At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE R. K. DESHPANDE
For the Petitioner: None. For the Respondents: R1 to R2, K.L. Dharmadhikari, AGP.
1. In both these matters, the respondent No.3, was working as Choukidar and both of them had completed 19 and 17 years service respectively. The authorities below have recorded the finding that both of them worked throughout the year in the establishment of the petitioner and hence, were entitled to payment of gratuity under Section 4(2) of the Payment of Gratuity Act.
2. It is the case of the petitioner in both these petitions that the respondent No.3 in both these petitions were working in the seasonal establishment and hence they were entitled to gratuity at the rates specified in second proviso below subsection (2) of Section 4 of the Payment of Gratuity Act.
3. The question involved in the present case is covered by the decision of this Court in Writ Petition No. 3023 of 2009 in the case of Madhaodas Janidas Mohta Ginning and Pressing Factory v. Hirabai Mohan Chavan and other connected matters, delivered on 20.04.2017. Para 6 of the said decision being relevant, is reproduced below.
"6.Merely because an establishment is categorized as seasonal establishment, does not advance the case to claim benefit under the second proviso so as to qualify for the benefit of payment of gratuity at a reduced rate. To avail the benefit of second proviso below subsection (2), two things are required to be established - (a) that an employee works only in season, and (b) that he is not employed throughout the year. Thus, a real test is the period of employment of an employee in particular establishment for the purposes of second proviso. It is, therefore, the burden upon an employer to establish that an employee was working only during the season in the seasonal establishment and was not so employed throughout the year. It is for an employer to come forward with such a specific case and lead evidence to establish it. It is a social welfare legislation, to be construed in beneficial way to the employees and unless the burden is satisfactorily discharged, a legal right cannot be taken away"
4. In the present case, the petitioner employer has failed to establish that the cases of respondent no.3 are covered by second proviso below subsection (2) of Section 4 of the said Act. There is no such evidence brought o
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n record. 5. In view of above, there is no substance in these petitions. The same are dismissed. 6. If any amount is deposited by the petitioners, the same is allowed to be withdrawn by the respondent No. 3 in both petitions.