The statutory right to receive gratuity is not sub-servient to the common law rights of the employer, and the employer must pass an express and reasoned order justifying the forfeiture of gratuity based on the provisions of the Act.

( 1 ) HEARD Sri Sanjay Misra for petitioner. No one appears for respondents. The petitioner is challenging the orders passed by Controlling authority and the Appellate Authority under payment of Gratuity Act, 1972, by which the petitioner had been directed to pay the entire amount of gratuity of Rs. 23,190/- along with cost of the case assessed as Rs. 100/- within 30 davs.

( 2 ) THE claimant-respondent No. 3 was engaged as workman by the petitioner company on December 8, 1965. After a domestic enquiry, he was dismissed from service on April 2, 1986 for an act of misbehaviour. The workman raised an industrial dispute which was referred and adjudicated as Industrial Dispute No. 61 of 1987 and was decided against him on February 24, 1989. A writ petition No. Nil of 1989 filed by the workman against the award was dismissed on November 1, 1989. The workman requested the company for payment of gratuity, and thereafter filed an application before the controlling Authority under Payment of gratuity Act, 1972. The Controlling Authority found that no evidence has been led to show that the workman was guilty of any such acts of disorderly or riotous behaviour which may have resulted in any loss to the employer, and directed that the entire amount should be paid to him. The Appellate Authority, in its order dated March 30, 1990 has upheld the findings of the Controlling Authority.

( 3 ) SRI Sanjay Misra, counsel for petitioner states that the workman whose services have been terminated, for serious disorderly or riotous conduct, or any act of violence, on his part is not entitled to gratuity. The findings in domestic enquiry were affirmed by the Labour Court and that a writ petition against the award was dismissed. In the circumstances, he submits that the workman was not entitled to gratuity.

( 4 ) THE Payment of Gratuity Act, 1972 gives a statutory right to an employee for payment of gratuity on his superannuation, retirement or resignation, or on his death or disablement due to accident or disease. Section 4 (6) (a) of the Act provides that the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. Sub-section 6 (b), provides that the gratuity payable to an employee may be wholly or partially forfeited: (i) if the services of such employee have been terminated for his riotous or disorderly conduct, or any other act of violence on his part or, (ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

( 5 ) THE scheme of the Act and the provisions of Section 4 (6) (a) and (b) shows that for depriving an employee his statutory right to receive gratuity, an order must be passed forfeiting the gratuity, and conscious decision to be taken with regard to reasons specified in sub-section (a) and to damage or loss so caused. The sub-section (b) after its amendment by Act no. 26 of 1984 (with effect from February 11, 1981) to the effect that gratuity may be wholly or in part forfeited, gives discretion to the employer and thus postulates application of mind and recording of reasons.

( 6 ) IN the present case there is no averment that any express order was passed by the employer forfeiting petitioners right to receive gratuity. In Remington Rand of India Ltd. v. The Workmen AIR 1970 SC 1421 : 1969 (3)SCC 913, the Supreme Court considered the qualifying period for payment of gratuity, and the consequences of payment of gratuity on the termination of services for misconduct. It was held that gratuity is paid to ensure good conduct throughout the period that the workman serves his employer is an accepted proposition. The clause as to misconduct covers the act which may vary in degree of g