Breaks in service due to reasons beyond an employee's control do not break the continuity of service for the purpose of calculating gratuity under the Payment of Gratuity Act, 1972.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ application has been filed, inter alia, praying for a direction upon the respondents to make payment of the retiral benefits of the petitioner.

2. It is the petitioner’s case that the petitioner had been working under the respondent no.1 since 29th December, 2007 in different capacities until 7th December, 2020 when his service was terminated. The petitioner claims that since 6th October, 2017, the petitioner was working as a Quality Assurance-cum-Quality Control (QA/QC) Supervisor at the Boiler Site, Chennai. The petitioner, however, claims that his salary and other terminal benefits were not disbursed in his favour for the period from October to December, 2020 and he was deprived of bonus for the year 2019-20.

3. It is the petitioner’s further contention that the petitioner is entitled to gratuity as is payable in terms of the provisions of the Payment of Gratuity Act, 1972. Since gratuity was not disbursed in his favour, he had also applied in Form-I before the respondent authorities. Despite reminders, since the respondents did not accede to his prayer and did not make payment of his terminal benefits including the gratuity, the petitioner was compelled to invoke the extra-ordinary writ jurisdiction of this Hon’ble Court.

4. At the interim stage, on 3rd April, 2023, it was represented on behalf of the respondents that subsequent to filing of the present writ application, the petitioner’s salary had been cleared. However, since no application in Form-1 had been received by the respondents, no steps had been taken to consider the petitioner’s case for payment of gratuity. Since, it appeared that the application in Form-I, addressed to the Chairman-cum-Managing Director of the respondent no.1, had been annexed to the writ application and the Track report showing delivery confirmation had also been annexed at page 26 of the writ application, this Court, taking note of the aforesaid, had directed the respondents to take immediate steps in the matter. It was further clarified that pendency of the writ application would not stand in the way of the respondents disbursing the admitted entitlement of the petitioner.

5. Since then, it was represented on behalf of the respondents that admitted entitlement of the petitioner had been disbursed and leave was sought for to use an affidavit in the matter.

6. Considering the submissions made by the learned advocate for the parties, the parties were permitted to exchange affidavits. The respondents have since filed their affidavit-in-opposition in the matter and a reply has also been filed by the petitioner. Mr. Pandey, learned Advocate representing the petitioner by drawing attention of this Court to the Service Certificates which are at pages 12 to 17 of the writ application submits that the petitioner has been in an uninterrupted service under the respondent no.1 since the year 2007. The aforesaid Service Certificates are undisputed documents which establish that the petitioner was in the employment of the respondent no.1 since 29th December, 2007.

7. He, however, submits that the respondents, to somehow demonstrate that the petitioner had not been in continuous service, had issued such certificates by indicating the date of joining and date of leaving of the petitioner.

8. He then places reliance on the Member Passbook maintained by the Employees’ Provident Fund Organisation for the period from March, 2010 to February, 2021 in order to demonstrate that there had been no break in payment of provident fund contributions by the respondent no.1 on the petitioner’s account, save for the month of December, 2011.

9. By referring to Section 2A of the Payment of Gratuity Act, 1972 (hereinafter referred to as the “said Act”), he says that a perusal of the aforesaid Service Certificates read with members pass book as aforesaid, would in no uncertain terms demonstrate that the break in service shown in the Service Certificates is not due to any fault of t