Gujarat High Court
Munirudin Vajirudin Kazi vs Municipal Commissioner & 2 on 24 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/17973/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17973 of 2014
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MUNIRUDIN VAJIRUDIN KAZI....Petitioner(s)
Versus
MUNICIPAL COMMISSIONER & 2....Respondent(s)
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Appearance:
MR GK RATHOD, ADVOCATE for the Petitioner(s) No. 1
MR MUKESH H RATHOD, ADVOCATE for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 24/09/2015
ORAL ORDER
1. By way of this petition which is filed under Articles 226 and 227 of Constitution of India, the petitioner seeks to challenge the order dated __/10/12 passed by the appellate authority-respondent no.3 herein in Appeal No.25 of 2012.
2. Heard learned advocate Mr.Mukesh Rathod for the petitioner, learned advocate Mr.H.S.Munshaw for respondent no.1 and learned AGP Ms.Megha Chitaliya for respondent no.2.
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3. Learned advocate for the petitioner submitted that the petitioner was working as driver in the fire station of respondent- Municipal Corporation since 15.3.1971. He was caught with Narcotics by the Narcotic squad on 26.5.1997 during the checking. Therefore, the criminal proceedings were initiated against him. The respondent-Municipal Corporation suspended the petitioner from service on 8.7.1997 in view of the aforesaid criminal proceedings initiated against the petitioner. Thereafter, the respondent-corporation issued the chargesheet to the petitioner. However, no departmental proceedings were initiated against the petitioner.
4. Learned advocate for the petitioner, thereafter, submitted that the Sessions Court passed an order on 17.12.1998 in Criminal Case No.172 of 1997, whereby the petitioner was convicted for the offences punishable under N.D.P.S.Act. It is contended by learned advocate for the petitioner that the respondent- Corporation, without holding any departmental inquiry, only on the basis of the order passed in criminal case, straightaway issued second show cause notice to which the petitioner gave the reply. However, without considering the same, the respondent-Corporation dismissed the petitioner Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Sep 30 01:10:35 IST 2015 C/SCA/17973/2014 ORDER from service with effect from 27.10.1999.
5. At this stage, learned advocate Mr.Rathod appearing for the petitioner submitted that the petitioner filed an Application No.818 of 2011 under the provisions of the Payment of Gratuity Act before the respondent no.2- Controlling Authority wherein he has claimed the amount of gratuity of Rs.87,000/-. The respondent no.2-Controlling Authority, by an order dated 16.4.2012 passed in Application No.818 of 2011, directed the respondent-Corporation to pay an amount of Rs.77,970/- towards gratuity to the petitioner with interest @10% from 28.10.1999. Against the said order passed by respondent no.2- Controlling Authority, the respondent-Corporation filed Appeal No.25 of 2012 under the provisions of the Payment of Gratuity Act before the respondent no.3-appellate authority. The respondent no.3-appellate authority by an order dated __/10/12 allowed the said appeal and thereby quashed and set aside the order passed by the respondent no.2-Controlling Authority.
6. Learned advocate Mr.Rathod appearing for the petitioner mainly contended that the order passed by the appellate authority is illegal, perverse and, therefore, the same be quashed and set aside. It is contended that the petitioner Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Sep 30 01:10:35 IST 2015 C/SCA/17973/2014 ORDER has not committed any misconduct by which the respondent-Corporation has suffered any loss in terms of money or otherwise. The appellate authority ought to have considered the fact that the petitioner has served with the respondent- Corporation for 29 years and, therefore, he is entitled for the amount of gratuity. In fact, the Controlling Authority has rightly directed the respondent-Corporation to pay the amount of gratuity to the petitioner with interest. However, the appellate authority has wrongly placed reliance upon the provision contained in Section 4(6) of the Payment of Gratuity Act. Learned advocate, therefore, contended that though the respondent-Corporation issued the chargesheet, full fledged departmental inquiry was not held against the petitioner and only on the basis of the order of conviction passed by the Sessions Court, the petitioner has been dismissed from the service. He, therefore, requested that the impugned order passed by the appellate authority-respondent no.3 be quashed and set aside and thereby respondent-Corporation be directed to pay the amount of gratuity as per the order passed by the Controlling Authority.
