Calcutta High Court (Appellete Side)
Hooghly Infrastructure Pvt. Ltd vs Sri Ram Okil Prasad & Ors on 4 March, 2025
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA 22777 of 2024
Hooghly Infrastructure Pvt. Ltd.
Vs
Sri Ram Okil Prasad & Ors
For the Petitioner : Mr. Soumya Majumder,
Mr. Rabi Kumar Dubey,
Mr. S.K. Singh.
For the State : Ms. Sanghamitra Nandy,
Mr. Aviroop Bhattacharya.
Hearing concluded on : 10.02.2025
Judgment on : 04.03.2025
SHAMPA DUTT (PAUL), J. :
1. The present writ application has been preferred praying for
direction upon the respondents to set aside and cancel the order
dated 21.05.2024 passed by the Appellate Authority.
2. The petitioner’s case is that the Respondent No. 1 was engaged
in Petitioner Company as a Badli worker on 23.03.1976. At that
time qualifying period and days for provident fund membership
was 120 days within a period of six months from 10.08.1974 to
Page 2
30.01.1981. However, as the applicant did not work
continuously even 120 days within 6 months from 23.03.1976 to
1979, he could not be made member of the Employees Provident
Fund Scheme. The Respondent No.1 got his provident fund
membership only on 23.04.1980. The Respondent No.1 was
made special badli on 01.04.2002 and attained his age of
superannuation on 13.02.2010. The respondent no.1 had been
working as badli worker from 23.03.1976 till the date of being
made special badli i.e., from 31.03.2002 and he superannuated
on 13.02.2010.
3. On being retired the Respondent No.1 had been paid all his
retiral benefits inclusive of gratuity amounting to Rs. 27,770.96
and after receiving his dues on all accounts, the respondent no.1
sent form “I” on 13.11.2013 and applied for gratuity in Form N
before the respondent no.3 on 20.12.2013 alleging less payment
to the tune of Rs. 91,254.04p.
4. Ultimately the Controlling Authority passed an order dated
26.12.2016, when after considering all the materials on record,
he was pleased to dismiss the application of the respondent no.
1 claiming Gratuity. While passing the order dated 26.12.2016,
the Controlling Authority specifically observed that in spite of all
opportunities being forwarded to him, the respondent no. 1
Page 3
failed to establish his claim for being eligible to be entitled for
gratuity payment.
5. Being aggrieved by and dissatisfied with the order passed by the
Controlling Authority, the respondent no.1 filed an appeal before
the Appellate Authority under the Payment of Gratuity Act,
1972, Barrackpore, North 24 Parganas on 17.03.2017, on the
grounds as stated therein.
6. The petitioner was served with order dated 21.05.2024 under
cover of notice dated 03.07.2024 in Form S. While passing the
order dated 21.05.2024 the appellate authority, inter alia,
reversing the order passed by the Controlling Authority,
declared the respondent no. 1 to be entitled to gratuity for 34
years along with interest @ 10%, totaling to a sum of Rs.
1,33,358.85p i.e., Rs. 79,053.49p+ 54,305.36 р.
7. It is stated that while passing the order dated 21.05.2024 the
appellate authority, illegally shifting the onus to prove that
respondent no.1 did not work for 240 days in each year of his
alleged tenure of service upon the petitioners and miserably
failed to appreciate that it is impossible to prove a negative, i.e.,
the years respondent no. I did not work for 240 days in each
year.
Page 4
8. The said order has been challenged in the present writ
application.
9. The Appellate Authority in disposing of the appeal held as
follows :-
“………. In the instant case, the appellant had
discharged his initial onus by producing whatever
documents available with him and in his custody to
establish that he was on employment for 240 days in a
year. The respondent company was in possession of the
best evidence which he could not produce. So, an
adverse inference may be drawn in view of the failure
on the part of the respondent to produce the original
service record even on being asked by the Ld.
