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

The Hon’ble Justice Shampa Dutt (Paul)

WPA 22777 of 2024 Hooghly Infrastructure Pvt. Ltd.

Vs Sri Ram Okil Prasad & Ors For the Petitioner : Mr. Soumya Majumder, Mr. Rabi Kumar Dubey, Mr. S.K. Singh.

For the State : Ms. Sanghamitra Nandy, Mr. Aviroop Bhattacharya.

Hearing concluded on : 10.02.2025 Judgment on : 04.03.2025 SHAMPA DUTT (PAUL), J. :

1. The present writ application has been preferred praying for direction upon the respondents to set aside and cancel the order dated 21.05.2024 passed by the Appellate Authority.

2. The petitioner’s case is that the Respondent No. 1 was engaged in Petitioner Company as a Badli worker on 23.03.1976. At that time qualifying period and days for provident fund membership was 120 days within a period of six months from 10.08.1974 to

30.01.1981. However, as the applicant did not work continuously even 120 days within 6 months from 23.03.1976 to 1979, he could not be made member of the Employees Provident Fund Scheme. The Respondent No.1 got his provident fund membership only on 23.04.1980. The Respondent No.1 was made special badli on 01.04.2002 and attained his age of superannuation on 13.02.2010. The respondent no.1 had been working as badli worker from 23.03.1976 till the date of being made special badli i.e., from 31.03.2002 and he superannuated on 13.02.2010.

3. On being retired the Respondent No.1 had been paid all his retiral benefits inclusive of gratuity amounting to Rs. 27,770.96 and after receiving his dues on all accounts, the respondent no.1 sent form "I" on 13.11.2013 and applied for gratuity in Form N before the respondent no.3 on 20.12.2013 alleging less payment to the tune of Rs. 91,254.04p.

4. Ultimately the Controlling Authority passed an order dated

26.12.2016, when after considering all the materials on record, he was pleased to dismiss the application of the respondent no. 1 claiming Gratuity. While passing the order dated 26.12.2016, the Controlling Authority specifically observed that in spite of all opportunities being forwarded to him, the respondent no. 1 failed to establish his claim for being eligible to be entitled for gratuity payment.

5. Being aggrieved by and dissatisfied with the order passed by the Controlling Authority, the respondent no.1 filed an appeal before the Appellate Authority under the Payment of Gratuity Act, 1972, Barrackpore, North 24 Parganas on 17.03.2017, on the grounds as stated therein.

6. The petitioner was served with order dated 21.05.2024 under cover of notice dated 03.07.2024 in Form S. While passing the order dated 21.05.2024 the appellate authority, inter alia, reversing the order passed by the Controlling Authority, declared the respondent no. 1 to be entitled to gratuity for 34 years along with interest @ 10%, totaling to a sum of Rs.

1,33,358.85p i.e., Rs. 79,053.49p+ 54,305.36 р.

7. It is stated that while passing the order dated 21.05.2024 the appellate authority, illegally shifting the onus to prove that respondent no.1 did not work for 240 days in each year of his alleged tenure of service upon the petitioners and miserably failed to appreciate that it is impossible to prove a negative, i.e., the years respondent no. I did not work for 240 days in each year.

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

9. The Appellate Authority in disposing of the appeal held as follows :-

“………. In the instant case, the appellant had discharged his initial onus by producing whatever documents available with him and in his custody to establish that he was on employment for 240 days in a year. The respondent company was in possession of the best evidence which he could not produce. So, an adverse inference may be drawn in view of the failure on the part of the respondent to produce the original service record even on being asked by the Ld. Controlling Authority (vide Mahant Shri Srinivas Ramanuj Das Vs Surjanarayan Das & Anr; AIR 1967 SC 256). Wh