IMPORTANT POINT
An apprentice under the Apprentices Act is excluded from gratuity under the Payment of Gratuity Act, but a trainee not under such a contract is considered an employee and entitled to gratuity.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. WPA 21014 of 2007 is at the instance of the employer and is directed against the order dated November 23, 2006 passed by the Appellate authority under the Payment of Gratuity Act, 1972 affirming the order of the Controlling Authority dated February 24, 2005.

2. The Employer has filed 4 other writ petitions. Such writ petitions involve similar facts and there are minor factual differences with regard to the date of the order passed by the Controlling Authority and the Appellate Authority, the date of joining and the amount directed to be paid to the employee on account of balance amount of gratuity. The writ petitions involve common questions of law. As such all the writ petitions were heard analogously and the same are disposed of by this common judgment and order.

3. In order to avoid repetition and for the purpose of convenience, the facts of WPA 21014 of 2007 is summarised hereunder and the same is treated to be the lead case.

4. Respondent No. 1/Employee filed an application in Form N under Rule 10(1) of the Payment of Gratuity (Central) Rules, 1972 (for short “the 1972 Rules”) before the Controlling Authority for determination and realization of gratuity amount for continuous service from 12.10.1971 to 31.03.2003 under the writ petitioner/Employer and for other reliefs.

5. Writ petitioner contested the said application before the Controlling Authority contending that the 1st respondent was an “apprentice” appointed under the Apprentice Act, 1961 (for short “the 1961 Act”) and he was absorbed as a new entrant on 12.10.1974 and was paid the gratuity amount on the basis of date of appointment as recorded in the service records.

6. The Controlling Authority, by an order dated 24.02.2005, determined that a sum of Rs. 19,766/- is payable to the 1st respondent as balance amount of gratuity. Being aggrieved by the order of the Controlling Authority, the writ petitioner/Employer preferred an appeal and the Appellate authority by an order dated 23.11.2006 dismissed the appeal.

7. Being aggrieved by the order of the appellate authority, the Employer has approached this Court.

8. Mr. Basu, learned Senior Advocate for the writ petitioner contended that an “apprentice” is excluded from the definition of “employee” under the Payment of Gratuity Act, 1972 (for short “the 1972 Act”) and, therefore the period of apprenticeship training undergone by the 1st respondent cannot be included within the expression “continuous service” as defined under Section 2(c) of the 1972 Act. He drew the attention of the Court to a copy of the “Service Record Card” of the Employee wherein the date of appointment of the 1st respondent on 12.10.1971 was as “Full Term Apprentice” (FTA). Mr. Basu contended that the Appellate authority excluded the “Service Record Card”, which is an admissible evidence, while arriving at the final decision. He submitted that the documents produced by the 1st respondent in support of his case are inadmissible in evidence. According to Mr. Basu, the decisions of the Controlling Authority and the Appellate authority call for interference as the same are based on inadmissible evidence as well as non consideration of an admissible evidence.

9. In spite of the notice, the 1st respondent was unrepresented.

10. Heard the learned advocate for the petitioner and perused the materials placed.

11. “Employee” has been defined in section 2(e) of the 1972 Act. Section 2(e) is extracted hereinafter as the same would be relevant for deciding the issue involved in this writ petition.

“2(e) “employee” means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company, shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Gover