IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side Present :

The Hon’ble Justice Shampa Dutt (Paul)

WPA 28770 of 2024 Hooghly Infrastructure Pvt. Ltd.

C & C R Vs.

Sk. Alam Ismail & Ors.

For the Petitioner : Mr. S. K. Singh, Mr. R. K. Dubey.

For the State : Mr. Srinath Singha Roy.

For the Respondent : Mr. Uddipan Banerjee, No. 1 Mr. Subhra Kanti Samanta.

For the Sr. Govt. Adv. : Mr. Soumitra Bandyopadhyay.

Hearing concluded on : 07.03.2025 Judgment on : 18.03.2025 Shampa Dutt (Paul) , J.

1. The present writ application has been preferred praying for direction upon the respondents to cancel and set aside the orders dated 21.11.2023 and 18.09.2024, passed by the Controlling Authority and the Appellate Authority respectively under the Payment of Gratuity Act, 1972.

2. The petitioner‟s case is that the respondent no. 1 was engaged in petitioner‟s company as a Badli worker on 24.05.1978. The respondent no. 1 got his provident fund membership only in the year 1981. The respondent no. 1 attained the age of superannuation on 01.07.2015 as a Badli. Throughout this period i.e., 24.05.1978 to 30.06.2015 the respondent no. 1 worked as „badli‟ employee i.e., in place and stead of permanent employees, who were absent for any reason whatsoever. The certified standing orders of the company authorises the company to engage „badli‟ workman as substitute of a permanent workman who used to be on leave or absent i.e., during temporary vacancy caused by absenteeism.

3. It is further submitted that the certified standing orders of the company authorities permits the company to engage badli workman as substitute of a permanent workman who used to be on leave or absent i.e., during temporary vacancy caused by such absenteeism.

4. On reaching the age of superannuation, the respondent no. 1 applied for gratuity in Form “N” on 29.04.2016, before the Controlling Authority for computation as well as direction for payment gratuity alleging non-payment of gratuity and claimed a sum to the tune of Rs. 2,41,452/- along with simple interest. The said form “N” was forwarded to the petitioner under Form “O” dated 9.6.2016 issued by the Controlling Authority.

5. It is submitted that the respondent no. 1 had not completed qualifying service of 5 years continuous service for 240 days, each year, to be eligible for gratuity under the Act. It is further pointed out that the respondent no. 1 has not produced any document to prove his stand of entitlement of gratuity or having worked for 240 days for a continuous period of 5 years.

6. Ultimately the Controlling Authority passed an order dated

21.11.2023, inter alia, directing the petitioner to pay gratuity for the total period of continuous service for 37 years amounting to Rs. 2,15,520/- along with interest amounting to Rs. 1,79,600/-, totaling to Rs. 3,93,120/-.

7. Being aggrieved by and dissatisfied with the order passed by the Controlling Authority, the petitioner preferred an appeal before the Appellate Authority under the Payment of Gratuity Act, 1972, Barrackpore, North 24-Parganas on 25.01.2024.

8. At the time of filing of appeal, the petitioner duly deposited the principal amount amounting to Rs. 2,15,520/- vide Demand Draft No. 002390, dated 17.1.2024 drawn at ICICI Bank, Kalyani Branch.

9. While passing the order dated 18.09.2024, the appellate authority upheld the order passed by the Controlling Authority and directed the petitioner to make payment of the amount of Rs. 1,79,600/- i.e., the balance amount in respect of interest.

10. The said order has been challenged in the present writ application.

11. On hearing the learned counsel for both parties and on perusal of the order passed by the Controlling Authority, it appears that the Controlling Authority held as follows:-

“………. In this instant case, there exists no dispute regarding joining date, superannuation date or the last wages drawn by the applicant-employee. The only dispute lies on the question of eligibility of the employee to get the gratuit