Controlling Authority (vide Mahant Shri Srinivas
Ramanuj Das Vs Surjanarayan Das & Anr; AIR 1967 SC
256). While the respondent who is statutorily bound to
maintain the attendance registers of his employees fails
to produce the same, the appellant, being a jute mill
worker and placed in a weaker position to his employer
is hardly expected to preserve the details of his service
records after expiry of a long period of time from his
retirement.
Furthermore, it is pertinent to cite here the
Ruling of the hon’ble High court at Calcutta in the matter
of WPA 19017 of 2023 and WPA 23207 of 2023. In the
instant judgement the Hon’ble High Court has
deliberated on the question of the employer obtaining
acknowledgement of the receipt of the amount of
gratuity paid to the employee in derogation of the
Payment of Gratuity Act, 1972 and whether such an
acknowledgement can be treated as waiver of the right
of the employee to receive gratuity as per the provision
of the said Act. This ruling has pronounced that it is well
settled that right to receive gratuity is a recognised legal
right, which cannot be curtailed except in circumstances
mentioned in Section 4(6) of the said Act.
Page 5
Given above, drawing an adverse inference, I
am left with no other option but to hold that the
respondent employer failed to establish that the
appellant workman had not rendered continuous service
from 23/03/1976 to 13/02/2010 in his company.
Hence, I am of the considered opinion that the decision
of the Controlling Authority under challenge is not in
order. Thus, it is ordered that the decision of the Ld.
Controlling Authority is reversed and the appellant
workman is entitled to get gratuity for the period of 31
years of his service life i.e. from the year of becoming
member of PF till his superannuation.
It is further observed from the record that the
gratuity payment (Rs. 27,770.96) was made by the
respondent company itself on 26/10/2013 i.e. after 3
years 8 months (approx) of the appellant’s retirement.
So, it is not well supported by any evidence that the
respondent company was ready to pay his due gratuity
within the time frame of the provision of the Act. Hence,
it is opined that the interest on the due gratuity as
claimed by the appellant is justified and he is entitled to
get his due gratuity along with the interest at the
prescribed rate under the Act upto the date of issuance
of direction of the Controlling Authority dated
26/12/2016. Hence, I am of the opinion that as per
Sub-section 3A of Section 7 of the Payment of Gratuity
Act, 72 the appellant is entitled to simple interest @ 10%
per annum on his due gratuity. Calculation of interest is
detailed below:-
Due Rate of Date of Period under Interest
gratuity interest passing reference as accrued
(Rs.) order by per Sec. 7(3A) (Rs.)
the
Controlling
Authority
79,053.49 10% 26.12.2016 13.02.2010 – 54,305.36
26.12.2016Therefore, it is held that the appellant is entitled
to gratuity amounting Rs. 79,053.49+ Rs. 54,305.36 =
Page 6Rs. 1,33,358.85 (Rupees One lakh thirty-three thousand
three hundred fifty-eight and eighty-five paisa) only
inclusive of admissible interest.
The instant appeal is thus disposed of with a
direction upon the Ld. Controlling Authority (respondent
No. 1) to issue Form S under sub-rule (6) of Rule 18 of
the West Bengal Payment of Gratuity Rules, 1973 to the
respondent company (respondent no. 2) specifying the
amount of gratuity payable and directing payment
thereof to the appellant workman.
Sd/-
Appellate Authority
Under the Payment of Gratuity Act, 1972
Barrackpore, North 24 Parganas”
10. From the materials on record the following is evident:-
(i) The respondent no. 1 was employed with the petitioner
company as a ‘badli worker’ from 23.03.1976 till
13.02.2010 (34 years).
(ii) The respondent no. 1 became a member under the
Provident Fund Scheme in the year 1980.
(iii) The job for 34 long years involved working in place of
permanent workman/employee in their absence on leave
or otherwise.
(iv) In support of his case of the period of employment, the
employee has produced and exhibited a copy of his ESI
Card, his superannuation notice and his wage slip before
the tribunal, which was duly considered.