7. On the other hand, learned advocate appearing for the respondent-Corporation mainly contended that no illegality is committed by the Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Sep 30 01:10:35 IST 2015 C/SCA/17973/2014 ORDER appellate authority and the appellate authority has rightly relied upon provision contained in Section 4(6) of the Payment of Gratuity Act. The Sessions Court has convicted the petitioner and, therefore, the respondent-Corporation has rightly dismissed the petitioner on the basis of the order of conviction passed by the competent Court. It is further contended that this petition is filed after a period of more than two years and, therefore, there is a delay in filing the present petition and on this ground also, this petition be dismissed.
8. I have considered the arguments advanced on behalf of learned advocates for the parties. I have also gone through the material produced on record. From the record, it is revealed that the petitioner was caught by the Narcotic Squad during checking and, therefore, FIR came to be registered against him before the Odhav Police Station under Section 8(c) and 22 of N.D.P.S.Act and he was arrested. The respondent-Corporation, therefore, passed an order on 8.7.1997 by which the petitioner was suspended. The respondent- Corporation also issued the chargesheet on 22.9.1997 to the petitioner. However, criminal case was pending before the Sessions Court against the petitioner and therefore departmental inquiry was not initiated against him and was Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Sep 30 01:10:35 IST 2015 C/SCA/17973/2014 ORDER kept pending. In the meantime, the Sessions Court passed an order on 17.12.1998 and convicted the petitioner for the offence punishable under Section 8(c) read with Section 22 of N.D.P.S.Act and he was sentenced to suffer rigorous imprisonment for a term of 10 years and fine of Rs.1 lac was also imposed. After considering the seriousness of the case, the respondent- Corporation issued the second show cause notice to the petitioner to which the petitioner gave reply and after considering the material on record, the respondent-Corporation passed an order on 27.10.1999 by which the petitioner has been dismissed from service. Thereafter, the petitioner filed an application before the Controlling Authority that the direction be given to the respondent-Corporation to pay the outstanding amount of gratuity to the petitioner with interest. The Controlling Authority passed an order in favour of the petitioner and direction was given to the respondent-Corporation to pay Rs.77,970/- with 10% interest. However, the said order was challenged before the appellate authority of the respondent- Corporation. The appellate authority has mainly placed reliance upon the provision contained in Section 4(6) of the Payment of Gratuity Act and thereby allowed the appeal filed by the respondent-Corporation.
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9. Section 4(6) of the Payment of Gratuity Act provides that:
"4(6) Notwithstanding anything contained in sub- section (1), -
(a) 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;
(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."
10. From the aforesaid provision, it is clear that the gratuity payable to an employee can be forfeited by the employer if the services of the employee have been terminated for any act which constitutes an offence involving moral Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Sep 30 01:10:35 IST 2015 C/SCA/17973/2014 ORDER turpitude. When such offence is committed by an employee in the course of his employment.
11. In the present case, the appellate authority has specifically observed that when the petitioner was serving as driver in the fire station and when he was on duty at Odhav Fire Station, the Narcotic Squad carried out the raid and the petitioner was caught with brown sugar. For the said incident, FIR was filed and Sessions Court convicted the petitioner for the offence punishable under the NDPS Act. The appellate court has, therefore, held that the said offence involving moral turpitude has been committed by the petitioner when he was on duty. Thus, when the services of the petitioner have been terminated for the said offence, the respondent- Corporation is entitled to forfeit the amount of gratuity under the provision of Section 4(6) of the Act. Thus, in the facts of the present case, I am of the opinion that no illegality is committed by respondent no.3-appellate authority while passing the impugned order and, therefore, the present petition deserves to be dismissed and is accordingly it is dismissed.
(VIPUL M. PANCHOLI, J.) Srilatha Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Sep 30 01:10:35 IST 2015