Bombay High Court
Sub-Area Manager, Sasti Open Cast ... vs Shri Narayan Karu Dahekar on 10 January, 2020
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 7016 OF 2016
The Sub-area Manager,
Sasti Open Cast Mines,
Western Coalfields Ltd.
PO Sasti, Tah. Rajura,
Dist. Chandrapur ...... PETITIONER
...V E R S U S...
Shri Narayan Karu Dahekar,
Exh. Sr. Security Guard,
Gauri Talav, Babupeth,
Chandrapur ... REESPONDENT
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Shri S.C. Mehadia, Advocate for Petitioner.
Shri N.B. Meshram, Advocate for Respondent.
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CORAM: RAVINDRA V. GHUGE, J.
DATE :10th JANUARY, 2020
ORAL JUDGMENT:
1] Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2] The petitioner is aggrieved by the judgment and order delivered by the Controlling Authority - Assistant Commissioner, Labour, Chandrapur, dated 21.10.2015/30.10.2015 and the order passed by the appellate authority dated 29.4.2016/2.5.2016, by ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 2 wp7016of16.odt which the respondent has been granted gratuity under the Payment of Gratuity Act, 1972.
3] The petitioner management submits that the respondent was appointed as a Badli Worker on 13.3.1982. Subsequently, he had applied for appointment as a Security Guard and he was appointed in this new capacity on 7.6.1990. The requisite qualification for appointment as a Security Guard, was education upto the 8th standard. The respondent had tendered a school certificate which indicated that he had passed his 8th class. 4] The petitioner has averred that it received an information from anonymous sources that the school certificate produced by the respondent was false and bogus. As such, the petitioner initiated a Departmental Enquiry against the respondent and upon conclusion of such an enquiry, he was issued with the second show cause notice proposing dismissal from service. By order dated 30.01.2014, he was dismissed from service. 5] The petitioner thereafter issued a notice dated 1/2.2.2014 calling upon the respondent to explain as to why his gratuity should not be forfeited for having committed an act which ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 3 wp7016of16.odt amounts to moral turpitude. After considering his reply dated 8.2.2014, the petitioner management issued a communication dated 28.2.2014 in form 'M' and rejected the reply and directed the forfeiture of the gratuity.
6] The respondent approached the controlling authority which, at the relevant time, was the Assistant Commissioner, Labour, Chandrapur, by tendering form 'N' on 13.3.2014. By the impugned judgment dated 21.10.2015/30.10.2015, the application was allowed and the petitioner was directed to pay an amount of Rs. 7,41,371/- towards gratuity along with interest @ 10% per annum w.e.f. 2.3.2014, which is one month subsequent to the dismissal of the respondent from employment. 7] The petitioner has deposited the entire gratuity amount as directed by the controlling authority, which is a pre-condition, while preferring an appeal before the controlling authority which was the Dy. Chief Commissioner for labour, Nagpur. By order dated 29.4.2016/2.5.2016, the appeal came to be dismissed.
