Devendra Chaudhry, Member (Ad.)

1. The present OA has been preferred against the order dated 10.12.2020 concerning payment of Gratuity and Provident Fund of the applicant. In relief quashing of the same along with directions to release all dues concerning Provident Fund, Gratuity, Leave Encashment, Notice Pay, etc., ['Gratuity etc.' referred to in short hereinafter] are prayed.

2. The relief(s) claimed by the applicant are as under:

Para 8 of O.A:

i. To quash the impugned letter dated 10.12.2020 (Annexure No. A1) passed by respondents which has been issued not as per directions of this Hon'ble Court, based on false information and also respondents have denied to pay all dues to the applicant.

ii. To direct respondents to immediately release all dues such as Provident Fund, Gratuity, Leave Encashment, Notice pay, Damage for not giving due notice before disengagement, along with applicable interest.

iii. To pass suitable orders in accordance with the Penalty clause specified in the Gratuity Act 1972, for willful act of falsification by respondents to deny statutory payment of Gratuity to applicant.

iv. To compensate petitioner for personal/professional/social/financial loss which the applicant faced due to all above arbitrary acts of respondent State.

v. Any such order or direction which deem appropriate in present circumstances may please also be passed.

2.1. Brief facts of the case are that the applicant, it seems was first engaged at Indira Gandhi Rashtriya Uran Akademi, Amethi ('IGRUA' in short herein after) on daily wage basis in 1998 [para-3 of CA filed vide MP No. 248/2021 refers] during the period 15/8/1998 to 30/4/2021 and perhaps later again in the period 0106/2005 till 05/8/2008 [para-3 of CA refers - supra]. Thereafter the applicant was engaged as Telephone Operator w.e.f. 06/08/2008 on contract basis [respondents refer to it as short term contract] which engagement came to an end on 31/12/2016. Per the OA, the applicant was employed as Telephone Operator in the year 1988 as per Annexure A-2 of the OA and that the services of the applicant were arbitrarily discontinued on 26/12/2016. [para 4.2 and 4.3 of OA refers].

2.2. Per the applicant, on being discontinued, an OA 485/2018 was preferred before this Tribunal against the order of discontinuation which was dismissed. Thereafter the applicant approached the respondents for release of Provident Fund [PF in short], Gratuity, Leave Encashment etc., for the employment period prior to discontinuation of her services. When the same were not released, the applicant filed and an OA 291/2020 before this Tribunal which was disposed of vide order dated 10.11.2020 with the directions that "accordingly, without entering into the merits of the case, the matter is disposed of with a direction to the respondents to dispose of the representation dated 23.07.2020 submitted by the applicant in accordance with law, by way of a reasoned and speaking order within a period of one month after receipt of a certified copy of this order.

Accordingly, O.A. No. 291/2020 stands disposed of."

2.3. The applicant submits that when the compliance of this order of the Tribunal did not take place, a contempt petition was filed in December 2020 which matter is still pending before the Tribunal. However, while the contempt petition was pending, the respondents have passed an order dated 10.12.2020 refusing payment of Gratuity and other dues claimed therein. The present OA has been filed against order dated 10.12.2020 [Annexure A-1] which has been issued in compliance of the order of this Tribunal in OA No. 291/2020 [supra].

2.4. The same is now under challenge before us on the grounds that (i) first of all Gratuity is payable because under Section 2A of the Gratuity Act which specifies that there is a requirement of 240 days working in a year continuously for a 5 year period. It is the contention of the applicant that she has worked for 08 years continuously instead of just 05 as required under the Gratuity Act as is evident from the monthly pay slip documents for the period 2009-2010 to 2016-2017 which testify that the applicant has worked for more than 240 days continuously every and each year viz: as follows: 358, 359, 357, 359, 359, 361, 364, and 275 respectively in each of the years starting 2009-10 [Annexure-4].

(ii) Secondly that the is also liable to be paid interest also payable on the delayed payment of Gratuity amount per Section 7(3A) of the Act which has been withheld from the date of disengagement in December 2016.

(iii) Thirdly that she is also liable to be paid Provident Fund by IGRUA itself and not the EPFO office as stated in the impugned order because:

(a) till the time of severance of employment of applicant by respondent, the PF was held by IGRUA as is evident from the statement on PF deduction and interest paid to applicant till Dec 2016 per statement for Financial Year 2016-17 [Annexure A-11] issued to applicant under the signature of IGRUA officials namely Shri Niraj Tripathi & Shri Sachin Tandon.

(b) PF was paid with interest to one Shri Guru Prasad Yadav, Fire Foreman, Employee Code 10111, whose services also came to an end on 31 Dec 2016, as in the case of the applicant.

(iv) Fourthly, that other dues as claimed in relief para are also liable to be paid as per IGRUA service Rules. Hence the O.A. has merits and should be allowed.

3. Per contra, the respondents have denied the claims on the following grounds:

(i) That in light of the judgment dated 25/02/2020 and 21/07/2020 of this Tribunal in the O.A. No. 485 of 2018 and Review Application No. 04/2020 respectively, preferred by the applicant which have been dismissed, the applicant is not liable to be paid any Gratuity because:

a) the applicant had break in service and so did not satisfy the conditions of continuous service as required in the Section 2A of the Gratuity Act.

b) This break in service assertion is supported by the appointment letter which specifies that the engagement was on short term contract and that the same was for a period specified in the engagement letter. That since the engagement was on short term contract of specified period, therefore every time a contract period expired a fresh extension was given but only after a break in service as individual contracts were valid only for six months at a time with a break in service between each of them proving that hence service was not continuous.

c) That is to say that since the Applicant was a contractual employee, engaged for a specific period of time and not in continuous job but with broken periods of service, and since Gratuity can be paid only when there is continuous service of at least five years but that on account of the break in service each time the contract was extended, the applicant cannot therefore claim continuous service of five years and so is not liable to be paid Gratuity as per the provisions contained in the Gratuity Act.

(iii) That Gratuity is also not payable under IGRUA regulations, because, as per Clause 3(1) under Chapter 1 of IGRUA Employees' Service Rules & Regulations only those employees of the Akademi, whether part-time, casual, temporary, those on contract and or on separate agreement etc., only by a general or special order. As the same was not granted to the applicant, hence Gratuity is not payable on this ground also.

(iv) Further that, as per Section 2A of Payment of Gratuity Act, 1972, "absence from duty without leave (not being absence in respect of which an order treating the absence as break in service has been passed in accordance with the standing orders .....". Since no order has ever been passed by IGRUA regularizing the gap between consecutive contracts as 'Duty', the service of the Applicant cannot qualify as continuous service.

(v) The respondents further contend that as regards periods with break in service, the appointment letters issued to permanent employees are upto their attaining the age of superannuation, in normal circumstances. Therefore the case cannot be compared to regular employee as being wrongly asserted by the applicant. The regular employees do not have breaks in service. If there is a break, he forgoes pension, gratuity and encash proportionately.

(vi) That leave encashment cannot also be paid because, if an employee is working on contract, then, as a goodwill gesture, he/she is allowed to take accumulated leave not taken during the previous service contracts but that there is no provision for the contractual employees to claim leave encashment since the breaks in their service contracts does not make them eligible for it and so the applicant cannot be granted leave encashment or for that matter Notice leave pay etc., for the same reasons.

(vii) That as regards payability of PF dues, consequent upon withdrawal of order under Section 17(1)(a) of EPF & MP Act, 1952 vide Order No. 23090/EPF/LKO/Comp/15353 dated 13.06.2017, the entire Provident Fund accumulations of employees of the Akademi have been transferred to EPFO. Thereafter, the EPFO has been managing the Provident Fund of IGRUA employees. Therefore, the PF accumulations of the applicant were transferred to EPFO in mid-2017 and so the same cannot be now paid by IGRUA and have to be therefore obtained from the EPFO office. That the comparison drawn by the another - one - Shri Guru Prasad Yadav is misplaced as his PF accumulations were released earlier to the order of 13/06/2017 and also because the said employee submitted the required No Dues Certificate from all the Departments of the Akademi in time, which is a mandatory requirement for releasing the dues. In this regard the applicant was also informed by the Manager HR vide Letter No. IGRUA:PF:2016-17/812 dated 26.12.2016, alongwith a Proforma of the need for a No Dues Certificate, with an advice to obtain clearance from Departments/Sections at the earliest and submit the same to the Finance Department to enable the Akademi to clear her dues. However, the Applicant submitted the No Dues Certificate only on 28.07.2017, by which time the EPF Trust was non-est and so now the PF dues have to be claimed from the EPFO and the respondents cannot pay the same. The Applicant cannot blame the Akademi for the delay on her part in respect of disbursal of PF dues directly from the Akademi now. Accordingly, the Applicant cannot claim similar treatment or discrimination in treatment.

(viii) As regards other dues: (a) the applicant is not entitled to leave encashment as she is a contract employee and contract employees are not entitled for leave encashment benefits, (b) the applicant is also not entitled to any payment of pay in lieu of discontinuance of service without notice period, because she is a contract employee whose date of end of contract is specified in the contract engagement letter which has been done every time the contract was extended in the case of the applicant and so there is no provision for pay in lieu of Notice for disengagement and so the applicant cannot be paid any pay in lieu of absence of Notice for disengagement. That in the case of Mohammad Rafiq Vs. M/s. Resource Weaver India it was held by Hon'ble High Court of Karnataka that employer is not required to be served any notice regarding discontinuation of a contract employment. Hence also the applicant on the basis of this judgment cannot be given pay in lieu of the notice period upon expiry of contract period specified ab initio in the contract engagement letter.

