The employer must provide clear evidence of misconduct and termination to justify forfeiture of gratuity as per Payment of Gratuity Act provisions.

O R D E R

This petition has been filed by the petitioner to quash the order passed by the first respondent in A.G.A. No.5 of 2021 dated 29.09.2021, wherein, the writ petitioner has challenged the order passed by the Controlling Authority under the payment of gratuity Act, Salem in P.G.

No.109 of 2019 dated 16.09.2020.

2. The learned counsel appearing for the petitioner would submit that the petitioner has an establishment engaged in the manufacture of carded and combed-ring spun grey yarns for knitting and weaving applications from cotton, both for export and domestic markets. The third respondent joined the petitioner company in the year 1997 as Factory Manager and was subsequently promoted to General Manager and thereafter promoted to Vice-President. The third respondent committed many mistakes which are clear misconducts and the petitioner/management became aware of them during the month of July 2017. While so, when the petitioner/management was started making preliminary enquiries, the third respondent left the office at mid day on 05.08.2017 without informing anyone. Later, the third respondent informed that he had suffered from dengue fever and was admitted to the intensive care unit for treatment. Thereafter, he informed the H.R. Department that he was undergoing physiotherapy treatment and was absent from attending to the works of the petitioner's company. Thereafter, the petitioner/management called him to explain the allegations made against him, but it ended in vain. Subsequently, the petitioner / management sent a show cause notice on 05.04.2019, seeking an explanation as to why the petitioner/management should not initiate legal action against him for the mistakes. No reply was sent by the third respondent, and thereafter the domestic enquiry was conducted. As per the enquiry report, the charges against the third respondent were proved. The third respondent caused a huge loss and lost export orders worth more than Rs.10 crores. The third respondent did not participate in the enquiry proceedings, and the enquiry officer passed an exparte order. Thereafter, the petitioner/management imposed the punishment of forfeiture of the gratuity amount. In the meanwhile, the third respondent filed a petition in P.G. No.109 of 2019 before the Controlling Authority, Salem under the payment of Gratuity Act for the period from 1997 to 2017. The Controlling Authority without appreciating the submissions of the petitioner passed the order dated 16.09.2020, allowing the gratuity petition and directed the petitioner to pay a sum of Rs.6,98,077/- with interest at 10% per annum to the third respondent. Aggrieved by the same, the petitioner preferred the appeal before the first respondent in A.G.A.No.5 of 2021 and it was dismissed by confirming the order of the Controlling Authority, through an order dated 29.09.2021.

3. He would further submit that as per Section 4 of the Payment of Gratuity Act, the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service of not less than 5 years ; (1) On employee's superannuation; (2) On employee's retirement or resignation; (3) On employee's death or disablement due to accident or disease. Therefore, the third respondent employee continued to be on the rolls of the petitioner company on the date of filing of the gratuity application, hence the said gratuity petition is not maintainable. But the Controlling Authority failed to consider the same and the Appellate Authority also without considering the above said facts erroneously dismissed the appeal filed by the peti