL LABOUR
          COMMISSIONER.





      2. 1989 (4) SCC 443 - SURENDRA KUMAR
           VERMA      Vs.     CENTRAL        GOVERNMENT
           INDUSTRIAL TRIBUNAL.

3. LAWS (APH) 1979 (11) 7 - P.RAGHAVULN, PASUPATL RAGHAVULU Vs. ADDITIONAL LABOUR COURT, A.P., AT HYDERABAD

4. Heard the contentions urged on behalf of the

parties and perused the Writ papers with care.

5. The sole question is whether the third

respondent is entitle for Gratuity?

6. The facts have been sufficiently stated. The

issue involved in the Writ Petition falls on a very narrow

compass. The issue relates to continuous service, under

the provision of Payment of Gratuity Act, 1972. Hence,

reference is invited to Section 2 and 2A of the Payment of

Gratuity Act, 1972.

Payment of Gratuity Act, 1972

2. Definitions.- In this Act unless the context otherwise requires,-

(c) "continuous service" means continuous service as defined in Section 2-A.

2-A. Continuous service.- For the purpose 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 [***] 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;

(2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year of six months, he shall be deemed to be in continuous service under the employer-

(a) for the said period of one year, if he employee during the period of twelve calendar months

preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -

(i) one hundred and ninety days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and

(ii) two hundred and forty days, in any other case;

(b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than

(i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week;

and

(ii) one hundred and twenty days, in any other case;

Reverting to the facts of the case, the third

respondent contended that he has worked for more than

240 days in the fifth year; rendered continuous service of

five years and hence sought for payment of gratuity.

While addressing argument, learned counsel

Sri.Prasanna Shetty vehemently contended that

admittedly, the third respondent has served for 4 years 10

months & 15 days and 10 months 15 days of service is

definitely more than 240 days. Therefore, as on the date of

his resignation, he had rendered continuous service of five

years. Hence, he sought to urge that the third respondent

is justified in claiming the gratuity and the Authorities are

justified admitting his claim.

By way of answer to this point, it has been urged on

behalf of petitioner - Institution that the third respondent

has voluntarily resigned on 31.10.2013. Counsel Sri.Vijay

Krishna Bhat.M, has drawn the attention of the Court to

Section 2-A (1) and (2) of the Act and urged that the third

respondent cannot claim benefit of Section 2A(2) of the

Act, since the eligibility criteria is not fulfilled.

I have considered the contentions urged on behalf of

respective parties and also perused the relevant provisions

of the Act with utmost care.

The question/point, however, is, though plain

enough, a little more difficult and requires to be treated at

greater length.

It is true that the third respondent was appointed on

17.12.2008 but he resigned voluntarily on 31.10.2013.

After resignation, he claimed gratuity.

Suffice it to note that Section 4 of Payment of

Gratuity Act, 1972 postulates the payment of gratuity on

the termination of employment due to the reasons stated

therein provided the requirement of period of service is

satisfied. It is needless to say that Section 4 of the Act

provides that gratuity shall be payable to an employee on

the termination of his employment after he has rendered

continuous service for not less than five years.

Under Section 2-A (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 [***] 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. Section 2-A(2) reveals that where an employee

(not being an employee employed in a seasonal

establishment) is not in continuous service within the

meaning of clause (1), for any period of one year or six

month, shall be deemed to be in continuous service under

the employer ......

Under Section 2A (1), uninterrupted service includes

interrupted service which may be interrupted on account of

sickness, accident, leave, absence from duty without

leave. To claim benefit of deemed service, the interruption

should be on account of sickness, accident, leave, absence

from duty without leave. But in the present case, the third

respondent has resigned voluntarily. The interruption is

not on account of reasons as enumerated under Section 2

A (1) of the Act so as to claim that he is deem to be in

continuous service and claim the benefit of Section 2A (2)

of the Act. Hence, the third respondent cannot contended

that he has rendered service continuously for five years.

Further, it is not the case of the third respondent that he

was in interrupted service so as to invoke Section 2A (2) of

the Act.

Sri.Prasanna Shetty., learned counsel for the third

respondent has drawn the attention of the Court to the

decision of the Madras High Court. I have perused the

decision with care. It would be relevant to notice that in

the said judgment, the distinction between 2A (1) and

2A (2) of the Act and the eligibility criteria fixed in Section

4 of the Act has not been gone into.

The Authorities have failed to have regard to

relevant considerations and disregarded relevant matters.

In my considered opinion, the orders passed by the

authorities are unsustainable in law.

Resultantly, Writ of Certiorari is ordered. The order

dated:14.07.2016 passed by the Appellate Authority under

payment of Gratuity Act, 1972 and the Deputy Labour

Commissioner, Hassan Region, Hassan in proceedings

No.GPÁDºÁ/¦fJ/J¸ïDgï-39/2015-16 vide Annexure-D

and also Order dated:04.11.2015 passed by The Assistant

Labour Commissioner, Mangaluru Division in proceedings

No.¦fJ/J¸ïDgï-71/2014 vide Annexure-C are quashed.

The writ petition is allowed.

Sd/-

JUDGE GVP