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PETITIONER: LALAPPA LINGAPPA & ORS.

       Vs.

RESPONDENT: LAXMI VISHNU TEXTILE MILLS LTD., SHOLAPUR

DATE OF JUDGMENT11/02/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR  852            1981 SCR  (2) 796  1981 SCC  (2) 238        1981 SCALE  (1)268  CITATOR INFO :  E          1984 SC1842  (16)  D          1986 SC 458  (3,6)

ACT:      Payment of  Gratuity Act  1972-Section  4(1)-Scope  of- Permanent workers  on unauthorised  leave-On termination  of services whether  entitled to  gratuity under  section 4(1)- Badli workers-If  entitled to  gratuity for  badli period on being made permanent.      Words   and    phrases-"Continuous   service"-"Actually employed" and "actually worked" meaning of.      Interpretation of  statutes-Social welfare legislation- Principles of interpretation.

HEADNOTE:      Gratuity is  payable to  an employee on the termination of his  employment after  he has rendered continuous service under the  conditions  mentioned  in  section  4(1)  of  the Payment of  Gratuity Act 1972. The term "continuous service" has been  defined in  section  2(c)  to  mean  uninterrupted service and  includes service  which is  interrupted,  among others, by  leave or  cessation of work not due to any fault of the  employee concerned.  Explanation I  to this  section provides that  an employee,  who  is  not  in  uninterrupted service for  one year,  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 240  days except  when he  is employed  in  a seasonal establishment.  Explanation  II  provides  that  an employee of  a seasonal  establishment shall be deemed to be in continuous  service, if  he has  actually worked  for not less  than   75%  of   the  number  of  days  on  which  the establishment was in operation during that year.      Certain  permanent  employees  of  the  respondent,  on termination of their employment, made a claim for payment of gratuity in  respect of every year during which they were in permanent  employment   irrespective  of  whether  they  had actually worked for 240 days or not.      On being  made  permanent  the  badli  workers  claimed gratuity in  respect of the period prior to their being made permanent irrespective  of whether  in those  years they had been actually employed for 240 days or not.

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    The respondent,  however, paid gratuity calculating the number of years in which they were actually employed for 240 days.      As regards  the permanent  employees, the  Labour Court held that  they were governed by the substantive part of the definition of  continuous service  in section  2(c) upon the basis that there was no break in service; and as regards the badly employees,  it held  that they  were not  entitled  to gratuity in  respect of  the years  in which  they were  not actually employed  for  240  days  since  they  fell  within Explanation I of section 2(c) of the Act. 797      The Appellate  Authority upheld  the view of the Labour Court.      On appeal,  as regards the permanent employees the High Court held that unauthorised absence from work resulted in a break of  service and,  therefore, the employees were not in uninterrupted service  and fell outside the substantive part of section  2(c) but  came within  Explanation I. As regards badli workers it upheld the view of the authorities.      In  appeal   it  was   contended  that   the  permanent employees, even  if they  were absent  without leave  for  a number of  days in  a year  and had actually worked for less than 240 days due to absence without leave, were entitled to gratuity under  section 4(1) since the jural relationship of employer and  employee continued  during  that  period.  The badli employees  on being  made permanent became entitled to gratuity for  the badli period because of the fact that they were required to report for work at the factory irrespective of whether  they were provided with employment or not on any day.      Dismissing the appeal. ^      HELD :  1. The High Court was right in holding that the permanent employees were not entitled to payment of gratuity under section  4(1) for  the years  in which  they  remained absent without  leave and  had actually worked for less than 240 days in a year. [806A]      The expression  "actually employed" used in Explanation I and  "actually worked"  used  in  Explanation  II,  having regard to  the context  and purpose  with  which  they  were enacted,  are   synonymous.  An  employee,  who  is  not  in uninterrupted service  for one  year  is  deemed  to  be  in continuous  service,   even  though  he  falls  outside  the substantive part  of the definition in section 2(c) provided he has been actually employed for 240 days in a year. In the case of seasonal establishments, however, it is difficult to predicate the  number of  days on  which  the  establishment would be  in operation in the year and an employee of such a seasonal establishment  shall be  deemed to be in continuous service, if  he has actually worked for not less than 75% of the number  of  days  on  which  the  establishment  was  in operation. [802 F-H]      The badli  workers do  not fall  within the substantive part of  the definition  of "continuous  service",  but  are covered by  Explanation I. They are, therefore, not entitled to payment  of gratuity for the badli period i.e. in respect of the  years in  which no  work was allotted to them due to their failure  to report to duty. Simply because a worker is required everyday  to  attend  the  mills  for  ascertaining whether work  would be  provided to him or not, he cannot be deemed to  have rendered  service and  would  not,  on  that account, be entitled to claim gratuity. Gratuity is paid for services rendered. [807 C; 806D]      Delhi Cloth  and General  Mills  Co.  v.  Its  Workmen,

