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2026 Supreme(Cal) 112
IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Sk. Safijaddin @ Sk. Sofijuddin – Petitioner
Versus
The State of West Bengal & Ors. – Respondent
WPA 24185 of 2023
Decided On : 07-05-2026
Important Points
Subject
Labor and Employment Law - Retirement Benefits and Gratuity
Headnote
(B) Writ jurisdiction - Scope of judicial review - The writ court is not a fact-finding authority and should not interfere with factual determinations of competent authorities unless there is perversity or illegality. (Para 16)
(C) Conditions for eligibility - Re-employment after superannuation - Requirement of a fresh five-year period of continuous service for subsequent gratuity entitlement. (Paras 25, 26, 28)
Facts of the case:
The petitioner, a former worker, sought a direction for payment of gratuity for a duration involving a work stoppage (lockout) and for a subsequent period of re-employment after reaching the age of superannuation. The administrative authorities had denied the claim for the lockout period, identifying the petitioner as a substitute worker who failed to demonstrate the necessary qualifying working days. Furthermore, the claim for additional gratuity for the period of re-engagement was rejected on the grounds that the petitioner had not completed the mandatory five-year tenure of continuous service required for a new qualifying period.
Findings of Court:
The Court held that the burden of proving continuous service rests primarily with the employee. Status as a substitute worker does not grant automatic inclusion of lockout periods in service computation unless the threshold of actual work is met. Moreover, upon re-employment post-superannuation, a distinct, new period of five years of continuous service is mandatory to qualify for any further gratuity payments, which was not satisfied by the petitioner.
Issues: Whether a substitute worker is entitled to gratuity for periods of work suspension and whether an employee is eligible for gratuity for a period of re-employment following superannuation without fulfilling the mandatory minimum period of fresh service.
Ratio Decidendi: The court maintained that substitute workers are not in continuous service for periods where they did not actually perform duties. In the absence of evidence showing the petitioner met the qualifying working days during the suspension, the claim for that period failed. Furthermore, the law dictates that post-retirement re-employment must constitute a fresh, standalone tenure of at least five years to be considered for independent gratuity calculation.
Result: The writ petition stands dismissed.
For the Petitioner: Mr. Rananeesh Guha Thakurta, Mr. Dona Ghosh.
For the Respondent: Mr. Balai Ch. Paul, Ms. Tithi
| Table of Content |
|---|
| 1. appellate authority's order regarding continuous service and lock-out periods. (Para 1 , 2 , 3 , 4 , 5) |
| 2. analysis of evidentiary burden and the impact of lock-outs on gratuity eligibility. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. badli workers not entitled to gratuity for periods of non-work during lock-outs. (Para 18 , 19 , 20 , 21) |
| 4. gratuity eligibility for re-employed workers requires a fresh 5-year qualifying period. (Para 23 , 24 , 25 , 26 , 27 , 28) |
| 5. setting aside the impugned order and dismissal of the writ petition. (Para 29 , 30 , 31 , 32) |
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 21, 2023, in Case No. GA-05/2022 and direct the 2nd 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 43 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 2nd respondent who passed the impugned order dated June 21, 2023 in violation of the Act, 1972, which leads to the petitioner to approach this Court.
3. Vide the impugned order, the respondent no. 2 being the appellate authority under Payment of Gratuity Act, 1972, held:-
“The date of joining of Sk Sofijuddin (Respondent 1) is 24/04/1973 as Budli worker. He was made permanent on 01/08/2010 and superannuated on 01/07/2012.
The dispute is regarding Budli period of service from 24/04/1973 to 31/07/2010 that is 37 years and regarding service rendered in 2012, after he was made permanent. The contention of the appellant is that the Controlling Authority has considered this entire 37 years into the realm of continuous service, whereas, Sk. Sofijuddin actually rendered continuous service for only 13 years during this period (From 24/04/23 to 01/07/2012).
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 1 refutes and says that the burden is on the employer, being custodian of the records.
There are several judgments in this regard but reference may be drawn to the observation of the Hon'ble Supreme Court of India in para 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 is on the workman to show that he has completed 240 days in a year".
Reference is also drawn to the observation of Hon'bie High Court Calcutta in W.P 12342(W) of 2015 Calcutta Jute Manufacturing Company vs The State of West Bengal & Ors. Whereas the Court says," it 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 Respondent has failed to come up with documentary evidence to prove that he (Sk. Sofijuddin) rendered continuous service from 24/04/1973 to 30/006/2010. 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 obligation on the part of the employer to preserve records beyond three years and hence no adverse reference can be drawn against the appellant, for non production of original attendance shee
