1998 Supreme(Bom) 678

IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
Shri Ramappa Bhimappa..... Petitioner.
Versus
M/s. Phoenix Mills Ltd. others..... Respondents.
Writ Petition No. 1627 of 1996, decided on 12-11-1998.
Advocates appeared :
B.C. Shah, for the petitioner.
Kiran S. Bapat, for respondent No. 1.

Headnote:Payment of Gratuity Act, 1972

       Sections 2-A, 4 and 7-Paymt of gratuity-Requisite of continuous service--Service of petitioner interrupted for reasons set out in Section 2-A(1) of Act viz. strike or lockout etc, not due to fault of employee - Petitioner accepted fresh employment after strike-Thus there was no interruption but under Section 2-A(1)Two spells of services justified.-It will be evident from the above provision that an employee is entitled to gratuity if he has been in uninterrupted service for certain period including the service which may be interrupted for the reasons set out in sub-section (1) of Section 2-A. Such interruption includes interruption by strike or 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 the said Act.

       Sections 2, 4 and 7-Payment of gratuity-Petitioner not rendered continuous service-Petitioner accepted fresh employment after settling earlier dispute regarding his dismissal with employer-Gratuity paid to petitioner for two spells of services held to be in order.- The petitioner was employed as badli worker in first respondent Mill w.e.f. 25th April, 1971. There was general strike in the textile industry with effect from 18th January, 1982. The strike was declared illegal by Labour Court by its order dated 10th February, 1982 in terms of provisions of Section 97(1)(b) of the Bombay Industrial Relation Act, 1946. The petitioner did not report for duty within the stipulated period after declaration of the strike as illegal and was consequently dismissed from service vide order dated 5th August, 1982. In reference preferred against dismissal of several employees of respondent Mill, before Industrial Court several workmen compromised the matter with the employer and collected their gratuity in terms of order dated 10th July, 1990. The petitioner on 22nd October, 1990 accepted the amount of Rs. 3,697.20 towards his claim for gratuity in respect of the services rendered by him from 25th April, 1971 to 17th January, 1982. The petitioners name, therefore, stood deleted from the reference proceedings and the Award pronounced on 10th July, 1990 became final. Meanwhile the petitioner was reemployed on 19th February, 1985 and subsequently tendered his resignation on 1st December, 1993, the petitioner had been paid the gratuity of Rs. 12,532.05 on 7th April, 1994, which he accepted without protest. However, on 24th June, 1994, the petitioner claimed gratuity in accordance with the provisions of Section 4 of the Gratuity Act on the ground that he was in continuous service for nearly 23 years i.e. from 25th April, 1971 till 1st December, 1993. The respondent Mill not having responded to the petitioners claim, he filed application claiming the amount of Rs. 33,171.75 deducting the amount already paid. The Controlling Authority rejected the contention of continuous service of petitioner with respondent Mill, under Section 2-A of the Payment of Gratuity Act and his claim for gratuity by its order dated 3rd February, 1996. The Appellate Authority agreed with the conclusions arrived at by the Controlling Authority and dismissed petitioners appeal on 15th July, 1996.

       Held, that there was no error of law or of jurisdiction in the concurrent findings recorded by the two authorities that the petitioner was not in continuous service from 25th April, 1971 to 1st December, 1993. There was a categoric admission of the petitioner in the application dated 21st February, 19990 that he had accepted fresh employment and that he had settled the earlier dispute with the employer. The petitioner had been paid the amount of Rs. 3,697.20 on 22nd October, 1990 and Rs. 12,532.05 on 7th April, 1994, in respect of the services rendered from 19th February, 1985 to 1st December, 1993. The findings recorded by the two authorities on the question as to whether the petitioner was in continuous service from 25th April, 1971 to 1st December, 193 negativing the claim confirmed.