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IN THE HIGH COURT OF CALCUTTA
Soumen Sen, J.
Murlidhar Ratanlal Exports Ltd. - Petitioner
Versus
State of West Bengal & Ors. - Respondents
W.P. 1045 (W) of 2014
Decided on : 26-2-2014
PAYMENT OF GRATUITY ACT - GRATUITY - CALCULATION - CONTINUOUS SERVICE - BURDEN OF PROOF - WORKMAN REQUIRED TO ESTABLISH 240 DAYS OF WORK - EMPLOYER TO PRODUCE ATTENDANCE REGISTER AND WAGE REGISTER TO REBUT WORKMAN'S EVIDENCE - ADVERSE INFERENCE AGAINST EMPLOYER FOR WITHHOLDING BEST EVIDENCE.
Fact of the Case:
The petitioner, Hooghly Mills Co. Ltd., challenged three orders passed by the respondent authorities in a proceeding initiated by the private respondent, a former employee of Hooghly Mills Co. Ltd., for recovery of his gratuity under the Payment of Gratuity Act, 1972.
Finding of the Court:
1. The workman is required to establish that he worked for 240 days in a year to claim gratuity. 2. The employer is required to produce Attendance Registers and Muster Rolls to rebut the evidence of the employee concerned. 3. The question of shifting of onus assumes relevance only when evidence is adduced. 4. The employer, although alleged, did not lead any evidence. 5. The best evidence having been withheld by the employer, the Court may draw an adverse inference against the employer under Section 114(iii)(g) of the Evidence Act.
Issues: 1. Whether the workman is required to establish that he worked for 240 days in a year to claim gratuity? 2. Whether the employer is required to produce Attendance Registers and Muster Rolls to rebut the evidence of the employee concerned? 3. Whether the question of shifting of onus assumes relevance only when evidence is adduced? 4. Whether the employer, although alleged, did not lead any evidence? 5. Whether the best evidence having been withheld by the employer, the Court may draw an adverse inference against the employer under Section 114(iii)(g) of the Evidence Act?
Ratio Decidendi: 1. The workman is required to establish that he worked for 240 days in a year to claim gratuity. 2. The employer is required to produce Attendance Registers and Muster Rolls to rebut the evidence of the employee concerned. 3. The question of shifting of onus assumes relevance only when evidence is adduced. 4. The employer, although alleged, did not lead any evidence. 5. The best evidence having been withheld by the employer, the Court may draw an adverse inference against the employer under Section 114(iii)(g) of the Evidence Act.
Final Decision: The writ application is dismissed with costs assessed at Rs. 5000/- to be paid by the petitioner to the respondent No. 3.
Soumen Sen, J. :
The Subject-matter of challenge in this writ petition are three several orders, namely, order dated 31st January, 2011, 10th October, 2012 and 25th July, 2013 passed by the respondent nos. 2, 3 and 4 respectively.
2. All the aforesaid order were passed in a proceeding initiated by the respondent no. 6 for recovery of his gratuity under the Payment of Gratuity Act.
3. Shorn of all facts, the facts relevant to the issue are stated hereinafter. The petitioner, the petitioner took over running and operation of Hooghly Mills Co. Ltd. from the erstwhile owners in terms of an agreement dated 21st June, 2007. The petitioner alleged that the petitioner was not aware of the service conditions and/or employment related issues of the Indian Jute Mills Unit of Hooghly Mills Co. Ltd. It was during the course of the proceeding arising out of the claim for recovery of gratuity, the petitioner became aware that the private respondent no. 6 was an employee of Hooghly Mills Co Ltd. and had joined service in the said mill on 31st October, 1960 as a badli workman and did not render continuous service in any year until 1974. The respondent no. 6 had rendered continuous service on and from 1st January, 1974 and on attaining the age of superanuation on 15 July, 2005 he retired from service. The respondent No. 6 according to the writ petitioner is, therefore, entitle to claim gratuity for 31 years amounting to Rs.88,149.12 on the basis of his average last drawn wages of Rs.189.56. However, the respondent No. 6 it is alleged in this Form "N" Application incorrectly stated that he had rendered continuous service for 44 years 8 months 16 days or 45 years on had from 31st October, 1960 to 15th July, 2005. The respondent No. 6, according to the petitioner, however, has failed to discharge his obligation to prove that such continuation of service without break for 240 days in each year so as to claim gratuity by him.
4. On December 15, 2008, the respondent no. 6 filed an application before the controlling authority under the Payment of Gratuity Act, 1972 under sub-rule (1) of Rule 10 of the West Bengal Payments of Gratuity Rules, 1973 claiming gratuity form the year 1964 till 2005 on the basis of last drawn wages as Rs.198.15.
5. The respondent no. 6 during his chief and cross-examination stated before the Controlling Authority that he joined the petitioner on 31st October, 1960. He was superannuated on 15th July, 2005. During the period from his joining to superannuation he rendered continuous and uninterrupted service to his employer. His last drawn wages was Rs.198.15 only per day. He claimed his total period of service was 45 years and his due gratuity amounts to Rs.1,33,751.25. He also claimed interest admissible on such sum for delayed payment. The controlling authority by the judgment and order dated 24th January, 2012 held that the petitioner is liable to pay Rs.1,33,751/- to the respondent no. 6 towards his gratuity dues. The said controlling authority in arriving at the said finding had taken into consideration the evidence recorded in the said proceeding as also four documents namely, Employment Book, Last pay Shlip, General Diary and copy of Form 'N' and Letter of superannuation in order to arrive at a finding that the petitioner had worked for a period of forty-one years. The controlling authority has recorded that the petitioner in spite of giving repeated opportunities at every stage of the proceeding did not produce any document in support of its claim and in fact was adopting dilatory tactics to delay the conclusion of the said proceeding. The said authority arrived at an adverse finding against the petitioner in view of the failure on the part of the said petitioner to produce the attendance register or wage register or the certified standing order as a rebuttable evidence. Mr. Bhanja Chawdhury, the learned Counsel for the petitioner has relied upon the decisions reported in Phoenix Mills Ltd. v Balasaheb Dagdoo Hing
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