Substitute workers are not entitled to gratuity for periods where they were not actually employed, regardless of lock-outs, unless qualifying thresholds are met. Additionally, re-employment after superannuation requires a fresh five-year period of continuous service to qualify for further gratuity.

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 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 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 2^nd 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