The entire service period, including daily-wage engagement, must be counted for calculating gratuity under the Payment of Gratuity Act, 1972, as it is a welfare legislation. Furthermore, an appeal filed beyond the 120-day statutory limit specified in the Act is not maintainable.

Jiya Lal Bhardwaj, Judge (Oral)

The petitioners by way of present petition have prayed for the following substantive reliefs:-

“a) That impugned order dated 31.08.2018 passed by Controlling Authority-cum-Labour Officer, Mandi Zone and further order/judgment dated 28.06.2019/15.07.2019 of Ld. Joint Labour Commissioner-cum-Appellate Authority, HP may kindly be quashed and set aside.

b) That the entire relevant record of the Controlling Authority and Ld. Joint Labour Commissioner-cum Appellate Authority, HP may kindly be summoned.

c) That the operation of impugned order dated 31.08.2018 passed by Controlling Authority-cum Labour Officer, Mandi Zone and further order/judgment dated 28.06.2019/15.07.2019 of Ld. Joint Labour Commissioner-cum-Appellate Authority may kindly be stayed during the pendency of Writ Petition.”

2. The precise grouse of the petitioners in the present petition is that the entire service rendered by the respondent from the initial date of his engagement on daily wage basis till the date of his retirement could not have been taken into account for the purpose of calculating the gratuity. The undisputed facts are that the respondent was initially engaged on daily wage basis as Beldar (Class-IV) in Public Works Department in the year 2000. His services were regularized in the year 2012 and he retired from service on 31.01.2017. The entire service rendered by the respondent from the date of his engagement on daily wage basis till his superannuation came to be 16 years and 6 months, with 240 days in each calendar year w.e.f. 01.08.2000 to 31.01.2017. Since, the respondent was not paid the gratuity of the entire period, he filed an application under Section 7 of the Payment of Gratuity Act, 1972 (for short ‘the Act’), before the Controlling Authority Mandi Zone, Mandi, H.P., who vide order dated 31.03.2018 allowed the same and calculated the amount of ₹1,45,385/- in terms of the provision of Section 4(2) of the Act and awarded interest on the said amount @10% per annum w.e.f. 01.02.2017, till its payment in terms of the mandate as contained in Section 7 (3-A) of the Act.

3. The petitioners feeling aggrieved by the said order dated 31.03.2018, passed by the Controlling Authority Mandi Zone, Mandi, H.P., had filed an appeal before the Joint Labour Commissioner-cum-Appellate Authority under sub Section 7 & 8 of Section 7 of the Act, who vide order dated 15.07.2019, had been pleased to dismiss the appeal as time barred, since it was filed beyond the period of maximum 120 days’ as provided under the Act.

4. The petitioners feeling aggrieved by both the orders passed by the statutory authorities have filed the present petition challenging the same on the grounds that the appeal was filed on 30.07.2018 and the order passed by the Controlling Authority was received on 04.04.2018, and as such the same was within a period of 120 days. Further Controlling-cum-Labour Officer has calculated the gratuity for the entire service rendered by the respondent i.e. daily wage period and also the regular service on the last wages drawn by him, which is against law.

5. The respondent has not filed any reply to the petition, however, the learned counsel representing the respondent has supported the orders on the basis of the findings returned therein.

6. I have heard the learned counsel for the parties and also perused the record carefully.

7. Learned Deputy Advocate General representing the petitioners has vehemently argued that since there was a conflict of opinion of two-Judge Bench of the Hon’ble Supreme Court in Netram Sahu vs. State of Chhattisgarh and another , (201