Gujarat High Court
Bharat Glass Tubes Ltd vs Ravikiran Singh on 21 April, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/19120/2018 ORDER DATED: 21/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19120 of 2018
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BHARAT GLASS TUBES LTD & 1 other(s)
Versus
RAVIKIRAN SINGH & 2 other(s)
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Appearance:
MR MAYUR DHOTRE, GUPTA LAW ASSOCIATES(9818) for the
Petitioner(s) No. 1,2
MR HARDIK MEHTA, GOVERNMENT PLEADER for the Respondent(s) No.
2,3
MR RAJESH P MANKAD(2637) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 21/04/2022
ORAL ORDER
1. By this petition under Article 226 of the Constitution of India, the petitioners have assailed the impugned orders dated 06.01.2018 and 10.10.2018, passed by Respondent Nos.2 and 3 respectively.
2. Heard, learned Advocate, Mr. Dhotre, appearing for the Gupta Law Associates for the petitioners, learned Advocate, Mr. Mankad, for Respondent No.1 and learned AGP, Mr. Mehta, for Respondent Nos. 2 and 3.
3. Learned Advocate, Mr. Dhotre, appearing for the petitioners submitted that Petitioner No.1 is a company, duly registered under the provisions of the Companies Act, 1956, and is engaged in the manufacturing of figure glass and plain sheet glass.
Page 1 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022C/SCA/19120/2018 ORDER DATED: 21/04/2022 3.1 The petitioners purchased the immovable properties of the erstwhile Haryana Sheet Glass Limited, situated at Ankleshwar on 26.03.2008.
3.2 It is, further, the case of the petitioners that Respondent No.1 was working with erstwhile Haryana Sheet Glass Limited since 20.03.1979.
3.2.1 It was, therefore, submitted that, as stated above, since, the petitioners purchased the Ankleshwar Unit of Haryana Sheet Glass Ltd. on 26.03.2008, it can be said that Respondent No.1 was working with the petitioners since 26.03.2008 and not from 20.03.1979.
3.3 It was submitted that during the course of audit, which was conducted between 16.01.2016 to 20.01.2016, it came to the notice of the petitioners that Respondent No.1 did not submit correct measurement sheets, relating to packing material and as a result of the same, huge financial loss was caused to the petitioners.
3.3.1 It was also revealed that on account of the illegalities committed by Respondent No.1, the petitioners had to suffer the financial loss of Rs.2,42,06,256/-.
3.3.2 In view of the above, the petitioner filed an FIR on 06.02.2016 against Respondent No.1 and Page 2 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 others with Ankleshwar GIDC Police Station, being I- C.R. No. 17/2016, for the offences punishable under Sections 408, 420, 467, 471, 201 and 120(B) of the Indian Penal Code.
3.3.3 It was submitted that the aforesaid FIR culminated into a criminal case, which is pending before the competent Court for trial.
3.3.4 Learned Advocate for the petitioners submitted that, thereafter, Respondent No.1 was dismissed from service vide order dated 29.01.2016.
3.3.5 A copy of the aforesaid order is produced at Page-26 of the compilation.
3.3.6 It was submitted that the order of dismissal from service has not been challenged by Respondent No.1 and the same has attained finality, now.
3.4 Respondent No.1, thereafter, filed an application being Gratuity Application No. 79 of 2016 before Respondent No.2 under the provisions of the Payment of Gratuity Act, 1972 (in brief, 'Act of 1972').
3.4.1 Respondent No.2 allowed Gratuity Application No. 79 of 2016 vide order dated 06.01.2018 and thereby, directed the petitioners to pay Rs.78,508/- with 10% simple interest from 29.01.2016 to Page 3 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 Respondent No.1.
3.4.2 It was submitted that before the petitioners could challenge the order dated 06.01.2018 before the Appellate Authority, i.e. Respondent No.3 herein, Respondent No.1 filed the appeal before Respondent No.3, which came to be allowed vide order dated 10.10.2018, whereby, the petitioners were directed to pay an additional amount of Rs.2,84,590/-, over and above the amount of Rs.78,508/-, i.e. total Rs.3,63,098/-, with 10% interest from 30.01.2016 to Respondent No.1.
3.4.3 At this stage, learned Advocate for the petitioners submitted that the petitioners deposited the amount of Rs.78,508/- along with 10% simple interest before Respondent No.2, without prejudice to their rights and contentions.
3.5 Thus, being aggrieved with the orders dated 06.01.2018 and 10.10.2018, passed by Respondent Nos.2 and 3 respectively, the petitioners have filed the present petition.
4. Learned Advocate, Mr. Dhotre, assailed the impugned orders by mainly contending that, before passing the impugned orders Respondent Nos. 2 and 3 did not follow the procedure and also did not consider the provisions of Section 4(6)(a) of the Act of 1972.
Page 4 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022C/SCA/19120/2018 ORDER DATED: 21/04/2022 4.1 It was submitted that since Respondent No.1 is dismissed from service, he is not entitled to get the amount of gratuity from the petitioners and inspite of that Respondent Nos. 2 and 3 passed the impugned orders.