Accordingly, there are no merits in the OA which is therefore liable to be dismissed.

4. Heard the Ld. counsels for both the parties at length and perused all the pleadings and documents filed carefully.

5. The central issue is whether the applicant is liable to be paid the Gratuity, PF dues and other service dues per the extant laws including regulations of IGRUA service conditions.

6. On the issue of payability of Gratuity, it is important to examine the impugned order dated 10/12/2020 [Annexure-A1], the employment letter [Annexure-A5, A6 and A8], the monthly pay slips [Annexure-A4] and the relevant laws for which Section 2A and 3 of the Gratuity Act 1972, are important. The extracts are as under:

Annexure A-1 Impugned order

"Indira Gandhi Rashtriya Uran Akademi

10th December, 2020

Ref: IGRUA: HR:PF:2020:802

Mrs. S. Sunanda

W/o. Shri P.S. Jaya Sankar D-4/2, IGRUA Colony,

Fursatganj Airfield

Amedthi-229302 (UP)

Sub: Speaking order on request for non-payment of Provident Fund and Gratuity by IGRUA HR & Accounts Wing

Madam,

With reference to your letter dated 23rd July 2020, an Order Ref No. IGRUA: HR:PF:2020:801 dated 10th December, 2020 on the subject is attached herewith as per the instructions of the Court Order OA No. 291/2020 dated 11.11.2020 received on 12.11.2020 from our Standing Counsel.

(Krishendu Gupa)
Director

Copy to:

Shri Y.C. Bhatt, Standing Counsel, IGRUA

JS((AD), MoCA, New Delhi.

Employment related letters: CA-1

"Indira Gandhi Rashtriya Uran Akademi

5th Aug, 2008

Ref. IGRUA:HRD: Appt:51

Mrs. Sunanda

W/o. shri P.S. Jayasankar

IGRUA Campus

Fursatganj, Raebareli

It gives us pleasure to inform you that, the Akademi is pleased to appoint you as Telephone Operator on contract basis on the terms & conditions hereunder:

(a) This contractual appointment will be valid for a period of Six Months w.e.f. 6th Aug 2008 to 05th Feb 09. This contractual appointment will automatically lapse on completion of Six months.

(b) You will be governed by the Rules as framed/amended revised by the Akademi from time to time in respect of its contractual employees.

(c) During the period of contract, you will be paid a consolidated salary of Rs. 4000/- (Rupees Four Thousand Only) per month. In addition, you will not be entitled to any allowances or benefits, facilities etc. applicable of the Akademi.

(d) This contractual appointment can be terminated by giving fifteen days notice or Rs. 2000/- (Rupees Two Thousand in lieu thereof, either side.

(e) This contractual appointment would be on a full time basis not accept any other contractual/retainer appointment with organization.

(f) During the period of contract you will be entitled for 5 days Casual Leave & 5 days Sick Leave only.

(g) You will not be provided residential accommodation inside the campus.

(h) You may be required to work in shifts/split shifts as may be decided by the Akademi from time to time.

(i) Though your headquarters will be at Fursatganj, you would be required to work at any outstation in the event of any such requirement arises. TA/DA shall be paid for such out station duties as per normal rules applicable to any serving employee of an equivalent rank in the Akademi.

3. If the contractual appointment on the terms & conditions in paragraphs (a) thru (i) above is acceptable to you, please return us the attached duplicate copy of this letter duly signed by you in a token of your acceptance of the appointment and join the Akademi by 6th Aug 08. In case you fail to join by 6th Aug 08, it shall be presumed that you have no interest to join the Akademi and this appointment will automatically get cancelled.

(S.C. MALHAN)

AIR VICE MARSHAL (Retd.)

DIRECTOR

CC. Manager - Finance

I accept the contractual appointment on the terms and conditions as stated above.

Annexure A-2:

INDIRA GANDHI RASHTRIYA URAN AKADEMI

LIST OF DAILY WAGE EMPLOYEES (AS ON 15/03/08)

Annexure A-4: Monthly Pay slips - sample pay slip for December 2016:

Annexure A-5

"IGRUA

Dated 15.07.2005

EPABX Section

Ref. IGRUA: EPABX: IOM:05

From : O/o. Telephones

To Chef Admin Officer

As per the instructions of the Administration Department reference IOM No. IGRUA: ADMIN: TEL 05:21 dated 12th July 2005 and the Director's approval dated 11th July 2005, Mrs. Sunanda, Wife of Shri P.S. Jayashankar, House No. C-2/2, IGRUA Campus, is being engaged as Telephone Operator on daily wages in place of Mrs. Indu Jain w.e.f. 15th July 2005, Mrs. Sunanda Shall be engaged till such time all formalities of appointing afresh 03 Telephone Operators is completed. She will be paid Rs. 100/- per day as per the Director's approval.

The services of Mrs. Indu Jain are hereby discontinued with immediate effect from 15.07.2005.

(Krishnend Gupta)
O/o. Telephone

Cc. Accounts Officer

Security Officer

Mrs. Sunanda

House No. C-2/2, IGRUA A Campus"

Annexure A-6

Annexure A-8

"Indira Gandhi Rashtriya Uran Akademi

Ref. IGRUA. PF;09:248

Mrs. Sunanda

Emp. Code-256

Telephone Operator

IGRUA

EXTENTION CONTRACTUAL APPOINTMENT

Your terms of present contractual appointment has been extended for a further period of six months w.e.f. 19/05/2009 to 18/11/2009. All other terms and condition as mentioned in our letter No. IGRUA: HRD Appt: 08:51 dated 5th Aug. 2008 will remain unchanged except the following clauses with stand amended as under:-

(c) During the period of contract, you will be paid a consolidated salary of Rs. 4000/- (Rupees Four Thousand only). In addition, you will be paid Aviation & Transport Allowance as per rules of the Akademi.

(d) This contractual appointment can be terminated by giving one month notice or Rs. 4000/- (Rupees Four Thousand Only) in lieu thereof, without assigning any reason.

(f) During the period of contract, you will be entitled for 15 days EL, 5 days Medical, 5 days Casual & 1 days RH.

(V.K. Verma)
AIR MARSHAL (RED)
Director

C.C.
Assistant Accounts Officer, IGRUA
Manager Services, IGRUA"

Gratuity Act---related provisions:

Definitions (as per Gratuity Act 1972):

(b) "Completed year of service" means continuous service for one year. [Section 2(b)].

(c) "Continuous Service" means uninterrupted service and includes service which is interrupted by sickness, accident leave, lay-off strike or a lock-out or cessation of work not due to any fault of the employees concerned, whether such un-interrupted or interrupted service rendered before or after the commencement of this Act.

Explanation I.-In the case of an employee who is not in uninterrupted service for one year, he shall be deemed to be in continuous service if he has been actually employed by an employer during the twelve months immediately preceding the year for not less than

(1) 190 days, if employed below the ground in a mine, or

(2) (II) 240 days, in any other case, except when is employed in seasonal establishment.

Explanation II.-An employee of a seasonal establishment shall be deemed to be in continuous service 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 the year. [Section 2(d)].

Section 2A of Payment of Gratuity Act, 1972:

i. 2A. Continuous Service - For the purpose of this Act

ii. ..........

iii. (a). An employee shall be said to be in continuous service for an uninterrupted period if he has for that period, been service, including service which may be interrupted service, including service which may be interrupted ion account of sickness, accident, leave, absence from duty without leaver (not being absence in respect of which an order treating the absence as breach 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 interrupted service was rendered before or after the commencement of this Act.

As per Annexure A-4 above, clearly the Pay slips [only one sample extracted - rest available in the Annexure A-4] testify that the applicant has worked for various numbers of days in the concerned year as stated in each of the Pay slip and in each of the same, it exceeds 240 days. Off course the date of joining (varying as per the specific Pay slip) and date of resignation (31/12/2016) which is constant are entered as may be seen. However, when the same are matched with the Year to Date - number of working days - it is seen that in each pay slip the YTD number of days worked cumulatively for the concerned pay slip period, though not identical, but that in each case the YTD is more than 240 days.

6.1. In this regards, the respondents have in reply to Annexure-4 [stated in para 4.11 of O.A.] simply stated in their CA [para 15] that given the fact that in each year there are 365 days and the pay slip shows less than 365 days, and so the applicant was never employed for continuous 365 days and so by implication the applicant was never employed without a break as the total Year to Date Days of working are less than 365 and so this is proof enough that the applicant never worked for a continuous period as required under the Gratuity Act and so is not liable to be paid Gratuity.

6.2. However, this assertion of the respondents may not be tenable legally. In order to ascertain this we need to carefully examine the provision of the Gratuity Act. On doing so we find that per Section 3(c), the Gratuity Act ['Act' in short hereinafter] applies to establishments with ten or more employees on any day of the preceding 12 months, as the Central Government may specify in this behalf. The respondents have not opposed the application of the Act per se. Hence we start the discussions by accepting the fact of the Act being applicable on IGRUA.

6.3. We then see that Section 2(b) specifies 'completed year of service' means 'continuous service' as defined in Section 2A. Section 2A(1) specifies as under:

"(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 [***] treating the absence as break in service has been passed in accordance with the standing order, 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 interrupted service was rendered before or after the commencement of this Act..."

The point to be understood at the outset is that 'continuous service' requires something additional - called 'uninterrupted service' which in turn only includes such absence as due to sickness, accident etc. It does not specify and so does not include service period of such nature which is not specified in these criteria.

