Gujarat High Court
Babubhai vs Navin on 7 October, 2008
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
Print
SCA/3915/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3915 of 2008
=========================================================
BABUBHAI
KASHIRAM RANA - Petitioner(s)
Versus
NAVIN
FLUORINE INDUSTRIES - Respondent(s)
=========================================================
Appearance
:
MR
DIPAK R DAVE for
Petitioner(s) : 1,
NANAVATI ASSOCIATES for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 07/10/2008
ORAL
ORDER
Hearned learned Counsel for the parties.
The petitioner under Article 227 of the Constitution of India is challenging the order dated 30.11.2007 passed by the Appellate Authority, under the Payment of Gratuity Act, 1972 rejecting the Appeal No. 50 of 2007 filed by the petitioner challenging the order of Controlling Authority dated 24.04.2007 rejecting the application of the petitioner for gratuity from the respondent.
The facts in brief, deserves to be set out in detail.
The petitioner was dismissed from service vide order dated 18.03.1999 on account of his various misconducts including that of misappropriation of amount of Rs. 7,64,487/- as mentioned in the dismissal order. The said order was subject-matter of industrial disputes and the Labour Court, Surat decided the same in Reference No. 811 of 1999 holding that the order of dismissal was not legal as the mandatory provisions of Section 33(2)(B) of Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act) had not been complied with. However, the Labour Court while coming to the conclusion with regard to the legality of the order of dismissal impugned before it, also come to the conclusion and recorded its findings with regard to the loss of confidence on the part of the employer as the employee was found to be indulging in misappropriation and thought it fit to award lumpsum compensation in lieu of reinstatement. In other words, the prayer for reinstatement with full back-wages had not been granted by the Labour Court in its award dated 14.10.2004. It deserves to be recorded that both the sides i.e. petitioner as well as respondent employer have accepted this award and no challenge is lying therefrom to any other forums.
The workman demanded gratuity as his dismissal order was found to be illegal and he approached the Controlling Authority under the Payment of Gratuity Act, 1972 with an Application No. 124 of 2006 which came to be rejected by the Controlling Authority vide order dated 24.04.2007 as stated here-in-above.
Being aggrieved by and dissatisfied with the said order dated 24.04.2007 petitioner preferred appeal before the Appellate Authority under the Payment of Gratuity Act,1972 being Appeal No.50 of 2007 which also came to be dismissed, by the Appellate Authority on account of findings recorded by the Labour Court. Being aggrieved by and dissatisfied with those orders the present petitioner has filed present petition under Section 227 of the Constitution of India.
Shri Dipak R. Dave, learned Advocate appearing for the petitioner has vehemently contended that the order of dismissal having been set aside the operation of Payment of Gratuity Act, 1972 in its force would come into play and as per the provisions of Section 4(6) it was a duty cast upon the concerned authority to adjudicate upon the quantum of damage those alleged to have been caused on account of misconduct warranting his termination. In the instant case, the termination has been set aside by the Court and therefore, it would not be open to the respondent to forfeit his gratuity amount U/s. 4(6)(b) as the same have no applicability in light of the judgement of the Labour Court. Shri Dipak R. Dave submitted that the gratuity and its payment under the Payment of Gratuity Act, 1972 has been crystallized to be a statutory right cannot be brushed aside by any authority. In the instant case, without the charge-sheet being given and without holding an inquiry, the order of dismissal was passed, wherein the gratuity amount was forfeited. When straightaway order of dismissal and forfeiture of gratuity was passed without holding an inquiry, a duty was cast upon the employer to afford full opportunity to the employee in the inquiry before effecting any forfeiture of gratuity. Admittedly, in this case, there was no inquiry and therefore, when the order of dismissal has been held to be illegal, the restrictions for releasing gratuity is removed by the Labour Court and therefore it would not be open to the employer to deny the same. This aspect has not been taken into consideration by the Controlling Authority as well as the Appellate Authority and therefore, to that extent, the orders impugned, deserves to be quashed and set aside and the respondent deserves to be directed to pay gratuity amount to the petitioner. Shri Dipak R. Dave relying upon the decision of this Court in case of Gujarat State Fertilizers Chemicals Ltd. V/s. Surendra Amin reported in 2004 (3) GLH page 752 submitted that no amount of gratuity could be withheld or deducted without following the provision as mentioned in sub-section (6) of Section 4 of the Payment of Gratuity Act,1972.
