Calcutta High Court (Appellete Side)
Jay Chandar Shah vs The State Of West Bengal & Ors on 14 July, 2025
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA 9627 of 2025
Jay Chandar Shah
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Anirban Kar,
Mr. Munshi Ashiq Elahi,
Mr. Rohit Mahata.
For the Private Respondent : Mr. Soumya Majumder, Sr. adv.,
Ms. Amrita Pandey,
Ms. Sneha Singh.
Hearing concluded on : 07.07.2025
Judgment on : 14.07.2025
Shampa Dutt (Paul), J.:
1. The writ application has been preferred by the petitioner
workman praying for setting aside of the order dated 17.03.2025
passed by the Appellate Authority under the Payment of Gratuity
Act, 1972.
2. Vide the said order under challenge the Appellate Authority
affirmed the order of the Controlling Authority dated 22.08.2022
in Gratuity Case No. G-51/18. The Controlling Authority while
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considering the prayer of the petitioner for his gratuity held as
follows:-
“…………In the present case the workman 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 employer is 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
employer to produce the original service record. While
the employer who is statutorily bound to maintain the
attendance registers of his employees fails to produce
the same, a poor jute mill worker being in a weaker
position to his employer is not expected to preserve the
details of service records after his retirement.
Given above, drawing an inverse inference, I
am left with no other option but to hold that the
employer had failed to establish that the workman had
not rendered continuous service from 16.04.1980 to
01.07.2018 in the O.P company, they could only
establish that he had worked for less than 240 days for
15 years.
Moreover, the employer himself admitted that
the workman, Jay Chandar Shah is entitled for gratuity
of 9 years. The employer had not paid the said amount
3of gratuity to the workman nor had he deposited with
the Controlling Authority such amount as he admitted to
be payable by him as gratuity as per sec 7(4) of the
The amount of entitled gratuity of the worker namely
Jay Chandar Shah is determined as follows:-
Date of Joining 16.04.1980
Date of superannuation 01.07.2018
Last drawn wages Rs. 470.68/- per day
Period of service 38 years-15 years= 23
years
Amount of gratuity Rs. (470.68x15x23)=
1,62,385/-
The O.P failed to make even part payment of gratuity
amount of Rs. 1,62,385/- to the applicant due to no fault of the
applicant. Further, O.P had not obtained any permission in
writing from the Controlling Authority for any delayed payment
Hence, I am of the opinion that as per Sub-Section 3A
of Section 7 of the Payment of Gratuity Act, 1972, the workman
is entitled to simple interest @ 10% per annum on his gratuity
amount. Calculation of interest is detailed below:-
Due Rate of Period Interest
Gratuity Interest Accrued (Rs.)
(Rs.)
1,62,385/- 10% 01.08.2018 to 65,710/-
17.08.2022
The applicant, Jay Chandar Shah, is, therefore,
entitled to Rs. 2,28,095/- (Rs. 1,62,385/- + Rs. 65,710/-). The
4OP company M/s Murlidhar Ratanlal Exports Ltd, Unit: India
Jute Mill, Serampore, Dist- Hooghly, Pin-712201 is hereby
directed to pay the applicant, Jay Chandar Shah Rs.
2,28,095/- (Two Lakh Twenty Eight Thousand Ninety Five)
only as per sub-section 3A of section 7 of the payment of
Gratuity Act 1972 within 30 days from the date of receipt of the
direction in Form ‘R’ along with this findings.”
3. While deciding the said claim of gratuity, the Controlling
Authority held that the company could establish that the
employee worked for less than 240 days for 15 years.
4. Thus, the Controlling Authority granted gratuity by deducting 15
years from the total period of service being 38 years and granted
gratuity as applicable for 23 years.
5. The relevant finding for deducting the said period of 15
years is as follows:-
“…………However, from the original leave register it was
only seen that the applicant had not completed 240 days
of work/calendar year for the years 1989, 1991-1999,
2001-2005 i.e. 15 years. It contained no information of
the years 1980-1988, 1990, 2000, 2006-2018 (total 23
years). The leave register, a hardbound record of the
number of days a worker worked for a year contained LB
number, name & number of days worked by each PF
holding worker during the year & leave accumulated over
the years. Some of these original registers maintained
year wise were shown by the OP & there was no
evidence to doubt that they had not been maintained over
the years & had suddenly been manufactured to suit the
5needs of the OP. The applicant failed to produce any
documents to prove that he had ever asked the OP about
the number of days he has worked or his leave, he did
not contest the content of any document maintained by
the OP related to his tenure; the applicant could not even
submit wage slips, he has one which means he was
given others but has lost them which makes if difficult on
his part to establish his full working tenure………….”
