Gratuity eligibility requires continuous service, which cannot be claimed during periods of non-work, as evidenced by documentary proof.

JUDGMENT :

M. K. THAKKER, J.

1 This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order dated 25.03.2019 passed by the learned Controlling Authority under the Payment of Gratuity Act in Gratuity Case No.92 of 2017, as well as the order dated 30.05.2020 passed by the learned Appellate Authority in Appeal No.11 of 2019, whereby the authorities have allowed the claim of the respondent and directed the present petitioner to pay an amount of Rs.1,36,289/- towards gratuity with simple interest at the rate of 10%.

2 It is the case of the present petitioner before this Court that the respondent was appointed as a Badli Kaamdar with the petitioner-Corporation. The respondent had filed Reference (LCV) No.541 of 1987 claiming reinstatement with back wages. During the pendency of the said Reference, a settlement was arrived at between the parties, whereby it was agreed that the respondent would be appointed afresh and placed in the waiting list with effect from 17.09.1995, i.e. the date of settlement. Pursuant thereto, appropriate orders were passed, which were accepted by the respondent without any protest. Thereafter, on 14.03.1996, the respondent was appointed by the petitioner-Corporation and subsequently superannuated with effect from 30.06.2017.

2.1 On 29.11.2017, the respondent filed an application under the Payment of Gratuity Act claiming gratuity for the period from 14.01.1985 to 30.06.2017. The petitioner, however, paid gratuity only for the period from 22.01.1996 to 30.06.2017 and opposed the claim on the ground that prior to 22.01.1996 the respondent had never actually worked and was merely placed in the waiting list, and therefore, was not entitled to gratuity for that period. The learned Controlling Authority, while passing the impugned award, directed that the period from 14.01.1985 to 22.01.1996 be considered for the purpose of gratuity. The learned Appellate Authority, while affirming the said order, dismissed the petitioner’s appeal. Hence, the present petition is filed praying for quashing and setting aside the orders passed by both the authorities and for allowing this petition.

3 Heard the learned advocate Mr.Naidu for the petitioner and the learned advocate Mr.Brahmbhatt for the respondent.

4 Learned advocate Mr. Naidu submits that during the course of adjudication before the learned Controlling Authority, a request was made to permit the petitioner to cross-examine the respondent in order to establish that during the period from 1985 to 1995 the respondent had never actually worked, and though he was merely placed in the waiting list, he filed a false claim before the learned Controlling Authority. It is submitted that in the settlement arrived at between the parties, it was specifically recorded that the respondent would be appointed afresh and placed in the waiting list with effect from 17.09.1995, and pursuant thereto, a pursis was filed by the Corporation before the learned Labour Court, whereupon the Reference was disposed of by recording the said settlement.

4.1 Learned advocate Mr. Naidu further submits that from 1995 till 2017 no grievance was ever raised regarding non-implementation of the settlement, and yet the respondent, by raising a false claim, contended that he was reinstated and thereby sought gratuity benefits from the date of his initial appointment in 1985. It is submitted that during the period from 1985 to 1995, the respondent did not render continuous service as contemplated under the Payment of Gratuity Act. Despite this, the learned Controlling Authority erroneously directed the petitioner to compute gratuity from the year 1985.

4.2 It is further submitted by the learned advocate Mr. Naidu that the respondent was in fact appointed only on 14.02.1996, and gratuity has already been paid for the period from such date till his superannuation. However, the learned Controlling Authority, without appreciating these facts, wrongly granted gratuity benefits from 1