6.4. Now, it is a fact that per the Pay slips the applicant has worked admittedly for not of all of 365 days but actually for days less than 365 in each of the years of engagement and importantly, the less number of days is not due to any of the reasons or criteria specified in the Section 2A(1) and so the respondents assertion has to be given weight for the while at least, which is that the applicant was purposely not given a 365 day job as the condition was that for a certain number of days in a year, the applicant would not have the job which she was doing for rest of the days such as for 275 days as specified for pay slip of December 2016 wherein YTD is 275 or per pay slip of March 2016 wherein YTD is 364 or March 2015 wherein YTD is 361 days and so on per the individual pay slips enclosed as Annexure-A4 and relied upon by the applicant. So, it cannot be held straightway that the applicant qualifies for being in an employment condition wherein she was employed on 'continuous uninterrupted service' as required under Section 2A(1)/fulfilled the condition of 'continuous service for one year' as required under Section 2(b). However, this is not the full argument.

6.5. Before arriving at a final conclusion we also need to consider the assertion by the applicant that she worked for more than 240 days and thereby fulfilled the condition laid down in Section 2A (2). To thrash out this point it would be well to read the said Section carefully for which purpose it is extracted below:

"(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 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) 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;

Now admittedly, the applicant did work for more than 240 days in any of the years she was under employment with IGRUA. However, the point is that Section-2A(2) provides as against Section 2A(1), that should an employee not be in 'continuous service' within the meaning of Clause (1) of Section 2A, then, notwithstanding, the person shall be deemed to be in 'continuous service' if the employee has 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 240 days per Section 2A(2)(a)(ii).

6.6. This is where the criteria of 240 days of working even if not continuous comes into key critical pay with regards to case I hand.

6.7. We have already seen that the applicant has undisputedly per the pay slips worked in each of the said calendar year for more than 240 days and even if she did not work for 365 days and even if there was a break in service period in the lot of 365 days, then also, at least, the applicant did work for more than 240 days in which itself no inter-se break as the same is specified nowhere in the pay slip and therefore there is no further break in the period of 240 days and so the applicant has worked for at least 240 days continuously and so ergo, she does fulfill the condition of 'continuous service' even if only as per Section 2A(2)(a)(ii).

6.8. The point to be clearly understood here and now is that if one does not agree to this understanding of the law provisions, then one would also have to extinguish the provisions contained specifically in Section 2A(2)(a)(ii) which cannot be and which are differently defining 'continuous service' as compared to specification under Section 2A(1).

6.9. This view is further strengthened if one reads the 'Explanation' under Section 2A which as seen above clearly stipulates the for the purpose of Section 2A(2) - that is Clause (2), the number of days on which an employee has actually worked under an employer shall include the days on which the employee has inter alia been laid-off under an agreement or under any law applicable to the establishment in question.

7. That is to say that while the applicant does not fall under the category of 'continuous service under Section 2A(1), she does fulfill the condition of Section 2A(2) as laid down in Section 2A(2)(a)(ii) - read with Explanation (i) but only for the purpose of Gratuity Act and not in respect of any other provision under any other law.

7.1. This is because, even the respondents assert that the applicant was never intended to be given full 365 days of uninterrupted employment, which is why she never worked for full 365 days in any given year of employment which arrangement had been made so as to give a break in service - which cannot but be read as being 'laid-off' under an agreement - which agreement is the terms and conditions specified in the appointment letter - which is CA-1 as asserted to by the respondents themselves. On closer examination of CA-1 we see that the condition specifies that the employment is first of all - a contractual appointment. It is then valid for a period of six months w.e.f. 6th August 2008 to 5th February, 2009. That it will be on a full time basis [condition 'e' of the employment letter]. Now when this is read with letters dated 07/12/2015 and 15/05/2009 [Annexures A-6 and A8].

7.2. Then we see that the services of the applicant have been continued albeit with breaks but for a given calendar year they do add up to more than 240 days for any given year of employment. Thus, the inescapable conclusion is that the applicant even while having six monthly employment periods, did indeed have employment totaling upto more than 240 days in any given calendar year and so by virtue of this - did fulfill condition laid down in Section 2A(2)(a)(ii) for purposes of Gratuity under the Gratuity Act.

7.3. We also see from Annexure A-2 that the applicant was employed starting 15/8/1998 to 30/4/2001, then in the period 15/4/2005 to 31/10/2005 and then again in the period 15/7/2006 till the date of issue of the letter which is as on 15/3/2008. In fact the termination order is only of 2020 which is the one under challenge [Annexure A-1]. But the key period of 2008-09 to 2016-17 [2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2013-14, 2014-15, 2015-16, 2016 - December 2016] for which pay slips are undeniable and which by simple arithmetic, do add up to more than five years which is the total number of years required for payment of Gratuity per the Act.

7.4. The point is that clearly, the very existence of 240 days admitted by the respondents and evident from the pay slips gives a lie to the contra assertion of the respondents when we read the factoid under the applicability of Section 2A(2)(a)(ii) - read with Explanation (i) for the purpose of Gratuity Act even if not in respect of any other provision.

7.5. Hence, the 'continuity of service' condition is fulfilled per Section 2A(2)(a)(ii) - read with Explanation (i). So the applicant is without doubt liable for being granted benefits under the Gratuity Act.

7.6. In this regards, the respondents reliance on the stated Chapter XV of the IGRUA Regulations is misplaced as first of all the Regulation, in its para-53(2)(b) clearly specifies admissibility of Gratuity to contract employees. The same for quick reference reads as under:

Para-53 of IGRUA Regulations under Chapter XV - Annexure SCA-1 read with SCA-2:

CHAPTER-XV

GRATUITY

53. Commencement and Scope

(1) This shall apply to all the employees of the Akademi.

(2) The provisions of this Chapter shall not apply and the benefits there under shall not be admissible to or in relation to:

(a) temporary employees;

(b) employees on contract basis;

(c) employees appointed for a specific project;

(d) apprentices and trainees

(3) The Gratuity shall be payable to an employee termination of his employment after he has rendered continuous service for not less than five year;

(a) on his superannuation, or

(b) 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's due to death or disablement;

Provided further that in the case of death of the employee, gratuity payable payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs.

Explanation: For the purpose of this section, disablement mans 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) Retirement Gratuity on retirement shall be paid equal to one-fourth of his emoluments for each completed six monthly to a maximum of period of qualifying service subject 16-1/2 times the emoluments, provided that the amount of shall, in no case, exceed retirement gratuity payable There will also be no ceiling on reckonable Rupees one lakh. emoluments for calculating the gratuity.

(3) (a) If an employee in the first year of his qualifying service, the amount of gratuity shall be equal to two times of his emoluments.

(b) If an employee dies or on permanent disablement after completion of one year of qualifying service but before completing five years qualifying service, the amount of gratuity shall be equal to six times of his emoluments.

(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) Notwithstanding anything contained in sub-section (1):

(a) The gratuity of an employee, whose services have been terminated for any act, willful 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 shall be wholly forfeited:

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other action 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.

Clearly, the respondents cannot deny that Gratuity benefit being applicable to employees on contract basis. The respondents contra position on this that the applicant was on - short term contract - and hence not liable to be paid is: (a) making a class of employees within a class - even when such sub class is not specified in the Regulation itself ab initio, (b) hence reliance on a classification of an employee not specified anywhere as a category of employment in IGRUA is ipso facto not justifiable per the IGRUA regulations themselves, (c) this unjustifiable imaginary exclusion not sustained by the very provisions of the Regulation due to absence of such provision of short term employee as a class of employee cannot be therefore, be justified to read any benefit against an employee of IGRUA. Ipso facto it follows that then, non payability of Gratuity to such imaginary specific class of employees is but a figment of imagination not substantiated by the very Regulations which the respondents are also bound to comply with.

7.7. The respondents conveniently forget that if short term contract employee is not specified as a class of employee in the Regulation then how was the applicant appointed in the first place., because then such an appointment would willy-nilly make the said appointment becoming an illegal act - ab initio-beyond the Regulation whose onus falls back on the respondents themselves. Therefore, the respondents cannot escape from the hard fact that the applicant was indeed a contract employee and so liable to be paid Gratuity under the very Regulation of IGRUA if conditions laid down in the Gratuity Act were fulfilled.

7.8. Even otherwise an Act of the Sovereign holds the field in the face of any Rules formulated by an organization - public or private as in the case of the Gratuity Act applicability under the law. In the very Section-1 of the Gratuity Act it is specified that the Act is applicable to the whole of the country and to such establishments as specified under Section 1(3). In face of such applicability the IGRUA or any organization cannot make any Rule for itself which is in opposition to the Act itself.

7.9. The respondents are talking through their hat and the Ld. respondents counsel is also arguing a legally untenable position. In fact the respondents seem to so much misconceived in their swampy earth of an argument beneath their feet, that a careful reading of the provisions of Chapter-XV of the IGRUA Regulation filed through MP No. 1105/2022 Annexure SCA-1 and SCA-2 reveals that it is only a faithful provision in compliance of the Gratuity Act itself. The respondents cannot be permitted to make their own interpretation of the Act which is supreme and over and above any rule or Regulation which can be framed by any establishment of the country per its criteria laid down in the Gratuity Act. Not being so, the respondents view of Gratuity not being applicant is held unjustifiable and not worthy of consideration under established law.

8. That being the case the applicant has indeed a strong factual and legal ground for claiming Gratuity dues per the Gratuity Act. The accepted fact that the applicant has worked for five years even if with stated breaks but for more than 240 days in each of the years would meet the condition set out in Section 4 of the Act including under its appropriate provisos.