6. Being aggrieved the petitioner preferred an appeal before the
Appellate Authority under the Act. The Appellate Authority
affirmed the findings of the Controlling Authority.
7. Being aggrieved with the order of the Appellate Authority the
present writ application has been preferred.
8. From the materials on record, the following is evident:-
i. The petitioner joined the respondent no. 4 company in the
weaving department having L.B. No. 18455 on 16th April,
1980.
ii. He retired on 1th July, 2018, after putting in 39 years of
continuous service. Photocopy of the Identity Card of the
petitioner shows his date of joining as 16.04.1980 and he
was enrolled under the provident fund on 16.08.1989
(annexure P1).
9. A hand written attendance sheet, a copy of which has been
marked as annexure P6 shows the number of days of work put in
by the workers.
10. The said documents show the number of days of work put in by
the petitioner in the following years as:-
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Year Days (work) 1989 20 1991 119 1992 53 1993 18 1994 9 1995 38 1996 42 1997 33 1998 76 1999 NIL (206) 2001 NIL (191) 2002 NIL (157) 2003 NIL (73+w/s 132) 2004 NIL (205+w/s17) 2005 12 DW (236)
11. The Controlling Authority found that the employer who has not
challenged the orders of the authorities could not provide any
such information for the years from 1980-1988, 1990, 2000,
2006-2018 and held the same in favour of the
petitioner/workman.
12. Section 2(f) of the Employees Provident Funds Act, defines
the word “employee”:-
“Section 2 (f) “employee” means any person who is
employed for wages in any kind of work, manual or
otherwise, in or in connection with the work of an
establishment, and who gets, his wages directly or
indirectly from the employer, and includes any
person,–
(i)employed by or through a contractor in or in
connection with the work of the establishment;
(ii)engaged as an apprentice, not being an apprentice
engaged under the Apprentices Act, 1961, or under
the standing orders of the establishment;”
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13. Admittedly, the petitioner has rendered continuous service for not
less than 5 years. It appears from the order of the Controlling
Authority, which was affirmed by the Appellate Authority that the
Controlling Authority on going through the “original” leave
register found that the petitioner had not completed 240 days of
work/calendar year for the years 1989, 1991-99, 2001-05 that is
for 15 years. Such copy of the said hand written attendance
register has been annexed to the writ application and discussed
above, was held to be the “original” attendance register.
14. As the respondent company could not produce any information
for the period from 1980-1988, 1990, 2000, 2006-2018 (total 23
years), the Controlling Authority relying upon the judgment of
the Supreme Court in M/s. Sriram Industrial Enterprises Ltd.
vs Mahak Singh & Ors. reported in AIR 2007 SC 1370, held
that as the employer did not produce any evidence, the Court was
entitled to draw adverse inference against the employer and as
such the Controlling Authority held that there being no
documents to show as to whether the petitioner had put in less
than 240 days of work for the said 23 years, adverse presumption
could be drawn that the petitioner had put in 240 days of work in
a year, and granted gratuity as per the Act for the said period of
23 years.
15. Admittedly, the petitioner was in employment with the
respondent company on and from 16.04.1980 in the weaving
department and superannuated on 01.07.2018. The petitioner
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worked continuously for 39 years with the opposite party
company. These facts are not denied by the company.
16. The only defence that the company came up with is that, for 15
years as specified by the Controlling Authority, copies of hand
written attendance register was produced, which prima facie
showed that the petitioner had put in less than 240 days of work
in a year for the said period.
17. And as the company did not produce any documents for the 23
years, the authority on drawing adverse interference was of the
view the benefit of doubt should go to the workman and held that
for the 23 years he had put in 240 days of work and calculated
gratuity accordingly.
18. The petitioner has relied upon the following judgments in
support of his case:-
a) H. D. Singh vs Reserve Bank of India & Ors., (1985) 4 SCC
201.
b) Hooghly Infrastructure Pvt. Ltd. vs Sk. Alam Ismail & Ors.,
2025 SCC OnLine Cal 2376.
c) Food Corporation of India vs Union of India & Ors., in WPA
3623 of 2025, decided on 19.05.2025, Calcutta High Court.
d) Sriram Industrial Enterprises Ltd. Mahak Sing and Ors.,
(2007) 4 SCC 94.
