IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present:

The Hon’ble Justice Shampa Dutt (Paul)

WPA 15908 of 2019 MSTC Ltd.

Vs.

Malay Sengupta & Ors.

For the Petitioner : Mr. Soumya Majumder, ld. Sr. Adv.

Ms. Noelle Banerjee, Mr. Dipak Dey, Ms. Sucheta Mitra.

For the Respondents : None.

Hearing concluded on : 27.02.2025 Judgment on : 25.03.2025 Shampa Dutt (Paul), J.:

1. The present writ application has been preferred praying for direction upon the respondents to recall the order dated 30th April, 2019 passed by the respondent no. 2, being the Deputy Chief Labour Commissioner (Central), Kolkata and Appellate Authority under Payment of Gratuity Act, 1972.

2. The petitioner’s case in short is that the respondent no. 1 was a presidential appointee on the Board of Directors of the writ petitioner company. While being so appointed, he was governed by the conduct, discipline and appeal Rules, 1980 of MSTC Limited.

3. On 20th April, 2009, the respondent no. 1 while holding the post of CMD of MSTC Limited was issued a memorandum of charge sheet for initiation of major penalty proceeding. The charges were of serious nature involving imports of scrap made at a higher cost as compared to similar transaction effected then by other private parties, resulting in a loss of Rs.7.44 crores to the writ petitioner company by reason of recommendations for purchase of scarp made by the Purchase Committee of MSTC Limited, of which the respondent no. 1 was a member.

4. During the pendency of the disciplinary proceeding initiated by the Central Government against the respondent no. 1, the said respondent attained the age of superannuation on 30^th April, 2009. The charge sheet was issued on 20^th April, 2009 which was never challenged by the respondent no. 1 and the said respondent continued to participate in the disciplinary proceeding even after his superannuation.

5. The conduct, discipline and appeal Rules, 1980 of MSTC Limited also permit continuance of disciplinary proceeding after superannuation of an employee. During the pendency of the disciplinary proceeding, the Ministry had been writing to the petitioner company time and again regarding the aspect of recovery of dues from the respondent no. 1 pertaining to the disciplinary proceeding initiated against him and also directed to withholding of gratuity by letter dated 24th April, 2009 pending the completion of such disciplinary proceedings.

6. By an order dated 30^th April, 2013, the Disciplinary Authority imposed upon the respondent no. 1 the penalty for recovery of Rs.10 lacs payable to the respondent no. 1 on account of gratuity which was withheld at the time of his retirement, for the loss caused to MSTC Limited by negligence and breach of orders. Such order was passed by invocation of Rule 23(d) read with Rule 30A(ii) of conduct, discipline and appeal Rules, 1980 of MSTC Limited.

7. The respondent no. 1 filed a review application dated 28^th October, 2013 but the same was also rejected by the Ministry being the Disciplinary Authority vide order dated 20^th March, 2014.

8. It is further stated by the petitioner that long after the respondent no.

1 had superannuated from service (30^th April, 2009), and after having accepted the penalty order of forfeiture of gratuity by way of penalty, the respondent no. 1 made a representation dated 3rd April, 2017 to the petitioner company demanding gratuity. The respondent no. 1 had never challenged the penalty order passed in the disciplinary proceeding in any Court of Law. He thus accepted the said penalty order. The gross delay of about 8 years in making a claim for gratuity also estops the respondent no. 1 by conduct from claiming gratuity from the writ petitioner company. The petitioner by its letter dated 5th July, 2017 denied the claim of the respondent no.

1 for gratuity.

9. The respondent no. 1 filed a claim application before the respondent no. 3 in Form ‘N’ demanding the gratuity amount. The respondent no. 1 made a demand in Form ‘I’