8] The learned counsel for the petitioner has strenuously ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 4 wp7016of16.odt canvased that the respondent has not challenged his dismissal from service and as such, the said dismissal has attained finality. In this backdrop, the respondent now cannot claim gratuity when the said gratuity has been forfeited by following the due procedure of law. Reliance is placed upon the judgment of the Hon'ble Apex Court in the matter of Devendra Kumar vs. State of Uttaranchal and Others, (2013)9 SCC 363 to buttress the submission that suppression of information or furnishing false information while seeking an appointment, amounts to a fraudulent act. Dismissal from service on account of such conduct need not be interfered with. It is therefore, contended that as the conduct of the respondent amounts to an act of moral turpitude, the forfeiture of gratuity as ordered by the employer ought not to have been interfered with by the controlling authority. 9] Further reliance is placed upon the judgment delivered by this Court at the Principal Seat in the matter of Shri Laxman Balu Deualkar vs. The Chief Executive Officer, Kolhapur District Central Co.Op. Bank Ltd., 2018(Vol.3) CLR 8 wherein this Court (Coram : S.C. Gupte - J.) considered the view taken by the Hon'ble Apex Court in the matter of Jaswant Singh Gill v. Bharat Coking Coal Ltd, 2007(1)SCC 663, which is ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 5 wp7016of16.odt subsequently considered by the Hon'ble Apex Court in the matter of Union Bank of India & Others vs.C.G. Ajay Babu & Another, (2018)9 SCC 529 and it was held in paragraph Nos. 4,5 and 6 as under:
"4. Section 4 of the Act provides for payment of gratuity. Gratuity is payable to an employee on the termination of his employment after he has rendered a continuous service for not less than five years. Clause (a) of Sub- section (6) of Section 4 provides that not-withstanding anything contained in sub-section (1), 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, is liable to be forfeited to the extent of the damage or loss caused. Clause (b) of Sub-section (6) provides for forfeiture of whole or partial gratuity (i) if the services of the employee are terminated for riotous or disorderly conduct or any other act of violence, or (ii) if the services of the employee have been terminated for any act which constitutes an offence involving moral turpitude, provided it is committed by him in the course of his employment. On its plain terms, clause (b) refers to termination for any "act which constitutes an offence involving moral turpitude". The clause does not contemplate actual conviction of the employee concerned for an offence involving moral turpitude. Any act, which if proved, would constitute an offence, would be covered by the first part of the clause. Anything done contrary to justice, honesty, modesty or good morals involves moral turpitude. If the act constituting an offence is, thus, contrary to justice, honesty, modesty or good morals, it enables the employer to forfeit, wholly or partially, the gratuity payable to the concerned employee. There is nothing in the clause to suggest that actual conviction for an offence involving moral turpitude is a pre-condition for forfeiture of gratuity under it".
"5. Sub-section (6) of Section 4, read as a whole, also does not lend itself to any such construction. Clause (a) of it provides for forfeiture of gratuity in case of termination ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 6 wp7016of16.odt inter alia for "any act, wilful omission or negligence causing any damage or loss" to the employer; whereas as Clause (b)(i) provides for forfeiture in case of termination for "riotous or disorderly conduct or any other act of violence". If these acts or omissions or conducts need not be proved in any court of law as a condition of forfeiture and can only be a matter of domestic inquiry, there is no basis for claiming that the act referred to in clause (b)(ii), namely, "act which constitutes an offence involving moral turpitude", must be proved in a criminal court of competent jurisdiction. The termination may well be based on proof of such act in a domestic inquiry. Besides, considerations of purposive interpretation also negate any such construction of clause (b). As noted by the Supreme Court in the case of Management of Tournamulla Estate vs. Workmen, the object of a gratuity scheme is to provide retirement benefits to workmen who have rendered long and unblemished service to the employer and thereby contributed to the prosperity of the employer and therefore, it may not be correct to say that no misconduct, however grave, can be visited with forfeiture of gratuity or part thereof. Even in a recent case, U.P. State Sugar Corporation Ltd. vs. Kamal Swaroop Tondon, the Supreme Court has held that retiral benefits "are not paid to the employee gratuitously or merely as a matter of boon", but they are paid to the employee "for his/her dedicated and devoted work". In cases involving termination of an employee for misconduct, the law of gratuity, i.e. Section 4(6), makes a distinction between various acts of misconduct. There are acts or wilful omissions (i) which cause damage or 5 (1973) 2 SCC 502 6 AIR 2008 SC 1235 5 / 10 sat wp 9044-2017.doc loss to, or destruction of, property belonging to, the employer, (ii) which amount to riotous or disorderly contract or any other act of violence, and (iii) which constitute an offence involving moral turpitude, each of which are visited with different consequences in the matter of forfeiture. In case of (i) the forfeiture is to the extent of damage or loss caused, whilst in case of (ii) and (iii) the forfeiture may be whole (or partial). These acts, in the first place, lead to termination of the employee and thereafter forfeiture of gratuity in the manner stated by law. If the termination on the ground of any of these acts is justifiable, the forfeiture may follow. If termination is justifiable by reason of the act ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 7 wp7016of16.odt proven in a domestic inquiry, there is no reason why a further proof of any of these acts in a court of competent jurisdiction may be necessary for applying the provisions of forfeiture of gratuity. No such proof is insisted upon in case of acts listed in (i) and (ii) above; and there is no legislative purpose in requiring such proof in case of acts mentioned in (iii) above".
