Jharkhand High Court
Indian Aluminium Company Ltd., Etc. vs Regional Labour Commissioner ... on 30 January, 2003
Equivalent citations: [2003(97)FLR587], [2003(2)JCR26(JHR)], (2003)IILLJ818JHAR
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. In this Writ Application the petitioner has prayed for quashing the order dated 31.1.2000 (Annexure 6) passed by the respondent No. 1 (Regional Labour Commissioner (Central) Dhanbad-cum-Appellate Authority under Payment of Gratuity Act, 1972) in P.G. Appeal No. 29/99 by which the appeal filed by the respondent No. 3 was allowed and the order of the Controlling Authority passed on 28.4.1999 was set aside and the petitioner was directed to pay Rs. 5020.00 (Rupees five thousand twenty only) together with ten percent simple interest.
2. The petitioner further prays for quashing the notice dated 9/10.3.2000 (Annexure 7) by which the Assistant Labour Commissioner (Central) Ranchi-cum-Controlling Authority directed the petitioner to pay the aforementioned amount within thirty days.
3. According to the petitioner, the order of the appellate authority is not only contrary to the order of the original fact finding Court (the Industrial Tribunal) which justified the dismissal of the respondent No. 3, but also against the orders of the High Court passed firstly in the Writ Application and then in the Letters Patent Appeal upholding the said dismissal. The learned counsel for the petitioner has further submitted that the respondent No. 3 having been dismissed from service, the provisions of the Payment of Gratuity Act could not have been made applicable and that too, when there was no evidence before the appellate authority in coming to a different finding contrary to the finding of the Tribunal.
4. The petitioner in the instant case is the Management and have stated that the respondent No. 3 was its employee and was working in the capacity of a Mechanic. On 4.2.1979, at about 8.30 a.m. he indulged himself in riotous activity and stopped one Mahavir Ram Verma with a dagger at the main entrance. When others tried to intervene they were also stabbed. This was considered to be a gross misconduct punishable under Clause 24(B)(G) read with Clause 24(B)(J) of the Certified Standing orders of the Company. Consequently, a charge sheet was served and upon receipt of cause filed by him and upon a finding that it was not satisfactory, a domestic enquiry was conducted. The further case of the petitioner is that all opportunity was given to him and ultimately, the Management terminated him as charges were found to be proved and he was accordingly issued with an order of discharge on 22,4.1979 vide Annexure 1.
5. Being aggrieved the respondent No. 3 invoked the provisions of the Industrial Disputes Act which culminated in a reference and by an award dated 14.9.1987 (Annexure 2) the Presiding Officer, Central Industrial Tribunal No. 2 held that the action of the Management in dismissing the respondent No. 3 from services was justified and consequently he was not entitled to any relief.
6. Being aggrieved, the respondent No. 3 then filed a Writ Application being CWJC No. 1911 of 1987 (R) before the then Ranchi Bench of the Patna High Court. By Judgment/order dated 6.9.1995 (Annexure 3), the High Court dismissed the Writ Application, thereby upholding the Award.
7. Being aggrieved, the respondent No. 3 thereafter filed a Letters Patent Ap-
peal being LPA No. 310 of 1995(R) before the then Ranchi Bench of the Patna High Court and by an Order/Judgment dated 18.4.1996 (Annexure 4) a Division Bench also dismissed the said Letters Patent Appeal.
8. The Petitioner contends that both the two orders i.e., the one passed by the tribunal and the other by the High Court in the Writ Application were reasoned Judgments and every aspect was taken into consideration and finally, it was concluded that the workman was rightly dismissed from service,
9. The Petitioner further contends that after dismissal of the LPA, the Award passed by the Tribunal attained finality, but even thereafter, the Respondent No. 3 filed an application on 27.2.1998 before the controlling Authority under the Payment of Gratuity Act for a direction upon the Petitioner to compute the Gratuity payable and thereafter pay the same along with interest. The said application was numbered as P.G. Application No. 36 (3)/98-ALC (R). The Controlling Authority after considering the entire case passed an order on 28.4.1999 (Annexure-5) holding that the Respondent No. 3 was not entitled to get Gratuity from the Petitioner.
10. Being aggrieved, the Respondent No. 3 then filed an Appeal before the Respondent No. 1 (Regional Labour Commissioner (Central), Dhanbad-cum-Appellate Authority) which was registered as P.G. Appeal No. (29)/99 and by an order dated 31.1.2000 (Annexure-6) the order of the Controlling Authority was set aside and the Petitioners were directed to pay Rs. 5,020/- together with 10% simple interest for the period 1.6.1979 till the actual date of payment.
11. From a perusal of the order of the Appellate Authority, it appears that the same has totally veered off at a tangent. While the order of the Controlling Authority was very specific on the point relating to the applicability of the Act, the Appellate Authority on the other hand, proceeds to grant Gratuity to the Respondent No. 3 on the ground that there was neither any record which indicated that Gratuity had been forfeited nor were there any notice/ opportunity given for such forfeiture. He comes to the finding that Gratuity in fact was not paid and therefore Gratuity became payable.
12. The reasoning of the Appellate Authority is totally devoid of any substance and it is completely against the provisions of the Act. In this context Section 4(6) of the Payment of Gratuity Act 1972 was necessary to have been taken note of by the Appellate Authority which he has not done.
Section 4(1) and Section 4(6) read as follows :--
"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, or
(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 the 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 a 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.
(6) Notwithstanding anything contained in Sub-section (1).-
(a) the gratuity of an employee, whose services have been terminated for any act, willful 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;
(b) 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." ,
13. Thus from what is provided in the Payment of Gratuity Act is that for the misconducts mentioned in the aforementioned Sections, the entire Gratuity can be forfeited. What the Appellate Authority has done is that by reason of a mere technicality to the effect that there is no record to Indicate that such forfeiture had been made, he upsets the law and holds that the Respondent No. 3 is entitled to receive Gratuity. This is not only contrary to the law but it also upsets reasoned Judgments of the Tribunal, the Writ Court, the Letters Patent Appellate Court and finally, the order of the Controlling Authority made under the Payment of Gratuity Act.
14. Mrs. MM. Pal, learned counsel for the Respondent No. 3 has submitted that even employees whose services are terminated or who are dismissed are entitled to Gratuity as per Section 4(6) and unless there is order for forfeiture, the employee cannot be deprived of his right to receive Gratuity. This Court does not accept the aforesaid contention of Mrs. M.M. Pal and rejects them on the ground that the nature of misconduct involved in this case having been proved successfully, the Gratuity automatically stood wholly forfeited and the Petitioner was not required to pass an order of forfeiture.
15. Mrs. M.M. Pal has then relied upon the Judgment of the Supreme Court in the case of Major G.S. Sodhi v. Union of India reported in 1991 (2) SCC 371. That Judgment does hot improve the ease of the Respondent No. 3 in as much as the facts of that case are totally different from the facts of this case and the kind of misconduct proved is extremely serious which disentitles the Respondent No. 3 from any relief.
16. Consequently and for the reasons stated above, this Writ Application is al lowed and the order dated 31.1.2000 is hereby set aside and quashed. Consequently, the Notice dated 9/10.3.2000 as contained at Annexrue-7 is also set aside. There shall be no order as to costs.