Therefore, the point of payability of Gratuity to the applicant under the Gratuity Act is held in her favour.

9. As regards payment of interest on unpaid Gratuity, it is important to examine the provisions under Section 7(3A) which reads as under:

"Section: 7

Determination of the amount of gratuity

(1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.

(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount gratuity so determined.

(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.

(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.]."

Clearly, Clause 3A of Section 7 requires payment of interest if not paid in time. The applicant relies on the law laid down by the Hon' Supreme Court in the matter of H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd. : (2003) 3 SCC 40 [LQ/SC/2003/173] in which their Lordships have held in no uncertain terms that payment of interest on delayed payment of gratuity in terms of Section 7(3-A) is mandatory and statutory compulsion. Relevant portion is extracted hereunder:

"The learned Single Judge, after considering the rival contentions, disposed of the writ petition issuing directions to the respondent-Corporation to settle the full salary and allowances for the period of suspension, gratuity, cash equivalent to leave salary, deferred leave, concession amount etc. As regards the claim of interest on gratuity, the learned Single Judge held as under:- "Since there was a doubt as to whether the petitioner is entitled to the gratuity, cash equivalent of leave salary etc., in view of the divergent opinion of the Courts during the pendency of an enquiry proceeding of a retired employee, in my view, the petitioner is not entitled to the relief of interest for the belated payment of gratuity and other amounts." It is clear from what is extracted above from the order of learned Single Judge that interest on delayed payment of gratuity was denied only on the ground that there was doubt whether the appellant was entitled to gratuity, cash equivalent to leave etc., in view of divergent opinion of the courts during the pendency of enquiry. The learned Single Judge having held that the appellant was entitled for payment of gratuity was not right in denying the interest on the delayed payment of gratuity having due regard to Section 7(3A) of the Act.

[[EMPHASIS SUPPLIED]

It was not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground. As noticed above, there is a clear mandate in the provisions of Section 7 to the employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity. There is also provision to recover the amount of gratuity with compound interest in case amount of gratuity payable was not paid by the employer in terms of Section 8 of the Act. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7(3A), no discretion was left to deny the interest to the appellant on belated payment of gratuity.

Unfortunately, the Division Bench of the High Court, having found that the appellant was entitled for interest, declined to interfere with the order of the learned Single Judge as regards the claim of interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned Single Judge could not be said to be arbitrary. In the first place in the light of what is stated above, the learned Single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 7 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned Single Judge could exercise the discretion in the matter of awarding interest and that such a discretion exercised was not arbitrary.

In the light of the facts stated and for the reasons aforementioned, the impugned order cannot be sustained. Consequently, it is set aside. The respondent is directed to pay interest @ 10% on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. The appeal is allowed accordingly with cost quantified at Rs. 10,000/-."

9.1. The law laid down is clear and applicable in the case at hand as discussed above. Therefore, once the applicant becomes payable for Gratuity as held hereinbefore, the interest is liable to be paid per Clause 3A and so this point is held in favour of the applicant.

As regards the payment of Provident Fund, the applicant asserts that till the time of severance of employment, the PF was held by the IGRUA as per Annexure-A11. The Annexure-A11 is as under:

Annexure-A11:

INDIRA GANDHI RASHTRIYA URANAKADEMI

PROVIDENT FUND SUBSCRIBER ACCOUNT FOR THE FINANCIAL YEAR 2016-17

Name : S. Sunanda Designation: Telephone Operator UAN No. 100369425120

PF A/c No. 256

Prepared & Checked by

(Niraj Tripathi)

Assistant GR-C

Authorized by

(Sachin Tandon)

Accounts Officer"

Clearly, the statement on PF deduction does specify PF deduction and interest paid to the applicant till December 2016 for F.Y. 206-17. Therefore, non-payment of PF by the respondents is not justifiable. Therefore, the respondents are liable to pay the PF as due and take all steps to ensure the same. Therefore, this point is also held in favour of the applicant. The respondents assertion that the same may be obtained from the EPFO consequent upon withdrawal of exemption under Section 17(1)(a) of the EPF & MP Act, 1952 vide order No. 23090/EPF/Lucknow/Comp/15353 dated 13/06/2017 and action thereupon vide letter dated 25/8/2017 vide which the PF amounts were transferred to the EPFO account. In order to settle this assertion by the respondents it is important that provisions of the Section 17(1)(a) are examined for which purpose the same are extracted hereunder:

"[17. Power to exempt.--

(1) The appropriate Government may, by notification in the Official Gazette and subject to such conditions as may be specified in the notification, 2 [exempt, whether prospectively or retrospectively, from the operation] of all or any of the provisions of any Scheme--

(a) any 3 [establishment] to which this Act applies if, in the opinion of the appropriate Government, the rules of its provident fund with respect to the rates of contribution are not less favourable than those specified in section 6 and the employees are also in enjoyment of other provident fund benefits which on the whole are not less favourable to the employees than the benefits provided under this Act or any Scheme in relation to the employees in any other 3 [establishment] of a similar character; or

(b) and 3 [establishment] if the employees of such 3 [establishment] are in enjoyment of benefits in the nature of provident fund, pension or gratuity and the appropriate Government is of opinion that such benefits, separately or jointly, are on the whole not less favourable to such employees than the benefits provided under this Act or any Scheme in relation to employees in any other 3 [establishment] of a similar character: 4 [Provided that no such exemption shall be made except after consultation with the Central Board which on such consultation shall forward its views on exemption to the appropriate Government within such time limit as may be specified in the Scheme.] 5* * * * * 6

(1A) Where an exemption has been granted to an establishment under clause (a) of sub-section (1),--

(a) the provisions of sections 6, 7A, 8 and 14B shall, so far as may be, apply to the employer of the exempted establishment in addition to such other conditions as may be specified in the notification granting such exemption, and where such employer contravenes, or makes default in complying with any of the said provisions or conditions or any other provisions of this Act, he shall be punishable under section 14 as if the said establishment had not been exempted under the said clause (a);

(b) the employer shall establish a Board of Trustees for the administration of the provident fund consisting of such number of members as may be specified in the Scheme; (c) the terms and conditions of service of members of the Board of Trustees shall be such as may be specified in the Scheme; 1.

Subs. by Act 37 of 1953, s. 16, for section 17. 2. Subs. by Act 33 of 1988, s. 23, for certain words (w.e.f. 1-10-1988). 3. Subs. by Act 94 of 1956, s. 3, for "factory". 4. Added by Act 33 of 1988, s. 23 (w.e.f. 1-10-1988). 5. The Explanation omitted by Act 28 of 1963, s. 11 (w.e.f. 30-11-1963). 6. Subs. by Act 33 of 1988, s. 23, for sub-section (IA) (w.e.f. 1-10-1988).

(d) the Board of Trustees constituted under clause (b) shall--

(i) maintain detailed accounts to show the contributions credited, withdrawals made and interest accrued in respect of each employee;

(ii) submit such returns to the Regional Provident Fund Commissioner or any other officer as the Central Government may direct from time to time;

(iii) invest the provident fund monies in accordance with the directions issued by the Central Government from time to time;

(iv) transfer, where necessary, the provident fund account of any employee; and

(v) perform such other duties as may be specified in the Scheme.

(1B) Where the Board of Trustees established under clause (b) of sub-section (1A) contravenes, or makes default in complying with, any provisions of clause (d) of that sub-section, the Trustees of the said Board shall be deemed to have committed an offence under sub-section (2A) of section 14 and shall be punishable with the penalties provided in that sub-section. 1