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[1969] 2 SCR 307 at 338, followed.      In construing  a social  welfare legislation, the Court should adopt a beneficent rule of construction. If a section is capable of two constructions, that construction should be preferred which  fulfils the  policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. Where  the language  is plain  and  unambiguous  the Court must give effect to it whatever may 798 be the  consequences. In  that case the words of the statute speak the  intention of  the legislature.  The  argument  of inconvenience and  hardship is  a dangerous  one and is only admissible in  construction where the meaning of the statute is obscure  and there  are two  methods of  construction. In their anxiety  to advance beneficent purpose of legislation, the Courts  must not  yield to  the  temptation  of  seeking ambiguity when there is none. [804G-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 436 of 1980.      Appeal by  special leave  from the  Judgment and  Order dated 1-9-1978  of the  Bombay High  Court in  Special Civil Application No. 200/78.                             AND                Civil Appeal No. 930 of 1980.      Appeal by  special leave from the Judgment and Order of the President, Industrial-Court, Bombay (Appellate Authority appointed under  Payment of  Gratuity Act,  1972), in Appeal PGA Nos. 34/78 and 36 to 119/79.      R. S.  Kulkarni, Mrs.  Veena  Devi  Khanna  and  V.  N. Ganpule for the Appellants and intervener.      F. S.  Nariman, B.  N. Srikrishna,  R. P.  Kapur, H. S. Parihar and Shardul S. Shroff for the Respondents..      The Judgment of the Court was delivered by      SEN, J.-The controversy in these two appeals by special leave against  a judgment  of the  Bombay High  Court and an order of  the President,  Industrial Court, Bombay, turns on the construction  of the  expression ‘continuous service’ as defined in s.2(c) of the Payment of Gratuity Act, 1972.      The facts  giving rise  to these  appeals are  these  : Eighty-five permanent  employees of  the respondent who were on  the   regular  muster  roll,  on  termination  of  their employment, made  a claim  for payment  of gratuity  for the entire period  of their  service, i.e.,  in respect of every year  during   which  they  were  in  permanent  employment, irrespective of  the fact,  whether they had actually worked for 240  days in  a year or not. Twenty-five badli employees of the  respondent, who  were on  the badli  register,  upon being made  permanent, made  a similar  claim for payment of gratuity for the badli period, i.e. in respect of the period prior to  their being  made permanent,  irrespective of  the fact whether  in those years they had been actually employed for 240 days or not. The respondent, however, calculated the number of  years in  which  these  employees  were  actually employed for at least 799 240 days in a year and paid gratuity accordingly. The Labour Court, which  is the Controlling Authority, held in relation to the  permanent employees  that they  were governed by the substantive part  of the  definition of ‘continuous service’ in s.  2(c) of  the Act,  upon the  basis that  there was no break in  service, i.e.,  there was  no  question  of  their

