IMPORTANT POINT
The main legal point established is that entitlement to gratuity under the Payment of Gratuity Act, 1972 is contingent upon fulfilling the statutory requirement of continuous service of 240 days per year.

ORDER :

Shree Chandrashekhar, J.

I.A. No. 8138 of 2019

This application has been filed for condonation of delay of 54 days in filing the present appeal.

2. Having considered the statements made in the application, the delay of 54 days in filing the present appeal is condoned.

3. I.A. No. 8138 of 2019 is, accordingly, allowed.

L.P.A. No. 549 of 2019

4. The order passed by the Deputy Chief Labour Commissioner (Central) under the Payment of Gratuity Act, 1972 has been affirmed by the writ Court in WP(L) No.4265 of 2018.

5. While dismissing WP(L) No.4265 of 2018, the writ Court has made the following observations:

“7. ….....................................................................................

The controlling authority by putting reliance upon the judgment passed by the Hon’ble Apex Court in the case of D.S. Nakara and Vrs. Union of India, since the plea was taken by the petitioner that the other similarly situated employee has been extended the benefit of gratuity, has passed the order directing for making payment of gratuity.

It is the admitted case of the petitioner that he had performed his duty for a period of 153 days and as such it cannot be said that he has discharged, continuous service of 240 days as per the stipulation made under the provision of Section 2A of the Act, 1972.

So far as the finding recorded by the controlling authority with respect to granting benefit in favour of the other similarly situated employees which has been negated by the Appellate Authority on the ground of Article 14 of the Constitution of India which does not envisage negative equality.

This Court is of the view that the gratuity is a right of the employee, if covered under the Act, 1972 and is to be paid subject to fulfillment of the terms and conditions stipulated therein.

Admittedly, the petitioner has not fulfilled the continuous discharge of duty for a period of 240 days rather he has discharged duty only for 153 days, and therefore, he is held not entitled to get the gratuity for the aforesaid period.

So far as the finding of the controlling authority that since the others have been paid, so the petitioner is also entitled to get the same in view of the provision of Article 14 of the Constitution of the India but the same has been negated by the Appellate Authority, this Court is of the view that the controlling authority is not right in passing the order merely on account of the fact that the others have been paid, even though they were not entitled to get as per the provision of the Payment of Gratuity Act,1972 as discussed hereinabove, but the said finding has been reversed by the appellate authority which cannot be said to be illegal, it is for the reason that as per the settled legal position, Article 14 of the Constitution of India is not meant to perpetuate illegally since Article 14 envisages positive equality and not the negative one, otherwise if on the basis of wrong committed, relief would be granted to them that would lead to allowing the illegality to be perpetuated, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Chaman Lal Vrs. State of Punjab and Ors. reported in AIR 2014 SC 3640, wherein at Paragraph 15 as quoted hereinbelow:-

“15. Moreso, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground to grant similar relief to others. This Court in Basawaraj and Anr. V. The Spl. Land Acquisition Officer, AIR 2014 SC 746 considered this issue and held as under:

“It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an