(1C) The appropriate Government may, by notification in the Official Gazette, and subject to the condition on the pattern of investment of pension fund and such other conditions as may be specified therein, exempt any establishment or class of establishments from the operation of the Pension Scheme if the employees of such establishment or class of establishments are either members of any other pension scheme or propose to be members of such pension scheme, where the pensionary benefits are at par or more favourable than the Pension Scheme under this Act. (2) Any Scheme may make provision for exemption of any person or class of persons employed in any 2 [establishment] to which the Scheme applies from the operation of all or any of the provisions of the Scheme, if such person or class of persons is entitled to benefits in the nature of provident fund, gratuity or old age pension and such benefits, separately or jointly, are on the whole not less favourable than the benefits provided under this Act or the Scheme: Provided that no such exemption shall be granted in respect of a class of persons unless the appropriate Government is of opinion that the majority of persons constituting such class desire to continue to be entitled to such benefits. 3(2A) 4 [The Central Provident Fund Commissioner may, if requested so to do by the employer, by notification in the Official Gazette, and subject to such conditions as may be specified in the notification, exempt, whether prospectively or retrospectively, any establishment from the operation of all or any of the provisions of the Insurance Scheme, if he is satisfied] that the employees of such establishment are, without making any separate contribution or payment of premium, in enjoyment of benefits in the nature of life insurance, whether linked to their deposits in provident fund or not, and such benefits are more favourable to such employees than the benefits admissible under the Insurance Scheme. (2B) Without prejudice to the provisions of sub-section (2A), the Insurance Scheme may provide for the exemption of any person or class of persons employed in any establishment and covered by that Scheme from the operation of all or any of the provisions thereof, if the benefits in the nature of life insurance admissible to such person or class of persons are more favourable than the benefits provided under the Insurance Scheme.] 1. Subs. by Act 25 of 1996, s. 7, for sub-section (IC) (w.e.f. 16-11-1996). 2. Subs. by Act 94 of 1956, s. 3, for "factory". 3. Ins. by Act 99 of 1976, s. 34 (w.e.f. 1-8-1976). 4. Subs. by Act 33 of 1988, s. 23, for certain words (w.e.f. 1-10-1988). 291(3)] Where in respect of any person or class of persons employed in an establishment an exemption is granted under this section from the operation of all or any of the provisions of any Scheme (whether such exemption has been granted to the establishment wherein such person or class of persons is employed or to the person or class of persons as such), the employer in relation to such establishment--(a) shall, in relation to the provident fund, pension and gratuity to which any such person or class of persons is entitled, maintain such accounts, submit such returns, make such investment, provide for such facilities for inspection and pay such inspection charges, as the Central Government may direct; (b) shall not, at any time after the exemption, without the leave of the Central Government, reduce the total quantum of benefits in the nature of pension, gratuity or provident fund to which any such person or class of persons was entitled at the time of the exemption; and (c) shall, where any such person leaves his employment and obtains re-employment in another establishment to which this Act applies, transfer within such time as may be specified in this behalf by the Central Government, the amount of accumulations to the credit of that person in the provident fund of the establishment left by him to the credit of that person's account in the provident fund of the establishment in which he is re-employed or, as the case may be, in the Fund established under the Scheme applicable to the establishment. 2(3A) Where, in respect of any person or class of persons employed in any establishment, an exemption is granted under sub-section (2A) or sub-section (2B) from the operation of all or any of the provisions of the Insurance Scheme (whether such exemption is granted to the establishment wherein such person or class of persons is employed or to the person or class of persons as such), the employer in relation to such establishment--(a) shall, in relation to the benefits in the nature of life insurance, to which any such person or class of persons is entitled, or any insurance fund, maintain such accounts, submit such returns, make such investments, provide for such facilities for inspection and pay such inspection charges, as the Central Government may direct; (b) shall not, at any time after the exemption without the leave of the Central Government, reduce the total quantum of benefits in the nature of life insurance to which any such person or class of persons was entitled immediately before the date of the exemption; 3*** 4* * * * * (4) Any exemption granted under this section may be cancelled by the authority which granted it, by order in writing, if an employer fails to comply,--(a) in the case of an exemption granted under sub-section (1), with any of the conditions imposed under that sub-section 5 [or sub-section (1A)] or with any of the provisions of sub-section (3); 6*** 7 [(aa)] in the case of an exemption granted under sub-section 8 [(IC)], with any of the conditions imposed under that sub-section; and] (b) in the case of an exemption granted under sub-section (2), with any of the provisions of sub-section (3); 1. Subs. by Act 28 of 1963, s. 11, for sub-section (3) (w.e.f. 30-11-1963). 2. Ins. by Act 99 of 1976, s. 34 (w.e.f. 1-8-1976). 3. The word "and" omitted by Act 33 of 1988, s. 23 (w.e.f. 1-10-1988). 4. Omitted by s. 23, ibid. (w.e.f. 1-10-1988). 5. Ins. by Act 33 of 1988, s. 23 (w.e.f. 1-10-1988). 6. The word "and" omitted by Act 16 of 1971, s. 27 (w.e.f. 23-4-1971). 7. Ins. by s. 27, ibid. (w.e.f. 23-4-1971). 8. Subs. by Act 33 of 1988, s. 23, for "(IA)" (w.e.f. 1-10-1985). 301[(c) in the case of an exemption granted under sub-section (2A), with any of the conditions imposed under that sub-section or with any of the provisions of sub-section (3A); (d) in the case of an exemption granted under sub-section (2B), with any of the provisions of sub-section (3A).] 2 [(5)] Where any exemption granted under sub-section (1), sub-section 3 [(IC)] 4, [sub-section (2), sub-section (2A) or sub-section (2B)] is cancelled, the amount of accumulations to the credit of every employee to whom such exemption applied, in the provident fund 4 [the 5 [pension] fund or the insurance fund] of the establishment in which he is employed 6 [together with any amount forfeited from the employer's share of contribution to the credit of the employee who leaves the employment before the completion of the full period of service] shall be transferred within such time and in such manner as may be specified in the Scheme or the 5 [Pension] Scheme 4 [or the Insurance Scheme] to the credit of his account in the Fund or the 5 [Pension] Fund 4 [or the Insurance Fund], as the case may be. (6) Subject to the provisions of sub-section 3 [(IC)] the employer of an exempted establishment or of an exempted employee of an establishment to which the provisions of the 5 [Pension] Scheme apply, shall, notwithstanding any exemption granted under sub-section (1) or sub-section (2), pay to the 5 [Pension] Fund such portion of the employer's contribution 7*** to its provident fund within such time and in such manner as may be specified in the 5 [Pension] Scheme. 8 [17A]. Transfer of accounts.--(1) Where an employee employed in an establishment to which this Act applies leaves his employment and obtains re-employment in another establishment to which this Act does not apply, the amount of accumulations to the credit of such employee in the Fund, or as the case may be, in the provident fund of the establishment left by him shall be transferred, within such time as may be specified by the Central Government in this behalf, to the credit of his account in the provident fund of the establishment in which he is re-employed, if the employee so desires and the rules in relation to that provident fund permit such transfer. (2) Where an employee employed in an establishment to which this Act does not apply leaves his employment and obtains re-employment in another establishment to which this Act applies, the amount of accumulations to the credit of such employee in the provident fund of the establishment left by him may, if the employee so desires and the rules in relation to such provident fund permit, be transferred to the credit of his account in the Fund or as the case may be, in the provident fund of the establishment in which he is re-employed.] 9 [17AA. Act to have effect notwithstanding anything contained in Act 31 of 1956.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Life Insurance Corporation Act, 1956.] 10[17B]. Liability in case of transfer of establishment.--Where an employer, in relation to an establishment, transfers that establishment in whole or in part, by sale, gift, lease or licence or in any other manner whatsoever, the employer and the person to whom the establishment is so transferred shall jointly and severally be liable to pay the contribution and other sums due from the employer under any provision 1. Ins. by Act 99 of 1976, s. 34 (w.e.f. 1-8-1976). 2. Subs. by Act 16 of 1971, s. 27, for sub-section (5) (w.e.f. 23-4-1971). 3. Subs. by Act 33 of 1988, s. 23, for "(IA)" (w.e.f. 1-10-1985). 4. Subs. by Act 99 of 1976, s. 27, for certain words (w.e.f. 1-8-1976). 5. Subs. by Act 25 of 1996, s. 4, for "Family Pension" (w.e.f. 16-11-1995). 6. Ins. by Act 33 of 1988, s. 23 (w.e.f. 1-10-1988). 7. The words "as well as the employees' Contribution" omitted by Act 25 of 1996, s. 7 (w.e.f. 16-11-1995). 8. Ins. by Act 28 of 1963, s. 12 (w.e.f. 30-11-1963). 9. Ins. by Act 99 of 1976, s. 35 (w.e.f. 1-8-1976). 10. Ins. by Act 40 of 1973, s. 8(w.e.f. 1-11-1973). 31 of this Act or the Scheme or 1 [the 2 [Pension] Scheme or the Insurance Scheme], as the case may be, in respect of the period up to the date of such transfer: Provided that the liability of the transferee shall be limited to the value of the assets obtained by him by such transfer.]"

9.2. Now first of all, the respondents have not filed the said circular of 13/06/2017 by which any such exemption as claimed by the respondents have been given. In its absence it is not possible to hold the respondents' assertion that any exemption was indeed granted and importantly in what terms to the IGRUA. Therefore, justifiably in its absence no benefit of doubt even can be given to the respondents.

9.3. Therefore, the Circular of 25/8/2018 filed as CA-4 in para-19 of the supplementary counter - M.P. No. 247 of 2022 cannot be held forth. What is more important is that per Section 17(1A) which is printed after Section 17(1)(a) and 17(1)(b) specifies clearly that where an exemption has been granted to an establishment under clause (a) of sub-section (1),--(a) the provisions of sections 6, 7A, 8 and 14B shall, so far as may be, apply to the employer of the exempted establishment in addition to such other conditions as may be specified in the notification granting such exemption, and where such employer contravenes, or makes default in complying with any of the said provisions or conditions or any other provisions of this Act, he shall be punishable under section 14 as if the said establishment had not been exempted under the said clause (a); (b) the employer shall establish a Board of Trustees for the administration of the provident fund consisting of such number of members as may be specified in the Scheme; (c) the terms and conditions of service of members of the Board of Trustees shall be such as may be specified in the Scheme.

9.4. The permissibility of transfer to the EPFO as claimed by the respondents is nowhere specified in 17(1)(a) and in contra, in fact, Section 17(1A) lays down that the respondents are liable to be punished under Section 14 of the Act where an exemption has been granted if conditions specified as specified in the notification granting such exemption as claimed by the respondents are not complied with. This is abundantly clear from extracts of Section 17(1A) and 17(1B) above. In the absence of submission by the respondents of exact conditions under which the exemption claimed has been given and the absence of the said notification dated 13/6/2017 stated by the respondents on their own accord in para 19 of the supplementary CA, this Tribunal cannot hold that the said transfer to EPFO is justifiable under the PF Act and any other law claimed by the respondents. Importantly there is no provision shown by the respondents whereby any transfer of earlier collected PF amounts are transferrable to the EPFO under the said exemption notification and how would the concerned employees then obtain the said PF amount from the EPFO and under what provisions and procedures.

