APHC010392192014 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3457] MONDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION NO: 9680/2014 Between: Vajrala Rami Reddy, ...PETITIONER AND The Apsrtc Rep By Its Vice Chairman Managing Director and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. M PITCHAIAH Counsel for the Respondent(S): 1. K SATYANARAYAN MURTHY(SC FOR APSRTC) 2. The Court made the following Order: The petitioner has filed the present writ petition seeking a direction to the respondents to pay gratuity and other retirement benefits for the entire period from 1977 to 31.05.2004, by taking into consideration the revised pay scale in May 2004, together with interest at 12% per annum from the date the retirement benefits became due until the date of actual payment. 2. It is submitted by the learned counsel for the petitioner that the petitioner was initially employed as a conductor on 07.03.1977 and worked till 2 10.08.1977, on which date the petitioner was removed from service on account of alleged misconduct. The petitioner filed an appeal before the appellate authority challenging the removal, and the appellate authority, on 18.01.1978, reinstated the petitioner into service. The petitioner worked up to 04.01.1985, on which date the petitioner was again removed from service for alleged misconduct. The petitioner filed I.D. No. 71 of 1988, and the Labour Court directed the petitioner to be reinstated as a conductor. The petitioner was reinstated on 22.06.1989 and worked up to 23.04.2002, on which date the petitioner was again removed from service on account of alleged misconduct. The petitioner filed I.D. No. 94 of 2005 before the Labour Court, Guntur, and the Labour Court, Guntur, vide award dated 29.02.2008, directed the respondents to reinstate the petitioner into service. The petitioner attained the age of superannuation on 30.06.2006. As such, the award of the tribunal could not be implemented due to the petitioner attaining the age of superannuation by the date of passing the award. 3. The petitioner filed W.P. No. 19694 of 2008 challenging the award passed by the Labour Court. This Court, vide order dated 15.12.2010, modified the award by directing the respondents to treat the petitioner as in service up to 31.05.2004 and also observed that the petitioner shall be deemed to have continued in service up to 31.05.2004 for the purpose of computation of his terminal benefits. It was also made clear that the petitioner would not be entitled for any back wages. 4. The respondents' delay in implementing the orders of this Court, as such, C.C. No. 1201 of 2011 was filed. During the pendency of the contempt 3 case, the respondents released the payments due to the petitioner on various dates, commencing from 29.03.2011 to 24.12.2011. Thereafter, the contempt case was closed. 5. The learned counsel for the petitioner submits that the petitioner would be entitled for payment of gratuity for the period of service rendered by the petitioner prior to 23.04.2002 as well and has also placed reliance on Section 7 of the Act deals with the determination of the amount of gratuity. The Sub-section (3A) of Section 7 of the Payment of the Gratuity Act, 1972, which reads as follows:- (3A) If the amount of gratuity payable under sub-section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify: Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground.] 6. It is submitted that the statute mandates the payment of interest on gratuity that has been unpaid by the employer. It is also submitted that the payment of gratuity is a beneficial legislation, and the respondents have not justified denying the gratuity for the period of service prior to 23.04.2002, when this Court, in W.P. No. 19694 of 2008, had extended the continuity of service for notional purposes for computing the terminal benefits. 7. The learned Standing Counsel for the respondents submits that the petitioner was appointed as a fresh conductor on 22.06.1989 and, upon his 4 subsequent removal on 23.04.2002, the Labour Court directed reinstatement of the petitioner afresh in proceedings dated 29.02.2008. The petitioner had filed the writ petition seeking setting aside of the award on the ground that the petitioner attained the age of superannuation on 30.06.2006. The challenge before this Court in W.P. No. 19694 of 2008 was the award passed in I.D. No. 94 of 2005, whereby the Labour Court directed reinstatement of the petitioner as a fresh conductor, vide award dated 29.02.2008. 8. It is also submitted that the petitioner was paid all the dues, and as such, the details of the payments have also been submitted in the counter, and there is no due payable to the petitioner. It is also submitted that the petitioner is not entitled for payment of gratuity for his service from 19.07.1977 to 1978, as he has not completed five years of service. It is submitted that the petitioner was appointed afresh, which would not entitle him for gratuity. 9. The learned counsel for the petitioner relies on the judgment in the matter of S.N.Vasudevaiah S/o. Narasimaiah vs. Appellate Authority under payment of, on 10.10.2006. 