Petitioner HLL Life Care Limited challenged orders granting extra gratuity to an employee for pre-1983 casual service. Court held employer failed to prove lack of 240 days service after employee proved inclusion in casual list. Writ dismissed.
Writ filed to quash orders awarding extra gratuity dismissed; payable amount stands confirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 10TH DAY OF MARCH 2023 / 19TH PHALGUNA, 1944
WP(C) NO. 5005 OF 2022
PETITIONER/S:
G.KRISHNAKUMAR
THE GENERAL MANAGER (G. KRISHNAKUMAR),
HLL LIFE CARE LIMITED, PEROORKADA FACTORY,
PEROORKADA, THIRUVANANTHAPURAM - 695 005.
BY ADVS.
P.RAMAKRISHNAN
PREETHI RAMAKRISHNAN (P-212)
C.ANIL KUMAR
ASHA K.SHENOY
PRATAP ABRAHAM VARGHESE
RESPONDENT/S:
1 R.MANOHARANCHITHIRA, NEAR SREEKRISHNASWAMY TEMPLE,
EAST NADA, THIRUVANANTHAPURAM - 695 005.
2 THE REGIONAL LABOUR COMMISSIONER (CENTRAL), THIRUVANANTHAPURAM, PIN - 685 001.3THE DEPUTY CHIEF LABOUR COMMISSIONER
(CENTRAL), OFFICE OF THE DEPUTY CHIEF LABOUR
COMMISSIONER, CHENNAI, TAMIL NADU - 600001.
BY ADVS.
R1 R.MANOHARAN(Party-In-Person)
R2 & R3SHRI.K.SHRI HARI RAO, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 5005 OF 2022 ..2..
JUDGMENT
The 1st respondent was an employee in the
Peroorkada Factory of M/s HLL Life Care Limited which is a public sector undertaking. According to the petitioner, the 1st respondent joined service on 01.01.1983 and retired on attaining the age of superannuation on 31.10.2015 after rendering 32 years and 10 months of service. Upon retirement, the 1st respondent was paid Rs.8,22,888/- as gratuity for the aforesaid period of service. The 1st respondent subsequently filed an application before the Controlling Authority under the Payment of Gratuity Act, 1972 (‘Gratuity Act’ for short), the 2nd respondent, under Section 7(4) (b) read with Rule 10(1) of the Payment of Gratuity (Central) Rules, 1972 stating that his date of appointment in HLL was 26.12.1978 and that he had been paid gratuity ignoring
WP(C) NO. 5005 OF 2022 ..3..
the casual service rendered by him from 26.12.1978 to 31.12.1982. The 1st respondent made his claim on the basis of Ext.P1 settlement dated 26.12.1978 entered into between HLL and the trade unions which provided that casual labourers will be engaged from the list appended thereto on the basis of availability of work. The petitioner resisted the application stating that there were no records available regarding the service rendered by the 1st respondent during the period from 26.12.1978 to 31.12.1982 and that the 1st respondent had not put in continuous service of 240 days a year during his alleged casual service and that the onus to prove that he had put in the requisite work during the alleged period was on the 1st respondent. The petitioner also contended that Ext. P1 settlement only provided for the engagement of casual workers subject to the availability of work.
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WP(C) NO. 5005 OF 2022 ..5..
contending that the 1st respondent does not have continuous service of 240 days in each calendar year during his alleged casual service, and the casual service must be regularised for being counted along with the regular service for the purpose of payment of gratuity. It is also contended that the 1st respondent had not tendered any evidence to support his claim and that the onus is on the 1st respondent to prove that he had 240 days of continuous service in each calendar year. Accordingly, the petitioner seeks for a direction to quash Exts.P2 and P4 orders.
WP(C) NO. 5005 OF 2022 ..6..