9.5. The Section 17(1A) also specifies setting up of a Board of Trustees for the administration of the Provident Fund. The respondents have said nothing about such Trust and how have the respondents managed the PF amounts of their employees subsequent to the establishment of the specified Board under provisions of Section 17(1A)(b) to (d). The fact emerging from this analysis is that the respondents may on the other hand be liable for prosecution under Section 14 of the PF Act which prosecution is of course to be dealt with by appropriate Court of law.

9.6. For the purposes of the lis in the context of the assertions by the applicant when read with the contra position of the respondents we are of firm view that the respondents are liable to pay the PF amounts to the applicant and no lee way can be given to them to escape from this point by shunting it off to the EPFO on the mere unilateral assertion without any justifiable documentary evidence and legal support. Therefore, the point of payability of the withheld PF amounts of the applicant by the respondents to the applicant is held in favour of the applicant.

10. As regards other relief such as claimed in para 8(b) other than Gratuity and PF, the respondents have specified in the impugned order dated 10/12/2020 that as the applicant was on

"Short term contract with break between consecutive renewals, the issue of accumulated leave and its encashment does not arise."

The applicant has countered this position by submitting that she was granted earned leave from 30/4/2016 to 29/5/2016 (30 days) - para 4.30 refers. The respondents have in their CA vide M.P. No. 1332/2021 not specifically rebutted this point of grant of stated earned leave for the stated period in any of the paras and have simply stated in paras 38/40 that the same is not admissible to the applicant. In the supplementary CA filed vide M.P. No. 1105/2022 the respondents have filed Circular dated 29/3/1988 - 'Employees Service Rules and Regulations of IGRUA [Annexure SCA-1]. The para 3 of this Regulation is important and the same is extracted hereunder:

Para-3 of the Regulation

3.(i) Unless otherwise specifically provided in these all employees regulations, they shall apply of the Akademi;

Provided that in respect of part-time, casual, temporary or 'Badli' employees or those contract and/or separate agreement, the Akademi may, by general or special order, exclude or limit the application of any of these regulations.

(ii) Nothing contained these regulations shall have the effect of altering the provisions of any special law for the time being in force.

10.1. What the para above implies is that the Regulation provisions are applicable to employees on contract as per conditions specified by the Akademi by general or special order which may exclude or limit the application of the said Regulation. Now, if we examine further the Chapter VII of the said Regulation we find that it specifies conditions of admissibility and grant of leave. The same is extracted hereunder:

Chapter VII of the Regulation:

"CHAPTER VII

LEAVE

General Conditions regarding all kinds of leave

30. No kind of leave can be claimed as of right. The Authority empowered to grant leave has the discretion to refuse or revoke leave according to the exigencies of the Akademi's work.

31. All leave shall be applied for in writing addressed to the appropriate authority within the time prescribed by the relevant Regulations a holiday can be prefixed/suffixed to Sunday/Weekly off day or any type of leave with prior approval of the competent authority. When this is allowed, such days will not be counted as part of leave. Weekly off day/Holidays intervening during the period of leave shall be counted as part of the leave.

32. If leave is refused, postponed, or revoked, the reason there for shall be communicated to the employee concerned.

33. All leave at the credit of an employee shall lapse on the date of retirement or termination of service.

Provided, however, that in the case of Earned Leave an employee may be allowed encashment on superannuation, subject to maximum of 240 days.

34. Casual leave shall not be combined with any other kind of leave admissible under the rules and shall be allowed at the rate of 12 days in a Calender year and shall not be accumulated.

35. - Earned Leave An employee on completion of 12 months continuous service shall be eligible for 30 days Earned Leave. On completion service shall be eligible for 30 days Earned Leave. of 12 months service, his Earned leave account shall be credited with 30 days and thereafter at the rate of 2-1/2 days per month. Earned leave can be accumulated up to 240 days.

36. The accumulation of Earned Leave shall be restricted to 240 days and the balance of leave, if any, shall lapse unless the employee had made an application for the grant of leave and the same In such cases the refused before expiry of the 12 months period. employee may be authorised to carry forward to the next leave period the full amount of leave assessed as above provided that the number of days of Earned Leave carried over in excess of 240 shall not exceed the period of leave applied for by him and refused in writing owing to exigencies of the Akademi's work.

40. Extraordinary Leave: The competent authority may grant Extraordinary Leave to an employee who has completed one year's continuous service. This Extraordinary Leave will be without pay and allowances and subject to a maximum of 180 days to be calculated at the rate of 30 days for each completed year of service. An employee with less than one year's service may be granted extraordinary leave up to a maximum of 15 days.

Extraordinary leave may be granted to an employee in special circumstances, when no other leave is admissible.

41. Leave/Cash Equivalent: An employee shall be paid the cash equivalent under this clause as a one-time settlement at the following rate at the time of superannuation as stated in Regulation 33: on as stated in Regulation 33.

Cash Equivalent:

Pay admissible on the date of retirement plus dearness allowance admissible on that date.

The number of days of unutilised earned leave at the credit on the date of retirement subject to a maximum of 240 days.

In case an employee dies while in service, the cash equivalent of the leave salary that the deceased employee would have got had he gone on earned leave that would have been due and admissible to him but for the death on the date immediately following the death and in any case not exceeding leave salary for 240 days, shall be paid to his family."

10.2. Clearly the Regulation does not specify any where any limitation or restriction with regards to earned leave or for that matter any leave specifically in the context of a contract employee. For this to happen the respondents should have had a special order as specified in para-3 extracted above. Even otherwise as per the definition of an employee given in Regulation-6 under Chapter-II: DEFINITIONS - defines only permanent employee and temporary employee. The relevant portion is extracted hereunder:

"CHAPTER-II

DEFINITIONS

6. Unless there be something repugnant in the subject or context, the terms defined in the chapter are used in these regulations in the sense here explained:

(1) "Akademi" means the Indira Gandhi Rashtriya Uran Akademi (and the Regional Centres, if any) and set up by the Society.

(2) ...

(3)...

(11) "Permanent employee" means an employee who has completed a prescribed probationary period and who has been confirmed thereafter as regular member of the staff against the "permanent" sanctioned establishment.

(12) "Temporary employee" means an employee whose services have been engaged for a specified period, which may be extended from time to time for work of temporary status against the "temporary" sanctioned establishment."

Clearly, the applicant falls under the category of a "temporary employee" and the definition subsumes the word employee thereby also including it in its definition. What this implies is that per the Regulation-35 under Chapter VII - Leave rules extracted above, an "An employee on completion of 12 months continuous service shall be eligible for 30 days Earned Leave..". This is a condition which will hit the applicant. Because, even if she is an employee, albeit a 'temporary employee', she has to be in 12 months continuous service which we have seen is not established per the pay slips. Hence straight away it can be held that the applicant is not entitled to Earned leave and so not entitled for leave encashment but, the letter dated 15/5/2009 [Annexure-8 of OA] on the other hand clearly states that the applicant will be entitled for 15 days EL apart from 5 days Medical, 5 days Casual and 1 day RH. The said letter already extracted earlier is again extracted hereunder:

Annexure A-8 dated 15/5/2009:

"Indira Gandhi Rashtriya Uran Akademi

Ref. IGRUA. PF;09:248

Mrs. Sunanda

Emp. Code-256

Telephone Operator

IGRUA

EXTENTION CONTRACTUAL APPOINTMENT

Your terms of present contractual appointment has been extended for a further period of six months w.e.f. 19/05/2009 to 18/11/2009. All other terms and condition as mentioned in our letter No. IGRUA: HRD Appt: 08:51 dated 5th Aug. 2008 will remain unchanged except the following clauses with stand amended as under:-

(c) During the period of contract, you will be paid a consolidated salary of Rs. 4000/- (Rupees Four Thousand only). In addition, you will be paid Aviation & Transport Allowance as per rules of the Akademi.

(d) This contractual appointment can be terminated by giving one month notice or Rs. 4000/- (Rupees Four Thousand Only) in lieu thereof, without assigning any reason.

(f) During the period of contract, you will be entitled for 15 days EL, 5 days Medical, 5 days Casual & 1 days RH.

[emphasis supplied]

(V.K. Verma)

AIR MARSHAL (RED)

Director

C.C.

Assistant Accounts Officer, IGRUA

Manager Services, IGRUA"

Now, if we read this with the earlier appointment letter dated 05/08/2008, we see that the terms have been changed on extension as may be seen in the extracts of Annexure SCA-1 to the CA filed by respondents already reproduced earlier. Now this extension letter with a slightly changed employment conditions has been extended from time to time till 2016 and we see no document filed by the respondents which would aver that the terms have been changed on subsequent extensions. With this situation, it follows that at the time of termination of the contract in December 2016, this condition was very much alive and so the applicant becomes entitled to the benefits stated therein being the latest engagement letter over and above the 2008 letter which may also be seen again here under.

"Indira Gandhi Rashtriya Uran Akademi

Ref. IGRUA:HRD: Appt:51

Mrs. Sunanda

5th Aug, 2008

W/o. shri PS Jayasankar

IGRUA Campus

Fursatganj, Raebareli

It gives us pleasure to inform you that, the Akademi is pleased to appoint you as Telephone Operator on contract basis on the terms & conditions hereunder:

(a) This contractual appointment will be valid for a period of Six Months w.e.f. 6th Aug 2008 to 05th Feb 09. This contractual appointment will automatically lapse on completion of Six months.

(b) You will be governed by the Rules as framed amended revised by the Akademi from time to time in respect of its contractual employees.

(c) During the period of contract, you will be paid a consolidated salary of Rs. 4000/- (Rupees Four Thousand Only) per month. In addition, you will not be entitled to any allowances or benefits, facilities etc. applicable of the Akademi.