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actual employment  or actual  working for  240 days or more, but as  regards the  badli employees, it held that they were not entitled  to gratuity in respect of those years in which they were not actually employed for 240 days since they fell within Explanation I to s. 2(c) of the Act. That view of the Controlling  Authority   was  affirmed   in  appeal  by  the President of  the Industrial  Court, who  is  the  Appellate Authority. The  High Court while upholding the view of these authorities in respect of the badlis, has, however, reversed their decision with regard to the permanent employees on the ground that  unauthorised absence  from work  results  in  a break  of   service  and,   therefore,  they   were  not  in uninterrupted service  and fell outside the substantive part of s. 2(c) but came within Explanation I.      In support of these appeals, it was urged that the High Court  was   in  error  in  equating  the  phrase  ‘actually employed’ with  ‘actually worked’.  It  was  submitted  that though the  word ‘service’  has not been defined in the Act, the emphasis  is on  the  subsistence  of  the  contract  of employment. It  is urged that the word ‘employed’ connotes a contract of  employment and both the permanent employees and badli employees, therefore, fall within the substantive part of the  definition of  ‘continuous service’  in s.  2(c). In substance, the  contention is  that Explanation I to s. 2(c) covered  only  those  cases  where  there  was  a  break  in continuity of  service, by  reason of discharge from service and re-employment.  In regard to the permanent employees, it is urged  that they  would be  deemed to  be  in  continuous service for  purposes of  sub-s. (1)  of s.  4 of the Act so long as  their names are borne on the permanent muster roll. In  other   words,  the   submission  was   that  the  jural relationship of employer and employee continues irrespective of whether  they had  actually worked  for 240  days or not. With regard  to the badli employees, it is urged that once a person is  given a  badli card  it matters little whether he actually works  for 240  days or not, since he had to report for work  and his  employment is  at  the  volition  of  the employer. Thus,  the absence  of the  badli employees on the days on  which they  were not  provided with  work, although they reported  for duty and there was an endorsement made to that effect  in the  badli card,  could not  be  treated  as interruption of  service. It  was pointed out that the badli employees had  been put  at par with the permanent employees and enjoyed all such benefits such as bonus, 800 retrenchment compensation,  lay-off compensation,  provident fund benefits, benefits under the Employees’ State Insurance Act and  the Workmen’s  Compensation Act,  leave  under  the Factories Act, etc., and there was no reason why they should be deprived  of the  benefit of  gratuity for those years in which they  had worked  for less  than 240  days because  of their absence  without leave.  We are  afraid, this  line of reasoning cannot be accepted being against the scheme of the Act.      Two questions  arise in  these appeals. The first is as to whether  permanent employees  are entitled  to payment of gratuity under  sub s.  (1) of s. 4 of the Act for the years in which  they remained absent without leave for a number of days in  a year  and had  actually worked  for less than 240 days, due  to absence  without leave.  The second  is as  to whether the badli employees are entitled to such gratuity on becoming  permanent  employees,  for  the  badli  period  in respect of  the years in which there was no work allotted to them due to their failure to report to duty. These questions relate to  the years  in  which  these  employees  were  not