(v) The petitioner company did not produce any documents
inspite of the fact that it is the duty of the employer to
Page 7
maintain all documents relating to its employee and other
matters, to be maintained and preserved as per law.
11. The petitioner has relied upon the following the judgments:-
i. Calcutta Jute Manufacturing Company vs The State
of West Bengal and Anr., in WP 12342(W) of 2015,
decided on 15.05.2018, Calcutta High Court.
ii. Sk. Ekbal @ Ekbal Sk. vs The State of West Bengal &
Ors., in WPA 23514 of 2023, decided on 03.04.2024,
Calcutta High Court.
iii. The Ganges Manufacturing Company Limited vs State
of West Bengal & Ors., in FMA 882 of 2024, decided
on 21.11.2024, Calcutta High Court.
Wherein the courts held that duty to produce
documents to show continuous service lies on the writ
petitioner.
12. Section 25D of the Industrial Disputes Act, lays down:-
“25D. Duty of an employer to maintain muster-
rolls of workmen.- Notwithstanding that workmen
in any industrial establishment have been laid-off,
it shall be the duty of every employer to maintain
for the purposes of this Chapter a muster-roll, and
to provide for the making of entries therein by
workmen who may present themselves for work at
the establishment at the appointed time during
normal working hours.”
Page 8
13. In Ranbir Singh vs S.K. Roy, Chairman, Life Insurance, in
Misc. Application No. 1150 of 2019, decided on 27 April,
2022, the Supreme Court held:-
“………..25. It is settled principle of law that while
considering the order/judgment of Constitutional
Court, this Tribunal is required to keep in mind
entire spectrum of the orders as well as
background of the case. It is not proper to cull out a
single para or a sentence from the order/judgment
so as to defeat the very purpose of the order so
passed by Hon’ble Supreme Court. If the orders
dated 11/5/2018, 7/9/2018 and 10/9/2018 are
taken into consideration, it is crystal clear that
claims of all such workmen and Union/s who
worked as Badli workers during the period from
20/5/1985 to 4/3/1991 are required to be
considered by this Tribunal. Although I am in full
agreement with the submission made on behalf of
the PART B Management/LIC that initial onus is
always upon the workmen concerned to prove
that they were in the employment of the
Management at the relevant time, however
this Tribunal cannot ignore the fact that UC
has not filed on record any document/record
relating to employment of various workmen
rather has simply taken a plea that same
being old record is not traceable.” 22 The
Dogra Report noted that LIC had admitted that 321
workers were found to be eligible for absorption in
terms of the Srivastav Award. The report found
fault with LIC for making contradictory claims that
321 workers were eligible for absorption when the
records of workers were allegedly old and not
traceable. The Dogra Report drew an adverse
inference against LIC for having failed to
maintain the records in pursuance of the
burden cast upon it by Section 25-D of the ID
Act, particularly when the reference was pending
Page 9since 1991. Paragraph 29 of the report is extracted
below:
“29) During the course of arguments as well as in
the reply filed on behalf of the Management/LIC, it
is clear that Management has admitted that till
date 321 Nos. of employees were found to be
eligible in terms of the Award and they were
considered eligible for absorption. It is not
understandable to this Tribunal as to what were
the basis for the Management/LIC for coming to the
conclusion that only 321 Nos. of
workmen/employees were found to be eligible and
covered by the Award of CGIT in ID case
No.27/1991, when the Management has come up
with a plea that record relating to the workmen
being old record is not traceable. It is worthwhile
to mention here that Section 25-D of the ID
Act specifically provides that it is the duty of
every Employer to maintain a muster roll and
to provide for the making of entries therein by
the workmen who may present themselves for
work at the establishment. This Tribunal has to
keep in mind a vital fact that since the reference
bearing ID No.27/1991 is pending before various
Courts since 1991, the Management/LIC was/is
required to keep the record in safe custody
when the case of such a huge magnitude was
PART B pending before the Courts. In such
circumstances, this Tribunal is constrained to
draw adverse inference against the