(d) This contractual appointment can be terminated by giving fifteen days notice or Rs. 2000/- (Rupees Two Thousand in lieu thereof, either side.

(e) This contractual appointment would be on a full time basis not accept any other contractual/retainer appointment with organization.

(f) During the period of contract you will be entitled for 5 days Casual Leave & 5 days Sick Leave only.

(g) You will not be provided residential accommodation inside the campus.

(h) You may be required to work in shifts/split shifts as may be decided by the Akademi from time to time.

(i) Though your headquarters will be at Fursatganj, you would be required to work at any outstation in the event of any such requirement arises. TA/DA shall be paid for such out station duties as per normal rules applicable to any serving employee of an equivalent rank in the Akademi.

3. If the contractual appointment on the terms & conditions in paragraphs (a) thru (i) above is acceptable to you, please return us the attached duplicate copy of this letter duly signed by you in a token of your acceptance of the appointment and join the Akademi by 6th Aug 08. In case you fail to join by 6th Aug 08, it shall be presumed that you have no interest to join the Akademi and this appointment will automatically get cancelled.

(S.C. MALHAN)

AIR VICE MARSHAL (Retd.)

DIRECTOR

CC. Manager - Finance

I accept the contractual appointment on the terms and conditions as stated above.

Clearly therefore, the applicant is entitled to 15 days EL for every extension granted to her. The extensions for example reproduced as Annexure-A-6 above do not change the conditions of EL anywhere. Hence the respondents are liable to honor their own commitment given in the extension letter (s) above. More so, the respondents have not filed any special order or relied upon any such specific order which would override this contract condition. Even otherwise as per para 3(i) of the Regulation extracted earlier, there is provision that unless otherwise specifically provided in these all employees regulations, they shall apply of the Akademi, provided that in respect of part-time, casual, temporary or 'Badli' employees or those contract and/or separate agreement, the Akademi may, by general or special order, exclude or limit the application of any of these regulations. The said Regulation is again extracted hereunder for easy reference:

Para-3 of the Regulation

3.(i) Unless otherwise specifically provided in these all employees regulations, they shall apply of the Akademi;

Provided that in respect of part-time, casual, temporary or 'Badli' employees or those contract and/or separate agreement, the Akademi may, by general or special order, exclude or limit the application of any of these regulations.

Clearly therefore, in absence of any Circular or order concerning the applicant, even as per para-3 above, a mere bland denial that earned leave is not applicable to a contract employee or it is not specified in the contract employment letter does not take away the onus on the respondents to actually have a special order on the anvil as required by their very own para-3 of their very own Regulation. Not having any such order and gallivanting into it now in a bland manner cannot turn the tide in their favour as their assertion runs contra to the very provisions they swear upon. They cannot be allowed to run with the hare and hunt with the hound. Double face is not permissible under law. Hence this point of denial of earned leave does not stand the scrutiny per the provisions of the very Regulation relied upon by the respondents on account of any supportive special order as required and so, the point of claim of earned leave by the applicant has to be held in favour of the applicant. Hence on this count the EL and its encashment is liable to be paid to the applicant and so this point is held in favour of the applicant.

11. As regards Notice pay and damage for not giving notice before termination of contract employment, the contract letter of 2008 does state in condition (d) that the contractual appointment can be terminated by giving fifteen days notice or Rs. 2000/- (Rupees Two Thousand in lieu thereof, either side. The same is reproduced hereunder again:

(d) This contractual appointment can be terminated by giving fifteen days notice or Rs. 2000/- (Rupees Two Thousand in lieu thereof, either side.

Now if we read the extension letter of 15/5/2009, we see that it states that all conditions as specified in letter dated 05/08/2008 will remain unchanged except those stated thereunder in the 15/5/2009 letter extracted above. What this implies is that the earlier condition of termination notice pay continues even in the 2009 letter. Inescapably, we are bound to go by the latest letter of engagement as already held above during discussion on the issue of earned leave encashment. Hence this continuity of argument would prevail and per the last contract letter, the applicant has to be given the benefit of termination notice pay. The respondents have not been able to also show any Regulation by which this could be admissible to the applicant. In the absence of same, this claim has to be granted to the applicant and so this part of the relief is also admissible.

12. As regards the reliance on the judgments of this Tribunal in OAs 485/2018, the O.A. deals with the issue of regularization claimed by the applicant which has been dismissed by this Tribunal vide judgment 25/02/2020. This obviously is quite different from the claim for Gratuity and other dues as discussed herein. As regards RA 04/2020 in re OA 485/2018, the same was dismissed for reasons stated therein which in any case have no nexus with the lis at hand with regards to the specific claims herein. As regards OA 150/2020, the same also has no nexus with the lis at hand because it concerns relief concerning regularization which is different from the reliefs sought in the case at hand. As regards the decision in the WP 21826 of 2020, it was a challenge by the applicant of the order of this Tribunal dated 15/10/2020 passed by the Tribunal in O.A. 150/2020 which ab initio did not have nexus with the reliefs sought in this O.A. Hence these references are not of use herein.

13. The citations given by the Ld. applicant counsel in his RA with regards to judgments of higher courts are pronouncements on Gratuity issues which in any case has been dealt with at length qua the facts in the case at hand. They do also support the reasoning in this judgment herein. For example the Hon Apex court in the matter of Sudhir Chandra Sarkar v. Tata Iron & Steel in its judgment of 27/03/1984, Equivalent citations : 1984 AIR 1064 : 1984 SCR (3) 325 has held as under:

"Pension and gratuity coupled with contributory Provident Fund are well recognised retiral benefits. These retiral benefits are now governed by various statutes such as the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the Payment of Gratuity Act, 1972. These statutes were legislative responses to the developing notions of fair and humane conditions of work, being the promise of Part IV of the Constitution. Art. 37 provides that the provisions contained in Part-IV-Directive Principles of State Policy, shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." Art. 41 provides that 'the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.' Art. 43 obligates the State to secure, by suitable legislation to all workers, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure ........' The State discharged its obligation by enacting these laws. But much before the State enacted relevant legislation, the trade unions either by collective bargaining or by statutory adjudication acquired certain benefits, gratuity being one of them. Pension and gratuity are both retiral benefits ensuring that the workman who has spent his useful span of life in rendering service and who never got a living wage, which would have enabled him to save for a rainy day, should not be reduced to destitution and penury in his old age. As a return of long service he should be assured social security to some extent in the form of either pension, gratuity or provident fund whichever retiral benefit is operative in the industrial establishment. It must not be forgotten that it is not a gratuitous payment, it has to be earned by long and continuous service.

Can such social security measures be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. In Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh wherein this Court observed that : "a Scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a period payment of a stated sum." Undoubtedly both have to be earned by long and continuous service.

For centuries the courts swung in favour of the view that pension is either a bounty or a gratuitous payment for local service rendered depending upon the sweet will or grace of the employer not claimable as a right and therefore, no right to pension can be enforced through court. This view held the field and a suit to recover pension was held not maintainable. With the modern notions of social justice and social security, concept of pension underwent a radical change and it is now well-settled that pension is a right and payment of it does not depend upon the discretion of the employer, nor can it be denied at the sweet will or fancy of the employer. Deokinandan Prasad v. State of Bihar & Ors., State of Punjab & Anr. v. Iqbal Singh and D.S. Nakara & Ors. v. Union of India. If pension which is the retiral benefit as a measure of social security can be recovered through civil suit, we see no justification in treating gratuity on a different footing. Pension and gratuity in the matter of retiral benefits and for recovering the same must be put on par.

The question then is: Can the court ignore Rule 10 If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice or fair-play must be treated as utterly arbitrary and unreasonable and discarded. If rules for payment of gratuity became incorporated in the Standing Orders and thereby acquired the status of statutory condition of service, an arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary. Sec. 4 of the 1946 Act which confers power on the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions would enable this Court to reject that part of Rule 10 conferring absolute discretion on the employer to pay or not to pay the gratuity even if it is earned as utterly unreasonable and unfair. It must be treated as ineffective and unenforceable. It is well-settled that if the Certifying Officer and the appellate authority under the 1946 Act while certifying the Standing Orders has power to adjudicate upon the fairness or reasonableness of the provisions of any standing orders, this Court in appeal under Art. 136 shall have the power to do the same thing when especially it is called upon to enforce the unreasonable and unfair part of the Standing Order. It therefore follows that part of Rule 10 which confers absolute discretion on the employer to pay gratuity even if it is earned, at its absolute discretion is ineffective and unenforceable. This approach does not acquire any precedent but if one is needed the decision of this Court in Western India Match Company Ltd. case clearly rules to that effect. In that case, the company relied on a special agreement which was to some extent in derogation of the provisions of the certified Standing Order. The Court observed that to uphold such special agreement would mean giving a go-by to the principle of three party participation, in the settlement of the terms of employment, as represented by the certified Standing Orders and therefore, the inconsistent part of special agreement is ineffective and unenforceable. The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez faire days and utterly inconsistent with the modern notions of fair industrial relations and therefore, it must be rejected as ineffective and hence unenforceable.

Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antithesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist. Therefore, also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable.

The High Court reversed the decree of the trial court on the sole ground that Rule 10 confers an absolute discretion on the respondent-company to pay or not to pay gratuity at its sweet will. Once Rule 10 is out of the way, the judgment of the High Court has to be reserved. Accordingly, this appeal succeeds and will have to be allowed.

