AHMEDABAD MUNICIPAL TRANSPORT SERVICE vs GAUTAMBHAI PARSOTTAMBHAI MAKWANA
- Court
- Gujarat High Court
C/SCA/24650/2022 JUDGMENT DATED: 29/10/2026
(GJHC240776232022)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24650 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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AHMEDABAD MUNICIPAL TRANSPORT SERVICE
Versus
GAUTAMBHAI PARSOTTAMBHAI MAKWANA & ORS.
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Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
AGP MRUNAL DHOLARIA for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 29/10/2026
ORAL JUDGMENT
1. Draft Amendment is allowed. Amendment to be carried out
forthwith.
2. Issue Rule . Learned AGP waives service of Rule for
Respondent No. 2 and 3.
3. By way of the present petition, the petitioner has prayed to
quash and set aside the order dated 27.08.2021 passed by the
Appellate Authority, Payment of Gratuity Act, 1972 and Deputy
Labour Commissioner, Ahmedabad Division in Gratuity Appeal
No. 119/2020 as well as the order passed by Respondent No. 3
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C/SCA/24650/2022 JUDGMENT DATED: 29/10/2026
(GJHC240776232022)
i.e., Controlling Authority, Payment of Gratuity Act, 1972 and
Assistant Labour Commissioner at Ahmedabad dated 13.08.2020
in Gratuity Application No. 133/2019 preferred by the present
Respondent No. 1 ordering the petitioner to pay an additional
amount of Rs. 67,413/- towards gratuity with interest @10% per
annum with effect from 06.05.2019 till the date of actual
payment.
4. Learned Advocate Mr. HS Munshaw for the Petitioner would
submit that:-
4.1 That the Respondent No. 1 herein was offered work as a
Daily Wager / Driver depending upon the availability of work and
it is only pursuant to the settlement arrived at between the Union
and the Petitioner establishment that he came to be treated as
Permanent Employee w.e.f. 01.07.2014 and was superannuated
on 31.03.2019 on attaining the age of superannuation and thus,
both the authorities have misread and misinterpreted the
provisions of 2(A)(i) of the Act and thus, argued to allow the
present Petition.
4.2 That concerned employees are not covered by the
substantive part of the definition of the continuous service and
are not entitled for the payment of gratuity for the Badli period
and therefore, grant of gratuity for continuous period of 22 years
de-hors the provisions of law.
4.3 That both the authorities have failed to appreciate that the
Respondent No. 1 herein had not worked between 23.05.2002 to
January 2007 as a Daily wager therefore, the said period was not
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C/SCA/24650/2022 JUDGMENT DATED: 29/10/2026
(GJHC240776232022)
required to be counted.
5. Though served none appears for the Respondent No. 1.
6. Heard learned Advocates for the respective parties.
7. The question falls for consideration is as to whether the
concerned employee is entitled to gratuity for the period in which
there was no work allotted to such employee?
7.1 In this regard it would be relevant to refer the judgment in
the case of Lalappa Lingappa & Ors vs Laxmi Vishnu Textile
Mills Ltd reported in (1981) 2 SCC 238, wherein, it is held in
paragraph No. 15 and 18 as under:-
“15. In our judgment, the High Court rightly observed: "It is
important to bear in mind that in Explanation I the legislature
has used the words 'actually employed'. If it was contemplated
by Explanation I that it was sufficient that there should be a
subsisting contract of employment, then it was not necessary
for the legislature to use the words 'actually employed'." It is
not permissible to attribute redundancy to the legislature to
defeat the purpose of enacting the Explanation. The expression
'actually employed' in Explanation I to Section 2(c) of the Act
must, in the context in which it appears, mean 'actually
worked'. It must accordingly be held that the High Court was
right in holding that the permanent employees were not
entitled to payment of gratuity under subsection (1) of Section
4 the Act for the years in which they remained absent without
leave and had 'actually worked for less than 240 days in a year.
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C/SCA/24650/2022 JUDGMENT DATED: 29/10/2026
(GJHC240776232022)
16.XXX
17.XXX
18. The Report of the Badli Labour Enquiry Committee,
Cotton Textile Industry, 1967, no doubt shows that the badli
employees are an integral part of the textile industry and that
they enjoy most of the benefits of the permanent employees;
but there may not be any continuity of service as observed by
this Court in the Delhi Cloth Mill’scase (supra). The badli
employees are nothing but substitutes. They are like 'spare
men' who are not 'employed' while waiting for a job : Conlon v.
Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya & Ors. taking
the view to the contrary, does not appear to lay down a good
law. Accordingly, we uphold the view that the badli employees
are not covered by the substantive part of the definition of
'continuous service' in s.2(c), but came within Explanation I
and, therefore, are not entitled to payment of gratuity for the
badli period, i.e. in respect of the years in which there was no
work allotted to them due to their failure to report to duty.”
8. Tested on the principles of the above judgment, if the
present Respondent No. 1 is made permanent from 01.07.2014,
the question which remains is whether he would be entitled for
gratuity on becoming permanent employee for the period in
respect of the years in which there was no work allotted to him,
which is squarely covered by the aforestated judgment and
therefore, the work not allotted to him during such period, cannot
be considered for the purpose of counting gratuity.
9. In view of the above, the Petition stands allowed in part .
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C/SCA/24650/2022 JUDGMENT DATED: 29/10/2026
(GJHC240776232022)
The impugned order dated 27.08.2021 passed by the Appellate
Authority in Gratuity Appeal No. 119/2020 as well as the order
passed by Controlling Authority dated 13.08.2020 in Gratuity
Application No. 133/2019 are quashed and set aside.
9.1 Rule is made absolute to the aforesaid extent.
9.2 The matter is remanded back to the Controlling Authority to
consider the said matter in accordance with law as settled by the
Hon’ble Supreme Court in the case of Lalappa Lingappa & Ors
(Supra) and not to consider the period for which he has not
worked, while granting gratuity.
(P. M. RAVAL, J)
MMP
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