Continuous service entails proof of actual work threshold for substitute employees. Periods of industrial lockout do not confer automatic entitlement to gratuity if statutory minimum working days remain unfulfilled. Furthermore, re-employment post-superannuation necessitates a new, independent qualifying period of service to trigger further statutory gratuity benefits.

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-08/2022 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 the widow of 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 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 available records and findings of the Controlling Authority, I am recording my decision here under : The date of joining of late Sk. Mustafa, the husband of Rohimon (Respondent 1) is 27/05/1971. He was made permanent on 29/06/1997 and superannuated on 01/07/2009.

The dispute is regarding Budli period of service from 27/05/1971 to 28/06/1997 that is 26 years and regarding service rendered in 2004, 2006 and 2009 after he was made permanent on 29.06.1997. The contention of the appellant is that the Controlling Authority has considered the entire 26 years of Budli period from 1971 to 1996 into the realm of continuous service, whereas, late Sk. Mustafa actually rendered continuous service for only 11 years during this period. The appellant further contended that the workman did not render continuous service in the years 2004, 2006 and 2009 and gratuity for these three years has not been paid accordingly.

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 is on the employer, being custodian of the records.

There are several judgements 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 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 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 1 has failed to come up with documentary evidence to prove that Sk. Mustafa rendered continuous service from 27/05/197