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actually employed  for 240  days in  a year,  due  to  their absence without leave.      The Payment of Gratuity Act, 1972 (hereinafter referred to as  ‘the Act’),  is enacted  to introduce  a  scheme  for payment of  gratuity for  certain industrial  and commercial establishments, as  a measure of social security. It has now been universally recognised that all persons in society need protection  against  loss  of  income  due  to  unemployment arising out of incapacity to work due to invalidity, old age etc. For  the wage  earning population,  security of income, when the  worker becomes  old or infirm, is of consequential importance.  The  provisions  of  social  security  measures retiral benefits  like gratuity,  provident fund and pension (known as the triple benefits) are of special importance. In bringing the  Act on  the statute  book the intention of the legislature  was   not  only   to  achieve   uniformity  and reasonable degree of certainty, but also to create and bring into force  a self-contained,  all-embracing,  complete  and comprehensive code relating to gratuity. The significance of this legislation  lies in the acceptance of the principle of gratuity as a compulsory, statutory retiral benefit.      For a  proper appreciation of the question involved, it is necessary  to set out the relevant provisions of the Act. Sub-section (1) of s. 4 reads as follows :           4. (1) Gratuity shall be payable to an employee on      the termination of his employment after he has rendered      continuous service for not less than five years,-           (a)  on his superannuation, or 801           (b)  on his retirement or resignation, or           (c)   on his  death or disablement due to accident                or disease;           Provided that the completion of continuous service      of  five   years  shall  not  be  necessary  where  the      termination of the employment of any employee is due to      death or disablement;           Provided further  that in the case of death of the      employee, gratuity, payable to him shall be paid to his      nominee or,  if no  nomination has  been made,  to  his      heirs.           Explanation.-For the  purposes  of  this  section,      disablement means  such disablement as incapacitates an      employee  for   the  work   which  he  was  capable  of      performing before  the accident or disease resulting in      such disablement. The expression  ’continuous service’  has been defined in s. 2(c) of the Act in these terms :           2. (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      employee  concerned,   whether  such  uninterrupted  or      interrupted service  was 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-           (i)  190 days,  if employed  below the ground in a                mine, or           (ii) 240 days,  in any  other case, except when he                is employed in a seasonal establishment.           Explanation  II.-An   employee   of   a   seasonal

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    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.      The Act  is a  piece of  social welfare legislation and deals with  matters relating  to payment  of gratuity which, like pension, provident 802 fund etc.,  is a  retiral benefit.  Interrupted  service  by reason of  sickness, leave,  lay-off,  strike,  lock-out  or cessation of  work not  due to  any fault  of  the  employee concerned should not be regarded as a break in continuity of his  service.  The  inclusive  part  of  the  definition  of ’continuous service’ in s. 2(c) is to amplify the meaning of the  expression   by  including  interrupted  service  under certain contingencies  which, but  for such inclusion, would not fall  within the  ambit of  the  expression  ’continuous service’. There  were compelling reasons why the legislature gave an  enlarged  meaning  to  the  expression  ’continuous service’ in s. 2(c) of the Act, so that the workers who have rendered long  and meritorious  service are  not deprived of their right  to gratuity  by reason of absence from duty due to circumstances beyond their control.      The  two   Explanations  have   been  inserted  by  the legislature to  define the  words  ’one  completed  year  of service’ to  benefit a  class of  employees who  are not  in uninterrupted  service  for  one  year.  These  Explanations employ a  fiction which converts service of (a) 190 days, if employed below  the ground  in a  mine, (b) 240 days, in any other case except when employed in a seasonal establishment, in a period of 12 calendar months, or (c) 75 per cent of the number of  days which  the  seasonal  establishment  was  in operation, to be one complete year.      The main point in controversy in these appeals is as to whether the  expression ’actually employed’ in Explanation I to s.  2(c) must,  in the  context in which it appears, mean ’actually worked’.  The legislature  has, no doubt, used two different  expressions,   namely,  ’actually  employed’,  in Explanation I  and ’actually worked’ in Explanation II. But, they are,  in our  view, having  regard to  the context  and purpose with  which  they  have  been  enacted,  synonymous. Explanation I  deals with the case of an employee who is not in uninterrupted  service for  one year.  Such  an  employee shall be  deemed to  be in continuous service even though he falls outside  the substantive  part of the definition in s. 2(c) provided  he has been actually employed for 240 days in a year.  The expression ’actually employed’ in Explanation I must, therefore,  mean ’actually  worked’. There is a reason why a different expression is used in Explanation II. In the case  of   a  seasonal  establishment  it  is  difficult  to predicate the  number of  days on  which  the  establishment would be  in operation in the year and an employee of such a seasonal establishment  shall, therefore, be deemed to be in continuous service  if he  has actually  worked for not less than 75%  of the  number of  days on which the establishment was in operation. 803      The history  of the  legislation  is  set  out  in  the Statement of  Objects and  Reasons accompanying the Bill.(1) The Bill adopted by s. 2(c) the definition of the expression ’continuos service’  as defined  in s.  2(b) of  the  Kerala Industrial Employees’  Payment of  Gratuity Act, 1970 and s. 2(c) of  the West  Bengal Employees’  Payment of  Compulsory Gratuity Act, 1971, which reads :      2. In this Act unless the context otherwise requires,-

