JUDGMENT :

RAJESH KUMAR, J.:— By Court Heard learned counsel for the parties.

2. The present writ petition has been filed for quashing the order dated 18.10.2016 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 in P.G. Appeal No. (37)/2016-A.7 whereby the order of recovery passed by the Original Authority in P.G. Application No. 36(01)/2015-E.6, has been set aside. It has been held that petitioner is not entitled for gratuity under Section 4(6) of the Payment of Gratuity Act, 1972 as he has been convicted in a criminal case involving moral turpitude.

3. Fact is not in dispute. Petitioner has been appointed on 19.06.1981 under the respondent and after serving till the age of superannuation, he retired w.e.f. 31.10.2014. While petitioner was in service, a criminal case has been lodged against him by the CBI, Dhanbad vide RC Case No. RC-14(A)/1995(D)(VIG/CB/18/95) for misappropriation of domestic coal amounting to Rs. 1,50,000/-. After investigation, the charge sheet has been filed under Section 407, 467, 468, 471 read with section 465, 409 and 120B of the Indian Penal Code and also under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. On conclusion of trial, the petitioner-employee has been convicted by the CBI Court vide judgment dated 09.10.2015 and he has been sentenced for three years rigorous imprisonment with Rs. 50,000/- cost.

4. Against this order of conviction, a criminal appeal has been filed which is pending before this Court.

5. The point has been raised by the petitioner that as per Section 4(1) of the Payment of Gratuity Act, 1972, the petitioner becomes entitled to get gratuity amount on retirement.

6. Since petitioner has retired on 31.10.2014 and till that date neither any departmental enquiry was pending nor he has been convicted and as such, he was entitled to receive gratuity amount. Subsequent conviction by a criminal court cannot be a ground for forfeiture of gratuity. Further the dismissal from service is sine qua non for forfeiture of the gratuity.

7. For this purpose, learned counsel for the petitioner has relied upon the judgments in the case of Shri Shankar Dadoba Naik v. Maharashtra State Road Transport Corporation, Palghar Division passed by the High Court of Judicature at Bombay in Writ Petition No. 9349 of 2012 and the judgment rendered by the Apex Court, reported in (2018) 9 SCC 529 in the case of Union Bank of India v. C.G. Ajay Babu.

8. On the other hand learned counsel for the respondent has disputed the claim and relied upon the judgments reported in 2014 (4) JCR 55 (Jhr) in the case of General Manager, Western Washery Zone of Bharat Coking Coal Ltd. v. Brajendra Kumar Choubey, (2006) 5 SCC 377 in the case of Y.P. Sarabhai v. Union Bank of India and 2004 (4) JCR (Jhr) 320 in the case of Manohar Singh Neech (Tak) v. The Regional Labour Commissioner (Central) Dhanbad-cum-Appellate Authority.

9. Payment of gratuity is controlled by the Payment of Gratuity Act, 1972.

10. Relevant Sections 4 (1) and 4(6) of the Payment of Gratuity Act, 1972 are quoted hereinunder:

4. Payment of Gratuity-(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

(b) on his retirement or resignation,

(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 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, and where any such nominees or heirs is minor, the share of such minor, shall be deposited with the Controlling Authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority].