TMI Blog2023 (9) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Anr. Vs. Taraknath Sengupta Ors.,[ 2009 (4) TMI 1057 - CALCUTTA HIGH COURT ], affirmed the right of an employee to receive payment of gratuity and postulated the need for termination as a requisite for invoking Section 4(6) of the Payment of Gratuity Act, 1972. Payment of gratuity is not charity, rather is a statutory right recognized by the Payment of Gratuity Act, 1972 - Section 4(6) of the Payment of Gratuity Act, 1972 stipulates specific conditions where the employer may forfeit gratuity. Through the aforementioned judgements, specifically, Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, alleged misconduct of the employee as per the report of the domestic inquiry is not enough to constitute an offence involving moral turpitude , rather termination of services on account of the alleged misconduct, which constitutes an offence involving moral turpitude is essential for forfeiture of payment of gratuity. Petition allowed. - MR. SHEKHAR B. SARAF, J. For the Petitioner : Mr. Debasish Saha, Adv., Mr Srabonti Das, Adv. For the Respondents : Mr. Kamal Kumar Chattopadhyay, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 2013, fully proved B. The charges of excess payment of Rs. 1,12,88,153/- (Rupees One Crore Twelve Lacs Eighty-Eight Thousand One Hundred and Fifty- Three only) made to H/T contractor not sustained by listed documents of Addendum No. Vig- 2(1449)/03/2012/Part dated January 6, 2015 C. Charges of excess payment of Rs. 34,59,715/- (Rupees Thirty-Four Lacs Fifty-Nine Thousand Seven Hundred and Fifteen only) made to H/T contractors as per Addendum No. Vig-2(1449)/03/2012/Part dated January 6, 2015, not found tenable. D. Charges of fictitious payment of Rs. 2,60,077/- (Rupees Two Lacs Sixty Thousand and Seventy-Seven only) to H/T contractors as per Addendum No. Vig- 2(1449)/03/2012/Part dated January 6, 2015, not found tenable. d. The General Manager Regional Office, Patna, FCI, taking heed of the aforementioned findings of the inquiry officer, issued the following punishment against the petitioner:- S. No. Name Designation of CO Conclusion/Findings 1. Sri Surendra Prasad, Ex-AGI(D) Reduction to lower post of AG-III(D) at minimum of the reduced po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the petitioner of Rs. 10,00,000/- (Rupees Ten Lacs only). h. Following this, the petitioner filed a writ petition, namely C.W.J.C. No. 12767 of 2018 before the Hon ble High Court at Patna for quashing the order passed by the Deputy Chief Labour Commissioner dated, March 16, 2018. On November 5, 2020, the learned Single Judge of the High Court at Patna dismissed the writ petition on jurisdictional grounds without going into the merits of the case. i. Being aggrieved and dissatisfied by the order dated March 16, 2018, of the Deputy Chief Labour Commissioner, the petitioner has filed the instant writ petition under Article 226 of the Constitution of India before this Court. , Contentions 3. The counsel for the petitioner has made the following submissions:- a. It is the contention of the petitioner that the Deputy Chief Labour Commissioner failed to appreciate the scope of Section 4(6) of the Payment of Gratuity Act, 1972 and that payment of gratuity is not a gesture of charity, rather is a recognized statutory right to be provided in favour of the employee. b. Furthermore, the petitioner submitted that he was never terminated from service and therefore is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 4(6)(b)(ii) of the Payment of Gratuity Act, 1972. c. The respondent authorities have finally submitted that the present writ petition is not maintainable in law as the Hon ble High Court at Patna already dismissed the previous writ petition namely C.W.J.C. No. 12767 of 2018 on November 5, 2020, where the Hon ble High Court at Patna did not grant leave to the petitioner to initiate any fresh proceedings on the same cause of action. Observation and Analysis 5. I have heard the learned counsels appearing for both parties and perused the materials on record. Before this Court considers the focal issue in the present writ petition it is imperative that the Deputy Chief Labour Commissioner s order dated March 16, 2018, is analysed. 