"6 A learned single Judge of our court in the case of Bank of India vs. R.V. Deshmukh has considered the contention of the employee suffering forfeiture of gratuity. The learned Judge has held that there is no merit in the contention that the provisions of Section 4(6)(b)(ii) authorize forfeiture of gratuity only where an employee is convicted of an offence involving moral turpitude.
"Neither the express wordings of the sub-section nor does the legislative intent", held the learned Judge, "support any such strained construction".
10] It is further contended that the act committed by the respondent was one which was within the domain of the employer and it was for the employer to consider as to how it desired to deal with the said misconduct. The petitioner employer was not required to approach the police machinery or file a First Information Report against the employee. It was a misconduct committed under the service conditions of the employer and since the employer was duly empowered by law to follow the mechanism of conducting a Departmental Enquiry, there was no necessity to approach the police machinery in this regard. The petitioner employer dealt with the misconduct of the respondent within the service conditions applicable and by following its ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 8 wp7016of16.odt discipline rules, it initiated a Departmental Enquiry. The respondent tendered a reply dated 8.2.2014, and admitted his guilt of submitting a bogus school certificate which indicated that he had only qualified the 8th class.
11] The petitioner then relies upon the judgment delivered by the learned Division Bench of this Court in the matter of Sarvjeet Chhotelal Tiwari alias S.C. Tiwari vs. Union of India, through General Manager, Central Railways, Mumbai and Others, 2015 I CLR 24 wherein it was held in paragraph Nos. 16 and 17 as under:
" 16. We neither have any hesitation nor any doubt in our mind that the misconduct proved to have been committed by the petitioner is of a grave and serious nature. We do not intend to enlarge this judgment by referring to several reported judgments of the Apex Court as well as many High Courts on the point that misappropriation of whatsoever nature, irrespective of whether it involves Rs.1/- or thousands, is a grave and serious misconduct. It is trite that such a misconduct could never be treated leniently on the ground that such a misconduct is of a minor nature. Quantum of the amount misappropriated is not the yardstick to be considered while awarding punishment in cases of misappropriation, theft, fraud etc".
"17. It has been held by the Division Bench of this Court (Coram : Ranjana Desai & Roshan Dalvi, JJ) in the case of Nilesh R Mandra V/s. Union of India & Others, 2008(4) ALL MR 789, in paragraphs No.6, 7 and 8 as under:-
6. Though undoubtedly the overcharging is to a very limited extent, it is only with regard to that decoy passenger. It is in respect of a case in which the ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 :::
9 wp7016of16.odt petitioner has been watched and caught. It leaves out the numerous instances when the petitioner may not have been watched and caught. Each passenger is a victim. Each passenger has consequently been cheated and defrauded to that extent. The fact that the petitioner could overcharge a passenger whilst being under vigilance and scrutiny showed that the petitioner took advantage of either the ignorance or the illiteracy of the victim. It shows a dishonest attitude of the Government servant. It causes financial loss to the institution he serves. It results in criminal breach of trust between the third party contracting with the institution as also qua the petitioner in the service of that institution. It results in misappropriation of funds as it would cause unlawful loss to the third party and unlawful gain to the petitioner. In a given case, albeit to that limited extent, misappropriation of each small amount may cause unlawful loss to that extent to the institution and the corresponding unlawful gain to the petitioner by the use of such dishonest means and by misconducting himself.
7. It is in this light that it is a settled position in law through various judgments of the Apex Court that the quantum of the amount misappropriated, stolen or defrauded is not the yardstick to determine the extent of the punishment. No matter what is the amount the conduct betrays the trust of the institution in its worker. The institution, therefore, loses confidence in the worker. That institution, therefore, is entitled, upon proof of the misconduct, to remove such employee.
