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2020 Supreme(Bom) 154
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Ravindra V Ghuge, J.
Sub-Area Manager, Sasti Open Cast Mines, Western Coalfields Ltd - Appellant
Versus
Narayan Karu Dahekar - Respondent
Writ Petition No. 7016 of 2016
Decided on : 10-01-2020
Advocate Appeared:
S.C. Mehadia, Advocate, N.B. Meshram, Advocate
Headnote:
Payment of Gratuity Act - Sections 4, Clause (a) of Subsection (6) of Section 4, 4(6)(b)(ii) – Indian Penal Code,1860 - Section 467 - Granted gratuity - False and bogus - Notice - Forfeited for having committed - Petitioner has averred it received an information from anonymous sources school certificate produced by respondent was false and bogus. As such, the petitioner initiated a Departmental Enquiry against the respondent and upon conclusion of such an enquiry, he was issued with second show cause notice proposing dismissal from service - By order he was dismissed from service - petitioner thereafter issued a notice calling upon respondent to explain as to why his gratuity should not be forfeited for having committed an act which amounts to moral turpitude – Held, Continued in employment for 24 years and was dismissed from service one day prior to his date of superannuation - There has been no complaint as regards his performance of duties and there is nothing on record to indicate his conduct was detrimental to the interest of the organization - He performed his duties promptly record does not reveal any such misconduct which would have been caused on account of his education - Whether respondent was 8th standard qualified or not, did not affect his performance of duties as a Security Guard - Even in the peculiar facts as recorded respondent workman must not gather the impression that he has got away with his fraudulent act and the arms of law were unable to punish him - respondent would agree to waive 50% of his gratuity amount as a commensurate punishment for his misconduct, so as to balance equities - It is submitted on instructions gathered by the learned Advocate that the respondent is agreeable and he therefore, waives 50% of the gratuity amount - Petition is partly allowed
JUDGMENT :
Ravindra V. Ghuge, J.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. The petitioner is aggrieved by the judgment and order delivered by the Controlling Authority Assistant Commissioner, Labour, Chandrapur, dated 21.10.2015/30.10.2015 and the order passed by the appellate authority dated 29.4.2016/2.5.2016, by which the respondent has been granted gratuity under the Payment of Gratuity Act, 1972.
3. The petitioner management submits that the respondent was appointed as a Badli Worker on 13.3.1982. Subsequently, he had applied for appointment as a Security Guard and he was appointed in this new capacity on 7.6.1990. The requisite qualification for appointment as a Security Guard, was education upto the 8th standard. The respondent had tendered a school certificate which indicated that he had passed his 8th class.
4. The petitioner has averred that it received an information from anonymous sources that the school certificate produced by the respondent was false and bogus. As such, the petitioner initiated a Departmental Enquiry against the respondent and upon conclusion of such an enquiry, he was issued with the second show cause notice proposing dismissal from service. By order dated 30.01.2014, he was dismissed from service.
5. The petitioner thereafter issued a notice dated 1/2.2.2014 calling upon the respondent to explain as to why his gratuity should not be forfeited for having committed an act which amounts to moral turpitude. After considering his reply dated 8.2.2014, the petitioner management issued a communication dated 28.2.2014 in form 'M' and rejected the reply and directed the forfeiture of the gratuity.
6. The respondent approached the controlling authority which, at the relevant time, was the Assistant Commissioner, Labour, Chandrapur, by tendering form 'N' on 13.3.2014. By the impugned judgment dated 21.10.2015/30.10.2015, the application was allowed and the petitioner was directed to pay an amount of Rs.7,41,371/- towards gratuity along with interest @10% per annum w.e.f. 2.3.2014, which is one month subsequent to the dismissal of the respondent from employment.
7. The petitioner has deposited the entire gratuity amount as directed by the controlling authority, which is a pre-condition, while preferring an appeal before the controlling authority which was the Dy. Chief Commissioner for labour, Nagpur. By order dated 29.4.2016/2.5.2016, the appeal came to be dismissed.
8. The learned counsel for the petitioner has strenuously canvased that the respondent has not challenged his dismissal from service and as such, the said dismissal has attained finality. In this backdrop, the respondent now cannot claim gratuity when the said gratuity has been forfeited by following the due procedure of law. Reliance is placed upon the judgment of the Hon'ble Apex Court in the matter of Devendra Kumar vs. State of Uttaranchal and Others, (2013) 9 SCC 363 to buttress the submission that suppression of information or furnishing false information while seeking an appointment, amounts to a fraudulent act. Dismissal from service on account of such conduct need not be interfered with. It is therefore, contended that as the conduct of the respondent amounts to an act of moral turpitude, the forfeiture of gratuity as ordered by the employer ought not to have been interfered with by the controlling authority.
9. Further reliance is placed upon the judgment delivered by this Court at the Principal Seat in the matter of Shri Laxman Balu Deualkar vs. The Chief Executive Officer, Kolhapur District Central Co.Op. Bank Ltd., (2018) 3 CLR 8 wherein this Court (Coram : S.C. Gupte J.) considered the view taken by the Hon'ble Apex Court in the matter of Jaswant Singh Gill v. Bharat Coking Coal Ltd, (2007) 1 SCC 663, which is subsequently considered by the Hon'ble Apex Court in the matter of Union Bank of India & Others vs.C.G. Ajay Babu & Another, (2018) 9 SCC 529 and it was held in paragraph Nos. 4,5 an
