A daily wage worker is entitled to count his service for gratuity under the Payment of Gratuity Act, 1972, if he has actually worked for the specified number of days in a year.

B. P. Singh, J.–In this writ application under Articles 226 and 227 of the Constitution of India, Smt. Manorma Devi, petitioner no. 2 herein, is the widow of late Jai Govind Prasad. It is her grievance that the Central Coalfields Limited has not paid to her husband and thereafter to her the amount of gratuity which was payable to her late husband. Petitioner no. 2 made an appeal to the Hon’ble the Chief Justice of India and she was directed to contact the Secretary of Law (Legal Aid Department) Secretariat, Patna. The petitioner no. 2 was thereafter directed to contact the Secretary of the Bihar State Legal Aid Committee, Ranchi. Ultimately, petitioner no. 2 sought the aid of the Ranchi Legal Support Centre which is petitioner no. 1 herein in the instant writ application and which has spoused the cause of petitioner no. 2.

2. The late husband of petitioner no. 2 was a Lower Division clerk in the Bhurkunda colliary and retired from service in the year, 1978. According to petitioner no. 2., her husband was entitled to gratuity on the basis of continuous service from 1944 to 1978, i.e. on the basis of continuous service for thirty four years. The respondents, however, paid a very small sum by way of gratuity and made a certain deduction which was not permissible in law. It is not necessary to state the other facts in detail as they are not necessary for the disposal of the instant writ petition.

3. In the counter affidavit filed on behalf of respondents 1 to 3 and 6, it has been stated that the husband of petitioner no. 2 was working on daily wages from 1944 to 1956. He was taken into permanent service with effect from 26.5.56 and he ultimately retired from service on reaching the age of superannuation on 1.7.1978. It is the case of the respondents that the period of service on daily rated cadre does not count towards the qualifying service for computation of gratuity. As such, the period during which the husband of petitioner no. 2 was working on daily wages i. e. from 1944 to 1956 cannot be taken into consideration for computation of the amount of gratuity payable to him. In this view of the matter the respondents calculated the gratuity only for the period from 26.5.1956 to 30.6.1978 which amounted to Rs. 5,611.50 paise. The husband of petitioner no. 2 was paid this amount and a sum of Rs. 3,000/- was held up towards the interest of employees share of Coal Mines Provident Fund. After adjusting the interest it is stated that a sum of Rs. 219.90 paise is lying with the respondents which the petitioner no. 2 has not cared to collect.

4. The main question that fall for determination in the instant case is whether a workman working on daily wages basis is entitled to count his service as a daily rated workman for the purpose of gratuity under the Payment of Gratuity Act, 1972 (hereinafter referred to as the Act).

5. Mr. Dilip Jerath appearing on behalf of the petitioner contended that the Act does not make any distinction between a person working on daily wage basis and a person working on monthly wage basis. According to him the crucial test is whether the employee concerned has rendered continuous service and was actually employed within the meaning of the terms under the Act. It matters little whether his wages were paid daily or monthly as long as his service was continuous and amounted to continuous service within the meaning of that terms under the Act. Mr. Jerath relied upon a decision of the Bombay High Court in Laxmi Vishnu Textile Mills v. P. C. Malavankar (1979 Labour and Industrial Cases 562) and also upon the JUDGMENT : of the Supreme Court in Lalappa Lingappa v. Laxmi Vishnu Textiles Mills, 1981 (1) LLJ. 308. Sri Debi Prasad appearing on behalf of the respondents reiterated the plea raised in the counter affidavit which has been stated earlier.

6. In my view, Mr. Jerath is correct in his submission. It must be held that the husband of petitioner no. 2 was entitled to payment of gratuity by reckoning his service a