4.2 It was, further, submitted that for awarding simple interest at the rate of 10% also no reasons are assigned by Respondent Nos. 2 and 3 and therefore, the impugned orders passed by them require to be quashed and set aside.
4.3 Learned Advocate, Mr. Dhotre, at this stage, submitted that criminal case is pending against Respondent No.1, pursuant to the FIR filed by the petitioners against him and hence, he is not entitled to get amount of gratuity.
4.4 It was submitted that, since, the petitioners purchased the immovable property of Haryana Sheet Glass Ltd. in the year 2008, Respondent Nos. 2 and 3 ought to have held that Respondent No.1 is entitled to the benefits from 2008 only and despite that Respondent Nos. 2 and 3 observed that Respondent No.1 is entitled to the benefits with effect from the year 1979, which is not permissible.
4.5 Learned Advocate, Mr. Dhotre, in support of his submissions placed reliance on the decision of the Apex Court, rendered in the case of 'Y.P. Page 5 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 SARABHAI VS. UNION BANK OF INDIA & ORS.', reported in (2006) 5 SCC 377, more particularly, the observations made in Paragraph-11 thereof, whereby, the Apex Court has observed that "...It is settled law that a person who is dismissed from service is entitled to get only the provident fund but no gratuity".
4.6 It was,therefore, urged that the present petition be allowed by quashing and setting aside the impugned orders.
5. On the other hand, learned Advocate, Mr. Mankad, appearing for Respondent No.1 strongly opposed this petition and contended that, while passing the order of dismissal, the petitioners only stated that Respondent No.1 committed the breach of multiple section of the Employees' Standard Code, which every employee is expected to follow.
5.1 It was, therefore, submitted that without assigning any reason, the petitioners dismissed Respondent No.1 from service.
5.2 It was submitted that, in the order of dismissal, there is neither reference with regard to the type of misconduct committed by Respondent No.1 nor is there any mention of the extent of financial loss caused to the petitioners on account of the illegalities committed by Respondent No.1 5.3 It was, further, submitted that the Page 6 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 provisions of Section 4(6)(a) of the Act of 1972 shall not be applicable in the facts of the present case.
5.4 It is pointed out from the record that even the order of forfeiture of gratuity is not passed by the petitioners against Respondent No.1 and therefore, now, it is not open to the petitioners to rely upon the aforesaid provisions.
5.5 Learned Advocate, Mr. Mankad, further submitted that Respondent No.1 was appointed on 20.03.1979 and since then, he was working in the Ankleshwar unit of Haryana Sheet Glass Ltd. and when the petitioners purchased the said unit in the year 2008, Respondent No.1 was continued in service by the petitioners and therefore, Respondent No.1 is entitled to get the benefits of the Act of 1972 from the year 1979.
5.6 It was submitted that Respondent No.1 had preferred an appeal before Respondent No.3 and after considering the all the relevant aspects, Respondent No.3 directed the petitioners to pay the amount of gratuity along with 10% simple interest by considering the appointment of Respondent No. 1 from 20.03.1979 and therefore, no error is committed.
5.7 At this stage, it was pointed out from the record that the petitioners have not challenged the order passed by Respondent No.2 by filing an appeal Page 7 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 before Respondent No.3 and therefore, now, it is not open to the petitioners to contend that Respondent No.1 is not entitled to get the amount of gratuity, as per the provisions of Section 4(6)(a) of the Act of 1972.
5.8 Hence, learned Advocate, Mr. Mankad, submitted that no error is committed by Respondent No.3, while granting the amount of gratuity with effect from 20.03.1979, as the petitioners have accepted that Respondent No.1 is in continuous service since 1979.
5.8.1 In support of the above contention, learned Advocate, Mr. Mankad, referred to the FIR filed by the petitioners and others, a copy whereof is produced at Page-27 of the compilation, wherein, the complainant has in no unclear terms stated that Respondent No.1 is in service since 20.03.1979.
5.8.2 Reference was also made to the documents produced at Pages-55 and 56 of the compilation, which are the PF slips issued by the competent authority under the Employees Provident Fund Scheme, 1952. In the said slips, the date of joining of Respondent No.1 is shown to be 20.08.1979. It was, therefore, submitted that after considering the relevant documents, Respondent No.3 enhanced the amount of gratuity from Rs.78,508/- to Rs.3,63,098/- and hence, no error is committed by Respondent No.3.
Page 8 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022C/SCA/19120/2018 ORDER DATED: 21/04/2022 5.9 It was, therefore, urged that this petition be dismissed.
6. Having heard the learned Advocates for the parties and having perused the material on record, it transpires that Respondent No.1 joined services with Haryana Sheet Glass Ltd. on 20.03.1979. It is not in dispute that, thereafter, the petitioners purchased the Ankleshwar unit of Haryana Sheet Glass Ltd. in the year 2008 and Respondent No.1 was continued in service by the petitioners.