management.” 23 Based on the above
hypothesis, the report proceeded to decide “prima
facie” the claims of the Unions and individual
workers. While taking up the claims made by the
All India Life Insurance Employees Association and
its affiliate, Life Insurance Employees Association,
Delhi, the report notes that 6998 claims had been
filed (as contained in Annexure A). Upon scrutiny,
LIC drew the attention of the CGIT to the fact that
Page 103592 duplicate entries were found in the claims
which were submitted (as contained in Annexure A-
1). Noting that the “Unions have not seriously
disputed the same”, the Dogra Report concludes
that “such claimants are to be given benefit of
absorption only once”. The Dogra Report also notes
that workers who had started working beyond the
cut-off date of 4 March 1991 would not be covered
in the enquiry. This observation in the Dogra Report
was in view of the order of this Court in the
contempt proceedings arising out of the review
of TN Terminated Employees Association (supra) on
7 September 2018, which had specifically observed
that whether the benefit of the Srivastav Award
should be given to those who had been engaged as
badli workers after 4 March 1991 was a matter for
interpretation by this Court. Hence, for the time
being, CGIT had been directed to limit its enquiry
only to the claims for the period between 20 May
1985 and 4 March 1991 (as contained in Annexure
A-2). In this context, the Dogra Report held that
those workers who had commenced work after 4
March 1991 would not be covered by its enquiry.
In State of Haryana & Ors. etc. etc. v. Piara Singh
& Ors. etc. etc., (JT 1992(5) S.C. 179), the Supreme
Court indicated how regularization of
adhoc/temporary employees in Government and
Public Sector Undertakings should be effected.
While PART D laying down the guidelines in this
behalf, this court observe in paragraph 43 as
under:-
“The normal rule, of course, is regular
recruitment through the prescribed agency
but exigencies of administration may
sometimes call for an adhoc or temporary
appointment to be made. In such a situation,
effort should always be to replace such an
adhoc/temporary employee by a regularly
selected employee as early as possible.
Page 11
Such a temporary employee may also compete
along with others for such regular
selection/appointment. If he gets selected,
well and good, but if he does not, he must give
way to the regularly selected candidate.
The appointment of the regularly selected
candidate cannot be withheld or kept in
abeyance for the sake of such an
adhoc/temporary employee.”………”
14. In the present case, the respondent no. 1 has served
continuously as a badli/casual worker for 34 years in
permanent posts and has produced documents in support.
The petitioner/company was bound to produce the
documents as required to be maintained under Section 25D
of the Act. (Ranbir Singh vs S.K. Roy, Chairman, Life
Insurance, (Supra))
15. The employee has now superannuated after 34 years and if
such conduct of the employer is ignored, there shall be clear
abuse of the process of law.
16. The benefit is under a beneficial legislation and an employee who
has admittedly worked for 34 years and has rendered his
service towards the work to be carried out by a regular employee
thus will have definitely put in work for the number of days
required to make him entitled to such benefits. He even is a
member of the PF scheme.
Page 12
17. The facts as seen proves that the employee has provided
selfless service towards permanent posts and as such has
carried out work of a regular employee for the period
required each year to entitle him to the said benefits, which
led to his employment for 34 years.
18. Having done so, the least that he is entitled to, are the retiral
dues (social security) which includes gratuity and such benefits
should be made to the employee without any hindrance as the
employee has given his whole life to serve the company.
19. Thus the order under challenge being in accordance with law
requires no interference by this Court.
20. WPA 22777 of 2024 stands dismissed.
21. All connected applications, if any, stand disposed of.
22. Interim order, if any, stands vacated.
23. Urgent Photostat certified copy of this judgment, if applied for,
be supplied to the parties, expeditiously after complying with all
necessary legal formalities.
[Shampa Dutt (Paul), J.]
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