6. The Deputy Chief Labour Commissioner as per order dated March 16, 2018, had deemed this to be a case of offence involving moral turpitude where the alleged offence was the pendency of the criminal and CBI cases against the petitioner. Relevant paragraphs of the Deputy Chief Labour Commissioner s discussion over the petitioner s alleged criminal and CBI cases have been reproduced below:- During the course of the proceedings he ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the petitioner was never dismissed nor terminated from service because of the penalty imposed during the disciplinary proceedings against him. The order of the General Manager, Regional Office, Patna dated August 31, 2015, specifically imposes a penalty of demotion to the post of AG-III(D) and a token recovery of Rs. 1,00,000/- (Rupees One Lac only) from the retiral dues other than gratuity, but the penalty order does not terminate, nor does it dismiss the petitioner from service. 9. Keeping such discussion in mind, this Court has found only one primary issue, i.e., whether the petitioner s circumstances attract the application of Section 4(6) of the Payment of Gratuity Act, 1972. 10. Section 4(6) of the Payment of Gratuity Act, 1972 specifically states termination as a pre-requisite condition for forfeiture of gratuity in all cases, including the present allegation of offence involving moral turpitude . The relevant section of the Payment of Gratuity Act, 1972 is as follows:- 4. Payment of Gratuity: (6) Notwithstanding anything contained in sub-section (1), - (a) the gratuity of an employee, whose services have been terminated for any act, wilful omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cide whether an offence has been committed. It is for the court. Apart from the disciplinary proceedings initiated by the appellant Bank, the Bank has not set the criminal law in motion either by registering an FIR or by filing a criminal complaint so as to establish that the misconduct leading to dismissal is an offence involving moral turpitude. Under sub-section (6)(b)(ii) of the Act, forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a court of competent jurisdiction. * * * 19. In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20-4-2004 that the misconduct proved against you amounts to acts involving moral turpitude . At the risk of redundancy, we may state that the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving moral turpitude. Conditions laid down therein are also not satisfied. 14. Termination of services for any of the causes enumerated in sub-section (6) of Section 4 of the Act, therefore, is imperative . 16. The co-ordinate bench of this High Court in Steel Authority of India Ltd. Anr. Vs. Taraknath Sengupta Ors., reported in 2009 SCC OnLine Cal 882, affirmed the right of an employee to receive payment of gratuity and postulated the need for termination as a requisite for invoking Section 4(6) of the Payment of Gratuity Act, 1972. The relevant paragraphs of the judgement have been reproduced below:- 22. In terms of provisions contained in the Act, gratuity is payable to an employee covered by it by his employer not as a bounty or as a gratuitous payment; instead, it is a payment which is earned by an employee for meritorious service rendered by him over a period of time * * * 26. This Court humbly shares the view. Since the Act itself provides for quantification of gratuity as well as its recovery, it would be open to an employer to make supplemental provisions for promoting the object of the Act but making of provisions which in effect curt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forementioned judgements, specifically, Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon (supra), alleged misconduct of the employee as per the report of the domestic inquiry is not enough to constitute an offence involving moral turpitude , rather termination of services on account of the alleged misconduct, which constitutes an offence involving moral turpitude is essential for forfeiture of payment of gratuity. c. As per Union Bank of India Ors. Vs. C.G. Ajay Babu Anr. (supra), offences involving moral turpitude must be offences punishable under law and duly established in a court of law, i.e., the petitioner ought to have been convicted of such offences in a court of law. It is only when termination of employment on grounds of such offences involving moral turpitude are established in a court of law, that Section 4(6) of the Payment of Gratuity, 1972 is attracted. 19. Based on the aforementioned established principles of law, this Court highlights that the petitioner was never terminated from services and cases including CBI case with RC No. 203 2012 A 0028 dated December 27, 2012, another ..... X X X X Extracts X X X X X X X X Extracts X X X X
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