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         (c)  "continuous   service"  means   uninterrupted      service and  includes service  which is  interrupted by      sickness, accident,  leave, strike which is not illegal      or a  lock-out or  cessation of  work not  due  to  any      default of the employee concerned. The Bill  was referred to a Select Committee, and the Select Committee by its Report presented to the Lok Sabha on May 2, 1972 proposed  three vital  changes in the definition of the expression ’continuous  service’ in s. 2(c), namely, (1) for the purpose  of computation  of  the  period  of  continuous service,  the   entire   period   whether   interrupted   or uninterrupted, before  or after the commencement of the Act, had to  be taken  into account, (2) the period of strikes or lay-offs were  to  be  considered  as  part  of  ’continuous service’, and  (3) the  benefit of sub-s. (1) of s. 4 was to be extended by alegal fiction in the care of an employee who was not  in uninterrupted  service for  one year. subject to the fulfillment  of the conditions laid down in Explanations I and II.      The legislative  intent is brought out in the Report of the Select  Committee. The Note of the Committee with regard to the  two  Explanations  bears  out  that  the  expression ’actually employed’  in Explanation  I  and  the  expression ’actually worked’  in Explanation  II were  used in the same sense. The Note reads : (2)           The Committee also feel that an Explanation may be      added to  the definition of ’continuous service’ to the      effect that an employee who works-           (a) in a mine below the ground for 190 days, or           (b)   in  any other case, for 240 days. in a year,      should be deemed to be in continuous service.           The Committee  also  feel  that  in  the  case  of      persons  employed   in  seasonal  establishments,  such      persons, would 804      be deemed  to be in continuous service if they had been      employed for  75 per  cent of the days during which the      establishment had been in operation during the season. that was  the intention with which the two Explanations were added to  the definition  of ’continuous service’ in s. 2(c) of the Act.      The expression ’continuous service’ in the context of a gratuity  scheme  was  interpreted  by  this  Court  in  M/s Jeewanlal (1929) Ltd., Calcutta v. Its Workmen(1) as follows :           "Continuous service"  in the context of the scheme      of gratuity  framed by  the  tribunal  in  the  earlier      reference   postulates    the   continuance    of   the      relationship of master and servant between the employer      and  his   employees.  If   the  servant   resigns  his      employment service  automatically comes  to an  end. If      the employer  terminates the  service of  his  employee      that again  brings the continuity of service to an end.      If the  service of  an employee is brought to an end by      the operation of any law that again is another instance      where the continuance is disrupted; but it is difficult      to hold  that merely  because  an  employee  is  absent      without obtaining  leave that  itself would bring to an      end  the   continuity  of   his   service.   Similarly,      participation in  an illegal strike which may incur the      punishment of  dismissal may  not by itself bring to an      end the relationship of master and servant. It may be a      good cause  for the  termination of service provided of      course the  relevant provisions  in the standing orders      in  that   behalf   are   complied   with;   but   mere