6.1 From the averments made in Paragraph-3 of the affidavit-in-reply filed by Respondent No.1, it is clear that the petitioners were aware that Respondent No.1 was appointed on 20.03.1979 and is working since then. However, the aforesaid aspect was suppressed by the petitioners. From the record it is revealed that even in the PF slips issued by the competent authority, the date of joining of Respondent No.1 is shown to be 20.08.1979.
6.2 Here, it may be noted that the petitioners have filed an FIR against Respondent No.1 and others with Ankleshwar GIDC Police Station, being I-C.R. No. 17/2016, for the offences punishable under Sections 408, 420, 467, 471, 201 and 120(B) of the IPC on 06.02.2016. However, prior to registration of the said FIR, the services of Respondent No.1 were terminated, i.e. on 29.01.2016. Now, if, the order of dismissal from service of Respondent No.1 is Page 9 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 carefully seen, it reveals that the petitioners have only stated as under;
"This letter is to inform you that since you have violated multiple sections of the Employee Standard Code which every employee is expected to follow and as a result of your actions for past several years and as recommended by our Management, your have been dismissed from services with immediate effect."
6.3 Thus, while passing the order of dismissal, the petitioners have not stated anything about any willful omission or negligence on the part of Respondent No.1 by which the damage, i.e. financial or otherwise, is alleged to be caused to the petitioners. In fact, what is stated in the letter of dismissal is that Respondent No.1 has violated multiple sections of the Employees' Standard Code, which every employee is expected to follow. Thus, there is no mention of either financial or any other damage caused to the petitioners on account of the alleged misconduct or illegalities committed by Respondent No.1 and the order of dismissal is totally silent on these aspects.
6.4 It is also pertinent to note that for forfeiting the gratuity of Respondent No.1, the petitioners are required to pass an order to that effect. Admittedly, in the case on hand, the Page 10 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 petitioners have not passed any such order, forfeiting the gratuity of Respondent No.1. Therefore, when Respondent No.1 was denied the amount of gratuity by the petitioners, Respondent No.1 initiated the proceedings under the provisions of the Act of 1972 before Respondent No.2, wherein, after considering the material on record as well as the provisions of Section 4(6)(a) of the Act of 1972, Respondent No.2 passed the order dated 06.01.2018 and directed the petitioners to pay Rs.78,508/- to Respondent No.1 along with 10% simple interest.
6.5 It is pertinent to note that the petitioners did not file any appeal against the said order and therefore, the same has attained finality. However, Respondent No.1 challenged the order dated 06.01.2018 by filing appeal before Respondent No.3 on the ground that Respondent No.2 ought to have granted the benefits with effect from 20.03.1979 and not from 26.03.2008.
6.5.1 Thus, when the petitioners have accepted the order passed by Respondent No.2 by not challenging the same before the Appellate Authority, now, it is not open to them to challenge the said order, for the first time, before this Court by way of present petition.
6.6 This Court also perused the order dated 10.10.2018 passed by Respondent No.3, whereby, the petitioners were directed to pay a sum of Page 11 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 Rs.3,63098/- towards gratuity with 10% simple interest to Respondent No.1.
6.6.1 While passing the order dated 10.10.2018, Respondent No.3 considered the documents produced by Respondent No.1, i.e. he was appointed on 20.03.1979 with Haryana Sheet Glass Ltd. and after the petitioners purchased the Ankleshwar unit of Haryana Sheet Glass Ltd. in the year 2008, he was continued in service, as the petitioners accepted the liabilities of all the employees of Haryana Sheet Glass Ltd..
6.7 Thus, looking to the facts and circumstances of the present case, when Respondent No.3 has awarded the gratuity from the year 1979, this Court is of the view that Respondent No.3 committed no error.
6.8 At this stage, profitable it would be to refer to the provisions of Section 4(6) of the Act of 1972, which reads thus;
"(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 Page 12 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 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."
6.8.1 From the aforesaid provisions, it is clear that it is open to an employer to forfeit the amount of gratuity of an employee, whose services are terminated for any act of willful omission or negligence causing any damage, loss or destruction of the property belonging to the employer to the extent of damage or loss so caused by an employee.
6.8.2 As observed herein above, the order of dismissal from service of Respondent No.1 passed by the petitioners is, if, carefully seen, there is no reference to any alleged loss or damage caused to the employer on account of any willful omission or negligence on the part of Respondent No.1. Further, the petitioners have passed no order forfeiting the amount of gratuity of Respondent No.1. In fact, by not challenging the order dated 06.01.2018 passed by Respondent No.2, the petitioners have accepted their liability to pay the amount of gratuity to Respondent No.1 with 10% simple interest. Therefore, the petitioners cannot be permitted to challenge the orders passed by Respondent Nos. 2 and 3 before this Page 13 of 14 Downloaded on : Wed Apr 27 20:24:46 IST 2022 C/SCA/19120/2018 ORDER DATED: 21/04/2022 Court.
6.9 In view of the above discussions and for the reasons recorded herein above, this petition fails and deserve to be dismissed.
7. This petition stands DISMISSED, accordingly. Notice is discharged. Interim relief, if any, stands vacated. No order as to costs.
(VIPUL M. PANCHOLI, J) UMESH/-
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