10. Consideration of this Court to Section 2(A) reads as follows: 2A. Continuous service. For the purposes of this Act,- (1) an employee shall be said to be in continuous service for a period if he has, for that period, been in uninterrupted service, including service which may be interrupted on account of sickness, accident, leave, absence from duty without leave (not being absence in respect of which an order 2[*] treating the absence as break in service has been passed in accordance with the standing orders, rules or regulations governing the employees of the establishment), lay-off, strike or a lock-out or cessation of work not due to any fault of the employee, whether such uninterrupted or 5 interrupted service was rendered before or after the commencement of this Act; (2) where an employee (not being an employee employed in a seasonal establishment) is not in continuous service within the meaning of clause (1), for any period of one year or six months, he shall be deemed to be in continuous service under the employer- (a) for the said period of one year, if the employee during the period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than- (i) one hundred and ninety days, in the case of any employee employed below the ground in a mine or in an establish- ment which works for less than six days in a week; and (ii) two hundred and forty days, in any other case; (b) for the said period of six months, if the employee during the period of six calendar months preceding the date with reference to which the calculation is to be made, has actually worked under the employer for not less than- (i) ninety-five days, in the case of an employee employed below the ground in a mine or in an establishment which works for less than six days in a week; and (ii) one hundred and twenty days, in any other case. Explanation. Explanation. For the purposes of clause (2) the number of days on which an employee has actually worked under an employer shall include the days on which- (i) he has been laid-off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under the Industrial Disputes Act, 1947 (14 of 1947), or under any other law applicable to the establishment; (ii) he has been on leave with full wages, earned in the previous year; (iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and (iv) in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed 2[such period as may be notified by the Central Government from time to time].] (3) where an employee, employed in a seasonal establishment, is not in continuous service within the meaning of clause (1), for any period of one year or six 6 months, he shall be deemed to be in continuous service under the employer for such period if he has actually worked for not less than seventy- five per cent. of the number of days on which the establishment was in operation during such period.] 11. Consideration of this Court to Section 4, reads as follows: 4. Payment of gratuity.-(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.] Explanation. For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement. (2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of [an employee who is employed in a seasonal establishment and who is not so employed throughout the year], the employer shall pay the gratuity at the rate of seven days' wages for each season. 7 Explanation. In the case of a monthly rated employee, the fifteen days' wages shall be calcuiated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen. (3) The amount of gratuity payable to an employee shall not exceed [such amount as may be notified by the Central Government from time to time]. (4) For the purpose of computing the gratuity payable to an employee who is employed, after his disablement, on reduced wages, his wages for the period preceding his disablement shall be taken to be the wages received by him during that period, and his wages for the period subsequent to his disablement shall be taken to be the wages as so reduced. (5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer. (6) Notwithstanding anything contained in sub-section (1), - (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer shall be forfeited to the extent of the damage or loss so caused; (b) the gratuity payable to an employee [may be wholly or partially forfeited]- (i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. 12. The claim of the petitioner for gratuity for the period of service during 07.03.1977 to 10.08.1977 cannot be considered, as the petitioner would not be entitled for the said period, as he has not completed five years of service. Similarly, the claim of the petitioner for payment of gratuity from 04.01.1985 to 22.06.1989 cannot also be considered by this Court on account of the petitioner not completing five years of service. Insofar as the claim of the 8 petitioner for the service rendered during 08.01.1978 to 04.01.1985 is concerned. 13. Admittedly, the petitioner was charged for misconduct, an enquiry was conducted, and the punishment was also challenged by filing I.D. No. 71 of 1988. As such, the petitioner cannot be considered for payment of gratuity for the period of his service from 04.01.1985 to 22.06.1989. The period of service during 22.06.1989 to 23.04.2002 cannot also be considered by this Court on account of the mandate of Section 4 of the Payment of Gratuity Act. The claim of the petitioner cannot be considered by this Court. 14. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed. ____________________ JUSTICE HARINATH.N 17.02.2025 PNS