8. It is argued on behalf of the petitioner that it is a small act of a small man and the punishment is, therefore, disproportionate to his misconduct. We cannot persuade ourselves not to consider the victim's point of view. Just as the petitioner is a small man and has committed a small misconduct, his victim is an equally a small man. Rs. 25/- matters to a passenger taking a second class daily ticket from Khadavli to Pune. Such victims would be expected to prefer a rate lesser even to that extent ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 10 wp7016of16.odt to make that small saving. It is only because of his illiteracy or the ignorance of the ticket value that he could be cheated, albeit to that extent. We must, therefore, not turn a nelson's eye to the victim's point of view. In this light, we must refer to the judgments of the Apex Court cited before us by the counsel for the respondents".
12] The petitioner then relies upon the judgment delivered by the learned Division Bench of this Court in the matter of Shivaji s/o. Kerba Paikrao vs. Union of India & others, 2018(5) Mh.L.J.349, wherein it was held that a fraud played by an employee in relation to his employment, amounts to an act of moral turpitude and he needs to be deprived of the entire gratuity amount. The conclusions in paragraph 6 and 7 read as under:
6. Aforesaid both rules show that when there is a termination, on the ground of moral turpitude and the act amounted to offence, the forfeiture of entire gratuity amount is permissible. In view of the aforesaid facts of the present matter, this Court holds that it is not possible to give direction to the respondent LIC to release the gratuity amount or to quash the forfeiture order of the gratuity amount.
7. So far as the second relief like direction to give the arrears in respect of revision of pay scale which was given effect on 1-8-2002 is concerned, it can be said that those rules which were published in notification dated 5-8-
2005, show that if the employee was terminated during period from 1-8-2002 till the date of notification then he will not be entitled to get the arrears of salary on account of revision. Thus, as per the rules and the scheme of the respondent-Corporation the second direction is also not possible. He was terminated within the aforesaid period. In the result, the petition stands dismissed. ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 :::
11 wp7016of16.odt 13] The learned Advocate for the workman has laid heavy reliance on the judgment delivered by the Hon'ble Apex Court in the matter of Jaswant Singh Gill (supra) and Union Bank of India & Others (supra) to support the contention that unless the employer approaches the police authority, an offence is registered against the employee and until such an employee is convicted by the Court having criminal jurisdiction, there cannot be a forfeiture of gratuity. He submits that the petitioner was not restrained from registering a crime against the respondent and if such allegations were proved and if the employee was convicted, then alone could the employer have forfeited the gratuity. 14] In view of the above, it cannot be ignored that the employer was unaware about the alleged fraud played upon it by the respondent from 1990 onwards till his dismissal from service. The respondent worked for 24 years on the basis of a forged school certificate which indicated that he had acquired the requisite qualification for being eligible to be appointed as a Security Guard. It was on account of an anonymous complaint by which the petitioner employer decided to enquire into the certificate tendered by the respondent. As the respondent workman noticed that disciplinary action was being initiated ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 12 wp7016of16.odt against him, he chose to admit his guilt and plead before the employer that he had submitted a false certificate. The normal date of superannuation of the respondent was 31.1.2014. The petitioner awarded him the punishment of dismissal from service w.e.f. 30.1.2014, which is one day prior to the date of superannuation of the employee.
15] I find from Union Bank of India & Others vs.C.G. Ajay Babu & Another case (supra) that there was a settlement between the appellant bank and the Union which provided for forfeiture of gratuity only if a financial loss was caused to the bank by an employee owing to his misconduct. If such an employee was dismissed from service for such a proved misconduct, the employer was permitted to forfeit the gratuity of the employee. Considering such bipartite settlement which provided for forfeiture of gratuity, that the Hon'ble Apex Court relied upon the clauses in the settlement and protected the employee from the forfeiture of gratuity, as a financial loss was not proved. 16] The learned counsel for the petitioner has strenuously canvased that though the respondent had worked practically till the last day of his employment and was dismissed from service ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 13 wp7016of16.odt one day prior to his date of superannuation, the reason for such dismissal cannot be ignored. As an act of fraud was discovered at the fag end of his service tenure on account of the complaint received from an anonymous sender, the management was alerted. Had the management been alerted earlier, the action that the management initiated at the fag end of the career of the employee, would have been initiated the moment it received the information about the fraudulent conduct of the employee. 17] It requires no debate that when an act of misappropriation or a fraud is committed, such an act if proved, would amount to moral turpitude. In the case of Allahabad Bank and another vs. Dipakkumar Bose, 1997(1)CLR 834, the Hon'ble Apex Court considered the expression 'moral turpitude' in paragraph Nos. 9 to 12 as under:
"9. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public. commits forgery and wrongfully withdraws money which he is not entitled to withdraw".
