Bangalore Metropolitam Transport Corporation vs The Deputy Labour Commissioner and The Appellate Authority Under The Payment of Gratuity Act, The Assistant Labour Commissioner and Controlling Authority Under The Payment of Gratuity Act and Mohammed Ghouse

Ram Mohan Reddy

This petition though listed for preliminary hearing, with the consent of the learned counsel for the parties, is finally heard and disposed of by this order.

The Public Road Transport Corporation aggrieved by the order dated 15.6.2010, Annexure-D, of the Controlling Authority under the Payment of Gratuity Act, 1972, for short ''Act, preferred an appeal to the Appellate Authority-1st respondent, who confirmed the order and dismissed the appeal by order dated 11.5.2011, Annexure-E Hence, this petition.

Learned counsel for the petitioner-Corporation advances the following three contentions:

(a) That the Authorities under the Act erred in deducting Rs. 3,41,669/- instead of Rs. 3,54,217/- as admitted by the 3rd respondent workman, from out of Rs,4,03,666/- determined, as gratuity and therefore, the balance of gratuity due to the 3rd respondent was Rs. 49.449/-.

(b) That the period form 18.2.1975 to 31.10.1977, whence the 3rd respondent was on the badli rolls, was required to be excluded from continuous service to be reckoned for computation of gratuity.

(c) 1 year, 3 months and 22 days during the entire period of service rendered by the 3rd respondent in the petitioner establishment, was break in service due to leave, LWA unauthorised absence etc., which required to be excluded from continuous service to calculate gratuity, which the Authorities had failed to consider.

Per contra, Sri M.C. Basavaraju, learned counsel for the 3rd respondent submits that the first contention deserves acceptance, white the second and third contentions are folly covered by the decision of this Court in W.P. No. 41553/2010, between BMTC Vs. Deputy Labour Commissioner and others, recording findings against the Corporation.

Having heard the learned counsel for the parties, perused the pleadings and examined the orders Impugned. Undoubtedly, the Authorities under the Act committed an error in not reckoring Rs. 3,54,217/- as the amount paid and received by the 3rd respondent as gratuity and therefore, the deduction of Rs. 3,41,669/-from out of Rs. 4,03,666/- was illegal In that view of the matter the 3rd respondent is entitled to receive from the petitioner Rs. 49,449/- as balance of gratuity as against Rs. 61,997/-.

The two other submissions of the learned counsel for fee petitioner, are without merit. In W.P. No. 41553/2010, this Court observed that the exclusion of the period during which the workman had served the petitioner Organization on badli rolls was impermissible in the light of the definition of the term ''continuous service'' u/s 2(A) of the Act, coupled with the petitioner''s failure to produce relevant material to establish that during the said period, the workman was neither engaged or assigned duties, In the facts of this case too the said observation applies on all its fouRs.

As regards the contention to exclude the period of break in service from continuous service, too when considered was rejected by the very same order, holding that Section 2(A) of the Act defines continuous service'' providing for break in service only if orders are passed by the Management in accordance with rules and regulations governing services of the workman, directing the period of absence etc., am break in service. In the present facts of the ease too in the absence of relevant material to hold that there was a break in service, that observation apples on all its fours and hence, the contention is rejected.

In the result, this petition is allowed in part. The orders of Authorities under the Act, are modified entitling the 3rd respondent workman to Rs. 49,449/-and in all other respect remain unaltered.