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    participation in  an illegal  strike cannot  be said to      cause  breach   in  continuity   for  the  purposes  of      gratuity.                                             (emphasis added) The legislature  has departed from the meaning given by this Court in  the  above  case  to  the  expression  ’continuous service’ by incorporating the words ’not due to any fault on the part  of  the  employee  concerned’,  to  give  to  that expression a restricted legal connotation.      In construing  a social  welfare legislation, the court should adopt  a  beneficient  rule  of  construction;  if  a Section is  capable of  two constructions, that construction should be preferred which fulfils the policy of the Act, and is more  beneficial to the persons in whose interest the Act has been  passed. When,  however, the  language is plain and unambiguous, as here, we must give effect to it whatever may be the  consequences, for,  in that  case, the  words of the statute 805 speak the intention of the legislature. When the language is explicit, its  consequences are  for the legislature and not for the  courts to  consider. The  argument of inconvenience and hardship  is a  dangerous one  and is only admissible in construction where the meaning of the statute is obscure and there are  two methods  of construction. In their anxiety to advance beneficient  purpose of legislation, the courts must not yield  to the temptation of seeking ambiguity when there is none.      In dealing with interpretation of sub-s. (1) of s.4, we must keep  in view  the scheme of the Act. Sub-s. (1) of s.4 of the  Act incorporates  the concept  of gratuity  being  a reward for  long, continuous  and meritorious  service.  The emphasis therein  is not  on ’continuity of employment’, but on  rendering   of  ’continuous  service’.  The  legislature inserted the  two Explanations  in the  definition to extend the benefit  to  employees  who  are  not  in  uninterrupted service for  one year  subject to  the  fulfillment  of  the conditions laid  down therein. By the use of a legal fiction in these  Explanations, an  employee  is  deemed  to  be  in ’continuous service’  for purposes of sub-sec. (1) of s.4 of the Act.  The legislature never intended that the expression ’actually employed’  in Explanation  I  and  the  expression ’actually  worked’   in  Explanation   II  should  have  two different meanings  because it  wanted to extend the benefit to an  employee who  ’works’ for a particular number of days in  a   year  in  either  case.  In  a  case  falling  under Explanation I,  an employee  is deemed  to be  in continuous service if  he has  been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any  other case, except when he is employed in a seasonal establishment. In  a case  falling under  Explanation II, an employee of  a seasonal  establishment, is  deemed to  be in continuous service  if he  has actually  worked for not less than 75  per cent  of  the  number  of  days  on  which  the establishment was in operation during the year.      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 s.2 (c) of the Act

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must, in  the context  in which  it appears,  mean ’actually worked’. It must accordingly be held that the High Court was right 806 in holding that the permanent employees were not entitled to payment of  gratuity under  sub-s. (1) of s.4 of the Act for the years  in which  they remained  absent without leave and had ’actually worked for less than 240 days in a year.      As regards  badli employees, there can be no doubt that they are  not in  uninterrupted service and, therefore, they do not  fall within  the substantive  part of the definition ’continuous  service’   in  s.2(c),   but  are   covered  by Explanation I.  In Delhi  Cloth and General Mills Co. v. Its Workmen(1) the  Court, while dealing with a gratuity scheme, repelled  the  contention  urged  on  behalf  of  the  badli employees that  since they  had to  register themselves with the management  of the textile mills and were required every day to  attend the mills for ascertaining whether work would be provided  to them  or not,  the condition  requiring that they should have worked for not less than 240 days in a year to qualify for gratuity was unjust and observed:           If gratuity is to be paid for service rendered, it      is difficult  to appreciate the grounds on which it can      be said  that because  for maintaining  his name on the      record of  the badli  workmen, a workman is required to      attend the  mills he  may be  deemed to  have  rendered      service and  would on  that account be entitled also to      claim gratuity.      Standing Order No. 3 as settled by the Industrial Court under s.36(3)  of the  Bombay Industrial Relations Act, 1946 for Operatives  in  Cotton  Textile  Mills,  in  so  far  as material, provides.           (3) Operatives  shall be classed as (1) Permanent;      (2) Probationer;  (3) Badlis; (4) Temporary Operatives;      and (5) Apprentices.           xx          xx           A "badli"  is one who is employed on the post of a      permanent operative  or probationer  who is temporarily      absent.           xx          xx It is  not denied  that the  Management has  got a  separate register for  the badli  employees and  that those  who need work and  when they  call at the gate of the mills for work, such number of them are employed by the mills to fill up the vacancies of  permanent operatives  or probationers  who are absent on  a particular  day either on account of illness or for any other cause. 807      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  Mills’  case (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

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to duty.      The result,  therefore, is  that the  appeals must fail and are accordingly dismissed. There shall be no order as to costs. P.B.R.                                    Appeals dismissed. 808