Removal from service for unauthorized absence justifies forfeiture of gratuity under relevant law.

Per Hon’ble Mrs. Harvinder Oberoi, Member (J) :

The main grievance of the applicant in this OA relates to non grant of Gratuity amount to her. Following reliefs have been sought by the applicant vide this OA :-

"a) Allow the present original application directing the Respondents to release gratuity amount of the applicant along with interest, in the interest of justice.

b) Cost of litigation may also be awarded in favour of the Applicant and against the Respondents.

c) Any other relief be also awarded against the Respondent(s) which the Hon'ble Tribunal may deem fit and proper, in favour of the Applicant."

2. Brief facts of the case as per the counsel for the applicant are that the applicant was appointed as Assistant Teacher on 09.01.1997 and before resigning she last served with Sarvodaya Kanya Vidyalaya, Dallupura, Delhi. Because of her long absence, she was served with a notice of preliminary hearing on 02.02.2021 to which the applicant responded on 07.02.2021 giving reasons of her absence and she requested to accept her resignation with payment of all her dues. However, she was served with a memorandum dated 02.07.2021 vide which she was informed that disciplinary proceedings were pending against her and was asked to submit her representation within 15 days.

The inquiry report stated that the applicant had violated Rule 7 of CCS (Leave) Rules, 1972 as she was unauthorizedly absent from 28.12.2014 till date. Her request to accept her resignation was also rejected vide letter dated 08.07.2021 by the Deputy Director of Education (East). Pursuant to this the competent authority imposed the penalty of removal from service upon her however, the same was not treated as a disqualification for future employment under the Government in respect of the applicant. Aggrieved, the applicant preferred appeal on 21.01.2022 before the Principal Secretary (Education Department). The Appellate Authority also did not interfere with the punishment. Rather, it confirmed the order of removal passed by the disciplinary authority (Director of Education) vide order dated 24.05.2023. Thereafter, vide letter dated 13.09.2023 the applicant requested the respondents to settle her dues which was rejected. The applicant then sent several requests through email to the authorities to release her gratuity amount but to no avail. Distressed, she chose to file the present OA.

3. Counsel for the applicant highlighted the grounds raised by him in the OA which are quoted below :-

“a) The applicant was joined as assistant teacher on 09.01.1997 and was removed from services on 28.12.2021 for the reason beyond the control of the applicant. The applicant worked with the respondent Department till 2014 and served the department sincerely and honestly. As such the applicant has rendered 17 years of continue services with the respondent department. As per the existing service rules, Gratuity is payable to the employee when any employee has completed 5 years of his/her services. Since the applicant has completed 17 years of her services and she was removed from the services only in the year 2021 on the ground of her absence therefore, the applicant is entitled for gratuity amount along with interest.

b) It is matter of fact that the gratuity amount payable to the applicant has not been forfeited by the respondent department at any point of time. The respondent has not received any such letter till date therefore, the applicant is entitled for gratuity amount along with interest.

c) Under sub-section (6)(b)(ii) of the Payment of Gratuity Act, 1972 , forfeiture of Gratuity is permissible only if the termination of an employee is for any misconduct which continues as offence involving moral turpitude and convicted accordingly be a court of competent jurisdiction.

d) The applicant does not