JUDGMENT :

Raja Basu Chowdhury, J:

1. The present writ application had been filed, inter alia, challenging the order dated 21st September, 2021, passed by the Controlling Authority under the Payment of Gratuity Act, 1948 (hereinafter referred to as the “said Act”), and the order dated 29th July, 2022, passed by the Appellate Authority constituted under the said Act.

2. The petitioner says that the petitioner had engaged the respondent no. 4 from time to time, on no-work-no-pay basis. The respondent no. 4, however, with a malafide intention on 12th December, 2019 had filed an application in Form-‘N’ before the Controlling Authority claiming gratuity. The proceeding was contested by the petitioner and on contested hearing, the Controlling Authority by his order dated 21st September, 2021, was, inter alia, pleased to determine the gratuity payable to the respondent no. 4. Challenging the aforesaid order, a statutory appeal was filed before the Appellate Authority under the said Act.

3. The Appellate Authority, however, by its order dated 29th July, 2022, was, inter alia, pleased to uphold the findings passed by the Controlling Authority and declared that the respondent no. 4 is entitled to gratuity, amounting to a sum of Rs.4,15,925.00/-for the period from 27th July, 2001 to 31st July, 2018. Challenging both the aforesaid orders, the present writ application has been filed.

4. Mr. Barman, learned advocate appearing for the petitioner, claims that the respondent no. 4 had never worked for more than 240 days in a year. He says that the respondent no. 4 was not a permanent worker and that despite there being no dispute about the status of the respondent no. 4 and as regards the nature of his employment, the Controlling Authority determined that the respondent no. 4 shall be entitled to gratuity.

5. It is contended on behalf of the petitioner that the Controlling Authority without returning a finding that the respondent no. 4 had worked for more than 240 days in a year, continuously for a period of 5 years, had directed the gratuity to be disbursed in his favour. The aforesaid procedure adapted by the Controlling Authority according to Mr. Barman is not only contrary to the provisions of the said Act but is against the principles of law and equity. He says that unless a finding is returned by the Controlling Authority with regard to 240 days of continuous service in a year for a minimum period of 5 years no direction could have been issued by the Controlling Authority for payment of gratuity in favour of the respondent no.4.

6. By placing reliance on a judgment delivered by the Hon’ble Supreme Court, rendered in the case of Lalappa Lingappa & Ors. AND Mahadu Sitaram & Ors. v. Laxmi Vishnu Textile Mills Ltd., 1981 AIR (SC) 852, it is submitted that non-permanent employee such as a badli employee is not covered by the substantive part of the definition of “continuous service” as defined in Section 2(c) of the said Act and as such, is not entitled to gratuity for the badli period. He says that the orders passed by both the Controlling Authority as also by the Appellate Authority cannot be sustained and should be set aside.

7. Mr. Chakraborty learned advocate appearing for the private respondent no. 4, on the other hand, submits that the writ petitioner had acknowledged and accepted that the respondent no. 4 is entitled to gratuity. By placing reliance on the order passed by the Controlling Authority, he says that the petitioner had filed a calculation sheet before the Controlling Authority and had accepted that the respondent no. 4 had worked under the petitioner from 27th July, 2001 to 31st July, 2018. Having thus acknowledged the respondent no. 4 to had worked with the petitioner, it does not lie in the mouth of the petitioner to question the order passed by the Controlling Authority. The petitioner cannot be permitted to blow hot and cold at the same time.

8. By referring to aforesaid disclosure made by the petitioner as is reflected in the o