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TMI Blog2012 (6) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... workman was not entitled to have the entire period of service to be considered eligible for gratuity on account of his absence which was not duly approved. 3. The facts in short leading to filing this petition deserve to be set out as under; 4. The petitioner, employer is a registered Company registered under the Companies Act, 1913. The petitioner engaged the respondent workman from 19.02.1974 to 28.01.2002. On completion of this period, the petitioner was paid gratuity amount of Rs. 30773/- and this amount was treated to be an amount not meeting with the requirement of law and, therefore, the workman concerned was constrained to file application before the Controlling Authority inter alia contending that in light of the provision of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the challenge to vires would not survive, as the Division Bench of this Court has also upheld the vires of provision of Section 2A of Payment of Gratuity Act, in case of PBM Ploytex Ltd vs. Union of India Ors. 5. Learned advocate Shri Chauhan for the petitioner contended that the absence of workman, even if it is not termed to be break in service, should not have entitled the workman for receiving gratuity for the period on which he actually did not perform his duties. The concept of payment of gratuity is in respect of payment to the employees on account of his service rendered and if that concept is borne in mind, then period on which there was an unauthorized absence on the part of the workman, the same could not have been cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations 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; (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 hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for such period if he has actually worked for not less than seventy five per cent. of the number of days on which the establishment was in operation during such period.] 8. Thus, if one looks at the provision, then one would appreciate that Section 2A clearly takes care of the situation where the employment, as such, is not contended to have come to an end which is in the present case and there is an absence even if the said absence is not authorized or approved or condoned. If the order treating the same absence to be a break in service is not expressly based, then the factum of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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