Shri Dipak R. Dave in furtherance of his submission cited one more authority in case of Baroda Traders Co-operative Bank Ltd. V/s. Mahendrabhai B. Shah, reported in 2006(2) LLJ 500, and in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. V/s. Shri Ram Gopal Sharma and ors., reported in AIR 2002 SC 643 and in case of Balbir Kaur and anr. V/s. Steel Authority of India Ltd. and Ors., reported in (2000)6 SCC 4923 and contended that the Payment of Gratuity is a beneficial legislation deserving to be viewed in a proper perspective and when the Labour Court which is competent court to decide and adjudicate upon the dispute has held that the order of dismissal was absolutely illegal, it was not open to the respondent to deny the gratuity to the petitioner by the Controlling Authority as well as the Appellate Authority under the payment of Gratuity Act,1972. They therefore committed error in the face of record warranting interference by this court under Article 226 of the Constitution of India.
Shri K.K.Nanavati, learned Counsel for the respondent submitted that the order of dismissal contains in unequivocal terms that the amount of gratuity is also forfeited. The order itself was a subject matter of scrutiny before the competent Court wherein both the sides had equal opportunity of making submissions in furtherance of their respective case. The terms of reference also go to show that it was a composite challenge and therefore the entire order was under challenge before the Labour Court. The findings of the Labour Court are based on the aspect of loss of confidence and petitioners inability to establish otherwise as recorded at page 20 of the Award would go to show that under what circumstances the order of dismissal was held to be illegal though the employee was not found fit to be reinstated. In other words, the prayer for reinstatement had been negatived by the Court solely based on the aspect of loss of confidence on account of action of misappropriation. The workman has accepted the same without any demur. He submitted that the order passed by the Controlling Authority as well as the Appellate Authority suffered from no infirmity so as to call for the interference under Article 227 of the Constitution of India and therefore matter deserves to be dismissed in limine.
This court is of the view that the term of reference deserves to be noted which contains a specific dispute as to whether the petitioner here-in-above the workman was entitled to be reinstated with all the back-wages. In other words, the entire order of dismissal which incorporated in itself the forfeiture of gratuity was a subject matter of scrutiny before the competent forum. It also deserves to be noted that both the sides have accepted the order and when the order is accepted and there is no demur with regard to the findings of the Labour Court, the Controlling Authority as well as the Appellate authority were under the duty to take them into consideration. In fact when the matter was quite at large before the Labour Court and the parties were leading their evidences in support of their respective cases, it was absolutely open to the petitioner to lead evidence with regard to the aspect of forfeiture which was incorporated and which was part of the order impugned, before the Labour Court in the reference in question. The Labour Court as could be seen from the findings recorded and stated here-in-above was absolutely conscious about not granting any other prayer including reinstatement etc. and decided to award a composite amount of Rs. 3,50,000/- in lieu of their reinstatement. This Court is unable to accept submission of Shri Dipak R. Dave that the termination has not come into play in fact what is set aside is the order of dismissal which was said to have been passed without complying with the provisions of Section 33 of the I.D.Act,1947. But that in itself would not bring any factum of employee to be continued in the service and he would be therefore entitled to other benefits. In-fact there is a finding of the Labour Court that this petitioner was not fit to be given a relief of reinstatement and therefore, the relationship of employer and employee came to an end right when he was dismissed and the entire case was therefore, open before the Labour Court wherein after hearing both the sides, Labour Court has come to the conclusion that the employee did not deserve to be granted anything more than the lump sum amount of Rs. 3,50,000/-. In light of these findings of the Labour Court a question arise as to whether it was open to the petitioner even to seek any relief under the Payment of Gratuity Act, 1972. The answer would obviously to be ?SNO??. However looking to the order passed by the Controlling Authority as well as the Appellate Authority it cannot be said that they suffer from no infirmity as such and therefore the petition which is filed under Article 227 deserves to be dismissed. It goes without saying that the judgement cited at par are absolutely in a different footing and they have no reliance whatsoever to the facts of the present case and Counsel for the petitioner could not point out any similarity between the two establishing a proper nexus with the facts and similarity to the case in question.
In view of the aforesaid discussions, the petition deserves to be dismissed and is hereby dismissed. Notice discharged. However there would be no order as to costs.
Sd/-
(S.R.BRAHMBHATT, J.) Jyoti Top