Madhya Pradesh High Court
The Regional Manager vs Shri Banwari Lal Patel on 8 August, 2025
1 WP-31712-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF AUGUST, 2025
WRIT PETITION No. 31712 of 2023
THE REGIONAL MANAGER
Versus
SHRI BANWARI LAL PATEL
Appearance:
Shri Abhinav Sunil Kherdikar - Advocate for the petitioner.
Shri Rajas Pohankar - Advocate for the respondent No.1.
ORDER
The present petition has been filed challenging the order of the
appellate authority Annexure P-7, whereby the appellant authority under the
Payment of Gratuity Act has reversed the order of Controlling Authority
dated 30.05.2023 (Annexure P-4) and directed to ensure payment of whole
amount of gratuity with interest to the present respondent, who was appellant
therein.
2. The dispute in the present case relates to the claim of the respondent
employee to gratuity from the petitioner-bank. The respondent was employee
of the petitioner-bank and the dispute in the present case relates to whether
the respondent is entitled to count the continuous service with effect from
1985 till date of ultimate retirement which is on 30.09.2015. The bank has
paid the gratuity to the respondent taking his services to have started from
22.12.2008, which was the date of regularization of services of the
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39
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respondents and not from 1985 from which date the respondent claimed to
be working with the bank as daily rated employee.
3. Counsel for the bank has argued that the respondent employee has
failed to establish that he was in continuous service and that continuous
service is defined under Section 2 (c) of Payment of Gratuity Act, 1972 (for
short ‘Act, 1972’) whereby continuous service means service as defined in
Section 2-A. By further placing reliance on Section 2-A of Act of 1972, it is
contended that as per Section 2-A(2)(a)(ii) the employee has to show his
working for two hundred and forty days in a year and as the respondent
failed to establish that he had worked for two hundred and forty days in each
year from 1985 to 2008 before he had been regularized, therefore, the said
period could not be counted as continuous service for the purpose of
calculation of length of service to pay gratuity.
4 . Per contra, it was argued by learned counsel for the respondent-
workman that the respondent-workman was employed with the bank from
1985 and there was no specific denial to this fact. Even otherwise, the
respondent had instituted proceedings for regularization and the matter was
settled before the Labour Commissioner in pursuance to which settlement
took place between the bank and the workman. In terms of the settlement,
order Annexure P-1 was issued on 18.12.2008, whereby the respondent was
initially regularized as part time employee of the bank on payment of one-
third of salary payable to regular employee. Later on, the services were
regularized in the year 2011 and the respondent started to draw full salary as
a regular employee in place of one-third salary and thereafter he is retired as
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39
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a regular employee. It is argued by learned counsel for the workman that
once the workman was employed with the bank prior to he being
regularized, therefore, the bank must be in possession of all the records that
whether the workman has worked for 240 days in each year, or not. In such
circumstances, in absence of the bank coming out with any such record, no
error has been committed by the appellate authority in holding the
respondent to count his length of services for the purpose of payment of
gratuity from date of initial engagement as daily rated employee, i.e. since
the year 1985.
5. Heard.
6. The facts of the case are undisputed that the respondent was
engaged by the Bank in the year 1985 and he continued to work with the
bank till date of regularization, though there is some dispute that whether the
respondent worked from 2002 to 2008. The respondent admittedly had
instituted proceedings before the Labour Commissioner raising industrial
dispute in the matter of his services during the course of which the
settlement was arrived at between the bank and the workman and the
workman was regularized as part time employee at 1/3 of regular salary and
subsequently regularized as full time employee in the year 2011.
7. The order Annexure P-1 dated 18.12.2008 clearly refers to the
bipartite settlement between the bank and the respondent workman. Once
there was a bipartite settlement between the bank and the respondent
workman, therefore, it is not a case where the bank can get away asserting
that the respondent workman never worked with it so that the onus would be
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39
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on the workman to indicate that he has worked for 240 days in each
year. Section 2-A of Payment of Gratuity Act, 1972 is as under:-
“2A. [ 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
] [* * *] 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 or six
months, he shall be deemed to be in continuous service under
the employer-
(a)for the said period of one year, if the 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.]
[ Explanation .-For the purposes of clause (2), the
number of days on which an employee has
actually worked under an employer shall include
the days on which-
(i)he has been laid-off under an agreement or as
permitted by standing orders made under the
Industrial Employment (Standing Orders) Act,
1946 (20 of 1946), or under the Industrial DisputesSignature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
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5 WP-31712-2023
Act, 1947 (14 of 1947), or under any other law
applicable to the establishment;
(ii)he has been on leave with full wages, earned in
the previous year;
(iii)he has been absent due to temporary
disablement caused by accident arising out of and
in the course of his employment; and
(iv)in the case of a female, she has been on
maternity leave; so, however, that the total period
of such maternity leave does not exceed [such
period as may be notified by the Central
Government from time to time.]
(3)[ Where 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
months, he shall be deemed to be in continuous service under
the employer for such period if he has actually worked for
not less than seventy-five per cent., of the number of days on
which the establishment was in operation during such
period.]”
8. As per the provision of Section 2A, an employee shall be said to be
in continuous service for the period he has been in uninterrupted service
including interruptions on account of sickness, accidents, leave, absence
from duty even without leave, except where the leave has been declared as
break in service and other rules and regulations of the establishment, layout,
strike or lockout or cessation of work not due to fault of the employee. It is
only if the employee is not in continue service for the purpose of Section 2-
A(1) that the question of working for 240 days in each year would come into
operation as per Section 2-A(2)(a)(ii) of Act of 1972.
9. In the present case, the bank did not come out with any pleading
that there were breaks in service or there were interruptions in service due to
fault of the employee so as the employee would come out of the definition of
continuous service as per Section 2-A(1) and relegate him to Section 2-A(2).
The necessary foundational facts have not been pleaded by the bank in the
reply. Therefore, it is clear that the respondent workman would continue toSignature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39
6 WP-31712-2023
be covered under Section 2-A(1) of Act of 1972 and would not be relegated
to Section 2-A(2) so as to create a onus to prove that he worked for 240 days
in each calendar year and then the ancillary question would have cropped up
that whether the onus is on the workman or the bank. However, in the
considered opinion of this Court, the said question would not arise in the
present case, because the service of the workman was not alleged by the
Bank to have been interrupted on any of the grounds under Sub-section (1).
10. However, at this stage, learned counsel for the bank has pointed
out to the appeal memo of the respondent before the appellate authority,
whereby the respondent workman himself has stated that he worked in the
bank from 09.03.1985 till 14.02.2002 and then from December, 2008. In
view of the assertion made in the appeal memo Annexure P-5, it is clear that
the period from 14.02.2002 till 18.12.2008 has to be excluded from the
length of service as per the own pleadings of the respondent-workman.
11. In view of the above, the order of the appellate authority is
modified to the extent that the length of service of the respondent shall be
calculated from 09.03.1985 till 14.02.2002 and then from 19.12.2008 till
30.09.2015. In other words, from the length of service calculated by the
appellate authority, the period between 15.02.2002 till 18.12.2008 has to be
excluded and gratuity has to be calculated as per the remaining period.
12. Other terms and conditions of the order of the Appellate Authority
are kept intact. The Controlling Authority is directed to recalculate the
gratuity as per other terms and conditions of the order of Appellate Authority
by deducting the period from 15.02.2002 till 18.12.2008 and ensure payment
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39
7 WP-31712-2023
of the remaining gratuity to the respondent.
13. With the aforesaid modifications, the petition is disposed of.
(VIVEK JAIN)
JUDGE
rj
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12-08-2025
17:44:39