Counsel for respondents 2 and 3.
workman to show that he had continuous service for 240 days for entitlement for gratuity. Even the casual service of the 1st respondent for the period prior to 01.01.1983 is disputed by the petitioner. According to the petitioner, as per the records, the 1st respondent joined the service of HLL on 01.01.1983. The 1st respondent produced Ext.P1 settlement dated 26.12.1978 entered into between the HLL and the Trade Unions in respect of dispute over the engagement of casual workers. The terms of settlement provides that, as and when casual employment is available in the factory, the casual workers included in the list appended thereto will be employed. In the list of casual workers appended to Ext.P1, the name of the 1st respondent is included at Sl.No.2 which would show that
WP(C) NO. 5005 OF 2022 ..7..
the 1st respondent was a casual worker of the petitioner as on 26.12.1978. The case of the petitioner before the Controlling Authority was that no records were available with them regarding the casual service rendered by the 1st respondent during the period from 26.12.1978 to 31.12.1982. To let in evidence, the 1st respondent has produced Ext.P1 settlement dated 26.12.1978 which would show that he was a casual worker as on 26.12.1978. Thus, the 1st respondent has discharged the initial burden that he was a casual employee from 26.12.1978. The petitioner who was statutorily required to maintain the records of casual employment has submitted before the Controlling Authority that no records are available with them regarding the service rendered by the 1st respondent during the period from 26.12.1978 to 31.12.1982. In terms of Ext.P1 settlement also, the petitioner has to
WP(C) NO. 5005 OF 2022 ..8..
maintain the records of casual employees. As per the terms of Ext.P1, the casual workers included in the list appended thereto shall be provided employment as and when work is available, in accordance with priority. The 1st respondent having discharged the initial burden as regards his casual employment with the petitioner, the burden is shifted to the petitioner to show that the 1st respondent did not have continuous service of 240 days for entitlement for gratuity. The petitioner did not produce any document with regard to the casual employment of the 1st respondent for the period from 26.12.1978 even after the 1st respondent produced Ext.P1 settlement as proof of his casual service prior to regularisation. The Controlling Authority has also observed that the petitioner has not denied the contention of the 1st respondent that two similarly situated casual employees who joined HLL in
WP(C) NO. 5005 OF 2022 ..9..
1981 and 1982 have been given gratuity for the casual service rendered by them and that the 1st respondent has been discriminated. I do not find any reason to interfere with the concurrent findings of fact by the Controlling Authority and the Appellate Authority.
The writ petition is, accordingly, dismissed.
Sd/-
MURALI PURUSHOTHAMAN JUDGE
SB
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APPENDIX
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF SETTLEMENT DATED 26.12.1978 ENTERED INTO BETWEEN THE PETITIONER AND TRADE UNIONS WITH ENGLISH TRANSLATION.Exhibit P2TRUE COPY OF ORDER DATED 12.09.2017 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P3TRUE COPY OF MEMORANDUM OF APPEAL DATED NOVEMBER 2017
SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY CHIEF
LABOUR COMMISSIONER (CENTRAL), ERNAKULAM.
Exhibit P4TRUE COPY OF ORDER DATED 27/10/2021 PASSED BY THE 3RD
RESPONDENT IN GRATUITY APPEAL NO.104/2019.
RESPONDENT EXHIBITS
Exhibit REGIONAL LABOUR COMMISSIONER (CENTRAL) LETTER DATED
R1(a)02/02/2022.
Exhibit
REPRESENTATION DATED 07/02/2022.
R1(b)
Exhibit
MEDICAL CERTIFICATE.
R1(c)
Exhibit RTI APPLICATION AND REPLY DATED 31/8/2016 RECEIVED ON
R1(d)3/9/2016
2 issues framed by the court
Whether an establishment is required to prove absence of 240 days of continuous service once the employee establishes casual employment on date of seed.
Whether the burden of proof shifts to the employer to prove lack of requisite service after the employee proves inclusion in the casual worker list.
2 provisions across 2 enactments
G.KRISHNAKUMAR
RMANOHARAN
THE REGIONAL LABOUR COMMISSIONER (CENTRAL), THIRUVANANTHAPURAM
THE DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL), CHENNAI
MURALI PURUSHOTHAMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court