"10. This Court in PAWAN KUMAR VS. STATE OF HARYANA AND ANOTHER. (1996) 4 SCC 17 at page 21 dealt with the question as to what is the meaning of ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 :::
14 wp7016of16.odt expression "moral turpitude" and it was observed as follows"
"Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity".
11. This expression has been more elaborately explained in BALESHWAR SINGH vs. DISTRICT MAGISTRATE AND COLLECTOR. BANARAS, AIR 1959 All. 71 where it was observed as follows:
"The expression "moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must beheld to be due to vileness and deprivity. It will be contrary to accepted customary rule and duty between man and man".
"12. In our opinion the aforesaid observations correctly spell out the true meaning of the expression "moral turpitude". Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3. The High Court observed that there was nothing on record to suggest that the management had formed an opinion objectively on the consideration of all relevant material available against the petitioner that in the circumstances of the case the criminal acts attributed to the petitioner implied depravity and vileness of character and are such as would involve moral turpitude. It did not regard ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 15 wp7016of16.odt entering into a criminal conspiracy to commit the aforesaid offences as being an offence involving moral turpitude. We one, to say the least, surprised at the conclusion which has been arrived by the Allahabad High Court. There was material an received before the appellant, in the form of the report of the C.B.I./S.P.E., which clearly indicated the acts of commission and commissions, amounting to "moral turpitude' alleged to have been committed by the respondent. further more the respondent has been charged with various offences allegedly committed while he was working in the bank and punishment for which could extend upto ten years imprisonment (in case the respondent is convicted under Section 467 I.P.C.)".
18] In the case of State of Jharkhand & Ors vs. Jitendra kumar Srivastava & Anr, AIR 2013 SCC 3383 , it was held by the Hon'ble Apex Court that if an act committed by an employee had caused financial loss to the management, it would be justified for the management to withhold the pensionery benefits of such an employee.
19] It requires no debate that there can be no sympathy which could be shown towards an employee who has committed a misconduct in the nature of misappropriation or a fraudulent act. The only factor that may require consideration in this case is that the employee continued in employment for 24 years and was dismissed from service one day prior to his date of superannuation. There has been no complaint as regards his ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 16 wp7016of16.odt performance of duties and there is nothing on record to indicate that his conduct was detrimental to the interest of the organization. He performed his duties promptly and the record does not reveal any such misconduct which would have been caused on account of his education. As such, whether the respondent was 8th standard qualified or not, did not affect his performance of duties as a Security Guard.
20] While drawing the above stated impression, it must be borne in mind that the message to the society must go out loud and clear that a fraudulent act of an employee cannot be pardoned. Even in the peculiar facts as recorded above, the respondent workman must not gather the impression that he has got away with his fraudulent act and the arms of law were unable to punish him.
21] In this backdrop, I called upon the learned Advocate for the respondent to take instruction as to whether the respondent would agree to waive 50% of his gratuity amount as a commensurate punishment for his misconduct, so as to balance the equities. It is submitted on instructions gathered by the learned Advocate that the respondent is agreeable and he ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 ::: 17 wp7016of16.odt therefore, waives 50% of the gratuity amount. 22] In view of the above, this petition is partly allowed. The impugned judgments delivered by the controlling authority and by the appellate authority, would stand modified and the respondent employee would be at liberty to withdraw 50% share with accrued interest. Therefore, 50% of the gratuity amount with accrued interest would be returned to the employer by the controlling authority.
23] Rule is made partly absolute in the above terms.
(RAVINDRA V. GHUGE, J.) Belkhede RS ::: Uploaded on - 22/01/2020 ::: Downloaded on - 16/03/2020 18:46:01 :::