The trial court decreed the plaintiff's suit with costs and with interest at 6% per annum. Interest at 6% per annum has become utterly irrelevant in these days with devaluation of the rupee. Further in our opinion, the company declined to meet its obligation on an utterly unreasonable stand and denied to the plaintiff or a period of a quarter of a century what the plaintiff was legitimately entitled without the slightest shadow of doubt. Therefore, while allowing the appeal in order to compensate the loss suffered by the plaintiff who died before enjoying the fruits of his decree, we direct that the interest shall be paid at 15% per annum and full costs throughout.

Accordingly, this appeal is allowed and the judgment and decree of the High Court are set aside and the decree of the trial court is restored with this modification that the interest shall be paid on the principal amount of Rs. 14,040 at 15% from 1.7.1959 till payment and full costs throughout be paid to the plaintiff. The costs plaintiff in this Court is quantified at Rs. 5,000. The payment shall be made within a period of two months from today."

Similarly the Hon' High Court Allahabad in it judgment in the matter of U.P.S.R.T.C. Thru Its R.M. Vikasnagar Kanpur vs. State of U.P. & Others, Writ - C No. 6971 of 2017, decided On, 28 August 2019, it has been held by Hon Justice Dr. Y.K. Srivastava, J., as under:

"21. A conjoint reading of the aforementioned provisions leads to the inference that gratuity becomes payable to an "employee" on his superannuation after he has rendered "continuous service", for not less than five years. The computation of the amount payable as gratuity is to be made at the rate of fifteen days' wages, for every completed year of service or part thereof in excess of six months, based on the rate of wages last drawn by the employee concerned. The expression "completed year of service" has been defined under Section 2(b) as continuous service for one year and the term "continuous service" is defined under Section 2(c) as per the terms of Section 2-A of the P.G. Act, 1972 which is to mean uninterrupted service including service which may be interrupted on account of certain exigencies specified therein.

22. It, therefore, follows that the P.G. Act, 1972 does not make any distinction between an employee on the basis of the fact that the employee is paid daily wages or weekly wages or monthly wages. The only condition is that he should be employed by the employer on wages in an establishment covered by the P.G. Act, 1972 and that he should be in continuous service as required under Section 2-A and that he should have completed a minimum of five years of service in the said capacity. The computation of gratuity as per terms of Section 4 is to be made at the rate of fifteen days' wages for every completed year of service or part thereof in excess of six months based on the rate of wages last drawn.

23. It is thus clear that an employee, subject to fulfillment of the other conditions, is entitled to gratuity for the period he was in employment of the employer irrespective of the fact whether his employment was of a regular nature or whether he was employed on a casual basis or temporary basis or as a daily wager.

24. In this regard reference may be had to the judgment in the case of Baban Vs. Estate Manager, Maharashtra State Farming Corporation Ltd. & Ors. 5 wherein it was held as follows:

"15. This brings me to the first contentious issue raised as regards the manner of calculating the number of days worked so as to be entitled for gratuity. The primary requirement is that an employee must work continuously with an employer at least for 5 years so as to be eligible for gratuity, notwithstanding whether he has put in temporary service or as a daily wager or in any other manner."

25. The question as to whether benefit of gratuity could be denied to an employee who had been in more than 25 years of continuous service out of which 22 years were as a daily wager, fell for consideration in the case of Netram Sahu Vs. State of Chhattisgarh & Anr. and upon considering the provisions contained under Section 2(e) read with Section 2-A of the P.G. Act, 1972, it was held that there was no justifiable reason to deny benefit of gratuity to the employee which was his statutory right, and the question as to from which date his services were regularised was of no consequence for the purposes of calculating the total length of service for computing the gratuity payable.

26. In view of the foregoing discussions, it follows that the entitlement to receive gratuity flows from the provisions of the P.G. Act, 1972 and an "employee" having fulfilled the necessary preconditions for claiming entitlement in terms thereof would be liable to be paid the gratuity amount due to him irrespective of the fact whether his employment was of a regular nature or whether he was employed on a casual basis or temporary basis or as a daily wager.

27. In a case where the engagement was initially as a daily wager and subsequently the services were regularised the question as to from which date the services were regularised would be of no consequence for calculating the total length of service for claiming gratuity.

28. It may be noticed that the P.G. Act, 1972 was enacted to introduce a scheme for payment of gratuity for certain industrial and commercial establishments as a measure social security. The significance of the legislation lies in the acceptance of the principle of payment of gratuity as a compulsory statutory retiral benefit. The Act accepts, as a principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments. The main purpose and concept of gratuity is to provide for terminal benefits to a workman upon his superannuation, or on his retirement or resignation, or on his death or disablement due to accident or disease.

29. The P.G. Act, 1972 being thus a welfare legislation meant for the benefit of the employees who serve their employer for a long time, it would be the duty of the employer to pay gratuity amount to the employees rather than denying the benefit on some technical ground.

30. Applying the rule of beneficent construction, the provisions of the P.G. Act, 1972 are to be interpreted liberally so as to give it a wide meaning rather a restrictive meaning which may negate the very object of the enactment. A beneficial legislation, it is well settled, as to be construed in its correct perspective so as to fructify the legislative intent underlying its enactment.

31. In construing a remedial statute courts are to give it the widest amplitude which its language would permit. The principle of applying a liberal construction to a remedial legislation has been emphasised in the Construction of Statues by Crawford 7 pp. 492-493 in the following terms:

"...Remedial statutes, that is, those which supply defects, and abridge superfluities, in the former law, should be given a liberal construction, in order to effectuate the purposes of the legislature, or to advance the remedy intended, or to accomplish the object sought, and all matters fairly within the scope of such a statute be included, even though outside the letter, if within its spirit or reason."

32. To a similar effect is the observation made by Blackstone in Construction and Interpretation of Laws 8, by stating as under:

"It may also be stated generally that the courts are more disposed to relax the severity of this rule (which is really a rule of strict construction) in the case of statutes obviously remedial in their nature or designed to effect a beneficent purpose."

33. In the context of beneficial construction as a principle of interpretation, it has been observed in Maxwell on The Interpretation of Statutes 9 as follows:

"...where they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, they will often choose the former. Beneficial construction is a tendency, rather than a rule."

34. Further, in the same treatise, in the context of industrial legislation, it has been stated as follows:

"Industrial legislation provides a fruitful field for the application of the tendency towards beneficial construction..."

35. The principle of applying a liberal construction to a labour welfare legislation was emphasised in the case of Workmen of M/s. Firestone Tyre & Rubber Company of India Pvt. Ltd. Vs. Management & Ors. 10 where in the context of the provisions of the Industrial Disputes Act, 1947, it was observed as follows:

"35. ...We are aware that the Act is a beneficial piece of legislation enacted in the interest of employees. It is well settled that in construing the provisions of a welfare legislation, courts should adopt, what is described as a beneficent rule of construction. If two constructions are reasonably possible to be placed on the section, it follows that the construction which furthers the policy and object of the Act and is more beneficial to the employees, has to be preferred..."

36. The mode of interpretation of a social welfare legislation, in the context of the provisions of the Industrial Employment (Standing Orders) Act, 1946, came up for consideration in the case of B.D. Shetty & Ors. Vs. CEAT Ltd. & Anr. 11, and it was held as follows:

"12. ...A beneficial piece of legislation has to be understood and construed in its proper and correct perspective so as to advance the legislative intention underlying its enactment rather than abolish it. Assuming two views are possible, the one, which is in tune with the legislative intention and furthers the same, should be preferred to the one which would frustrate it."

37. The principle of applying a liberal construction to a beneficial legislation having a social welfare purpose was reiterated in the context of the P.G. Act, 1972 in the case of Allahabad Bank & Anr. Vs. All India Allahabad Bank Retired Employees Association 12, and it was observed as follows:

"16. ...Remedial statutes, in contradistinction to penal statutes, are known as welfare, beneficent or social justice oriented legislations. Such welfare statutes always receive a liberal construction. They are required to be so construed so as to secure the relief contemplated by the statute. It is well settled and needs no restatement at our hands that labour and welfare legislation have to be broadly and liberally construed having due regard to the Directive Principles of State Policy. The Act with which we are concerned for the present is undoubtedly one such welfare oriented legislation meant to confer certain benefits upon the employees working in various establishments in the country."

38. A similar view was taken with regard to adopting the beneficial rule of construction in respect of social welfare legislation, particularly in the context of the P.G. Act, 1972 in the case of Jeewanlal Ltd. & Ors. Vs. Appellate Authority under the Payment of Gratuity Act & Ors. 13,...."

The law laid down is rather more than clear and the respondents have no choice but to abide by the same.

14. This then brings us to the end of a marathon of discussion on the various rival contentions and it is time to pronounce the final shape of the order.

15. Therefore, in light of the discussions heretofore, it is directed that:

i. Gratuity shall be paid to the applicant as per the Gratuity Act specification along with simple interest at the rate specified not exceeding the rate notified by the Central Government from time to time for repayment of long terms deposits for the five years for which the Gratuity is admissible namely:

ii. The Provident Fund amount withheld by the respondents shall be paid as such;

iii. The earned leave as admissible per the contract condition of letter dated 15/5/2009 [Annexure A-8 of O.A.];

iv. Notice pay in lieu of termination is payable as per engagement letter dated 05/08/2008 [Annexure CA-1 in the supplementary CA] read with letter dated 15/05/2009;

v. All the above payments shall be paid no later than three months from the date of receipt of a certified copy of this order at the pain of possible contempt;

16. The O.A. is allowed in these terms.

17. No costs.