19. Copy of the examination in chief of the company before the
Controlling Authority has been produced. It appears from the
said evidence of the company that initially the company
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functioned under the name “The India Jute Industries Limited”
up to the year 1993. In 1994 the Hooghly Mills Company Ltd.
took over the mill and the petitioner became an employee of the
said company.
20. Subsequently, the present respondent/company Murlidhar Ratan
Lal Exports Limited took over the mill in 2007.
21. It is admitted by the representative of the company that “the
office cum labour bureau continue to run on the basis of available
records of the workman/documents/paper etc.”, left behind by the
Hooghly Mills Company Ltd.
22. Paragraph 3 of the examination in chief is relevant and is
reproduced here:-
“C) Jay Chandra Shah, L.B. No. 18455, superannuated
from the services of the company on 01/07/2018. His
date of joining on 16/04/1980. He was made P.F.
Member from 16/08/1989. The long gap from date of
joining to P.F. Membership is due to shortages of
the number of days he worked in a year (i.e.
120/240 days) which was supposed to be
completed for entitlement of P.F. Membership. It is
found that Jay Chandra Shah, has completed 120/240
days work in the year i.e. 16/08/1989 and was
enrolled as P.F. Member with effect from 16/08/1989
(i.e. not entitle P.F. Membership from date of
Joining 16/04/1980 to date of P.F. 16/08/1989 =
09 Years) Documents in supports of his P.F.
Membership with effect from 16/08/1989 is attached
herewith (Marked as Annexure “A”.)”
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23. Taking into consideration the evidence of the said representative
of the company who was examined on behalf of the company, it
appears that as per the company’s version the petitioner was
given PF membership in 1989, as since his joining on 16.04.1980
till 31.12.1988, the petitioner apparently had not put in 240 days
of work in a year.
24. Considering, the said stand of the company, if the PF
membership was given to the petitioner on and from 16.08.1989,
it can be presumed that in the year 1989, the petitioner had put
in 240 days of work, as he was provided PF membership on the
said date.
25. The document of PF membership is part of the record. There is
nothing on record to show, nor is there any evidence to show that
the weaving/fishing department was ever closed for any period
during the tenure of the petitioner.
26. Though Jute is a seasonal product, the by products are
processed throughout the year. There is nothing on record to
show that the weaving department or the fishing department
where the petitioner worked was closed down occasionally in a
year.
27. As such it can be safely presumed that the department where the
petitioner worked was functional throughout the year.
28. It is admitted by the company that part of the records went
missing when the company was transferred from one hand to
another.
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29. Copies of attendance register produced are not in the
prescribed format and such hand written attendance sheets
are prepared to deprive a workman of his legitimate dues by
showing the number of working days less than the required
number of days.
30. It is also a practice to not provide work for the required number
of days with the intention of, once again depriving a workman or
an employee from his legitimate dues.
31. Admittedly, the petitioner has put in work for the requisite
number of days in the year 1989. Which as per the statement of
the company on affidavit earned him the provident fund
membership. As such the said admission on oath, give rise to the
presumption that the workman put in 240 days a year
continuously till his superannuation.
32. Hand written attendance sheets produced by the company if
believed to be maintained by the company appear to be prepared
for the purpose of depriving the workers of their legitimate dues
under the beneficial legislation.
33. Accordingly, taking into consideration that the petitioner was
given the membership of his provident fund account in the year
1989, it can be presumed that he has put in the requisite
number of days in a year continuously for more than 5 years on
and from 1985 till his superannuation, which makes him eligible
for gratuity under the Act.
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34. On the said findings, this Court is of the view that the petitioner
is entitled to gratuity for the period of 30 years. Though it is
on record that he joined in the year 1980, but giving benefit to
the company that the PF membership was granted in the year
1989, when the petitioner met the requirements of having put in
240 days of work in a year, this Court directs that gratuity in
respect of the petitioner be calculated on and from 1989 till his
superannuation in 2018.
35. The order of the Controlling Authority dated 22.08.2022 and the
Appellate Authority dated 17.03.2025 passed in Gratuity Case
No. G-51/18, are modified accordingly.
36. The matter is remanded to the Controlling authority who
shall calculate the amount of gratuity in respect of the
workman in this case by taking the period from 1989 to
2018 (till his date of superannuation) along with interest at
the applicable rate.
37. The Controlling Authority shall write a fresh judgment showing
fresh calculation, keeping in mind the observations of this
Court, within 30 days from the date of this order specifying the
date by which payment is to be made.
38. WPA 9627 of 2025 stands disposed of.
39. All connected application, if any, stands disposed of.
40. Interim order, if any, stands vacated.
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41. 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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