Substitute employees must prove actual rendering of service to achieve continuous service status for gratuity. Periods of lockout without work do not create entitlement. Additionally, post-superannuation re-employment necessitates completing a fresh, mandatory minimum qualifying period of service before further gratuity claims can be substantiated.

Judgment :

Shampa Dutt (Paul), J.

1. The writ application has been preferred praying for direction upon the respondent no. 2 being the appellate authority to set aside and quash the impugned order passed on June 9, 2023, in Case No. GA-06/2022 and direct the 2^nd respondent to hear and dispose of the said case in accordance with law within a specified time frame.

2. The petitioner's case in short is that the petitioner is an ex-employee of the respondent no. 4 who after 42 years of continuous unblemished service was not paid his due gratuity forcing him to file an application for direction before the 3rd respondent which was disposed of on contest on December 27, 2021 which was appealed by the private respondent before the 2^nd respondent who passed the impugned order dated June 09, 2023 in violation of the Act, 1972 which leads to the petitioner to approach before this Court.

3. Vide the impugned order, the respondent no. 2 being the appellate authority under Payment of Gratuity Act, 1972 wherein it is stated that :-

“After hearing the appellant and the opposite party and after going through availabordssed frulings the Controlling Authority, I am recording my decision here under :

The date of Joining of Sk. Yeasin Ali (Respondent 1) is 16/03/1973, as a badli worker.

There is also no dispute regarding his superannuation on 01.07.2012. The entire period from 1973 to 2012 he was a Budli worker. The contemion of the appellant is that the Controlling Authority has considered this entire 39 years into the realm of continuous service, whereas, Sk Yeasin All actually rendered continuous service for only 04 years during this period.

The contention of the appellant is that the burden of proof of rendering continuous service lies on the employee. On the other hand, the employee and Respondent number! refutes and says that the burden in on the employer, being custodian of the records.

In this context, it is pertinent to refer to the observation of the Hon'ble Supronic Court of India in pars 12, in the case of Sita Ram & Ors vs Mati Lal Nehru Farmers Training Institute (AIR 2008 SC 1955) which goes as under-"12. Although at one point of time the burden of proof used to be placed on the employer, in view of a catena of recent decisions, it must be held that the burden of proof on the workman to show that he has completed 240 days in a year".

Reference is also drawn to the observation of Hon'ble High Court Calcutta in WP 12342(W) of 2015 Calcutta Jute Manufacturing Company vs The State of West Bengal & Ors. Whereas the Court says," I1 appears that the Tribunal has ignored the basic principle that the onus of proof of having worked for 240 days continuously is initially on a workman".

Hence, it is now a settled position of law that the workman, is initially required to prove that he rendered the continuous service.

In the instant case the opposite party (Respondent 1) has failed to come up with documentary evidence to prove that Sk. Yeasin Ali rendered continuous service from 1973 to 2012. The appellant on the other hand, substantiated their claim with documentary evidence. The Controlling Authority has erred in ignoring the evidentiary value of documents produced by the appellant. There is no statutory obligati