Gujarat High Court
Municipal Commissioner, Vadodara ... vs Meenaben Shantilal Vaghari on 14 February, 2025
NEUTRAL CITATION
C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7015 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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MUNICIPAL COMMISSIONER, VADODARA MUNICIPAL CORPORATION
Versus
MEENABEN SHANTILAL VAGHARI & ORS.
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Appearance:
MR NILESH A PANDYA(549) for the Petitioner(s) No. 1
MR DARSHIT D THAKKAR(12434) for the Respondent(s) No. 1
MS SURBHI BHATI AGP for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 14/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Darshit D. Thakkar waives service of Rule on behalf of respondent No.1 and learned Assistant Government Pleader Ms.Surbhi Bhati waives service of rule on behalf of respondent no.2 and 3.
2. This petition is filed under Articles 226 and 227 of the Constitution of India challenging the order passed by the learned Page 1 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined Controlling Authority in Gratuity PGA Case No.18 of 2019 dated 02.09.2020 under the Payment of Gratuity Act, 1972 and Appeal No.73 of 2020 dated 17.12.2020, whereby the learned Authority has directed the present petitioner to pay the amount of gratuity to the present respondent.
3. The gist of the case is that the present respondent No.1 filed an application before the learned Controlling Authority under the Payment of Gratuity Act, 1972 claiming the amount of gratuity of deceased husband. Learned Controlling Authority has allowed the application filed by the present respondent directing the present petitioner to pay the gratuity amount of the husband of the respondent of Rs.1,63,610/- with 10% interest from 03.07.2015 to till the date of realization. Challenging the above order, the petitioner has filed the appeal under Section 7(7) of the Payment of Gratuity Act, 1972 contending that as per Form No.N filed by the respondent, the husband of the respondent was removed from the service on 02.07.2015 and until that order is set aside payment towards the gratuity cannot be made to the respondent along with above ground. It is also contended that no documents with regard to the nomination was placed on record Page 2 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined by the respondent, therefore, also the respondent is not entitled to get the benefit of the gratuity. Learned Appellate Authority has passed an order on 17.12.2020 dismissing the appeal and confirming the order passed by the learned Controlling Authority, which is the subject matter challenge before this Court.
4. Heard Learned advocate Mr. Nilesh Pandya for the petitioner and learned advocate Mr. Darshit Thakkar for the respondent No.1.
4.1 Learned advocate Mr. Pandya has submitted that despite the specific contention was raised before learned Appellate Authority regarding removal of the service of the husband of the respondent without giving any finding on the said submission, the appeal came to be dismissed and the order passed by the learned Controlling Authority came to be confirmed. Learned advocate Mr. Pandya further submits that as per the Form No.N which was submitted by the respondent, the respondent was removed from the service on 2.7.2015. Learned advocate Mr. Pandya submits that thereafter the removal order was not further challenged and the same attained finality. Learned Page 3 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined advocate Mr. Pandya submits that as per the provision of the Payment of Gratuity Act, 1972, more particularly, Section 4 wherein, it is provided that the employee would be entitled for the gratuity on attaining the age of superannuation or on retirement or resignation or death or disablement due to the accident or disease. Learned advocate Mr. Pandya submits that as the respondent was removed from the service, he would not be entitled for the amount of the gratuity which was directed by the learned Authority. Learned advocate Mr. Pandya submits that in that view, the present petition is required to be allowed and the impugned order is required to be set aside.
5. As against the same, learned advocate Mr. Thakkar has submitted that though the petitioner has appeared before the learned Controlling Authority but the contention with regard to the removal of the service was not taken and therefore, in absence of any contention, no error has been committed by the learned Controlling Authority in directing the payment of gratuity to the heirs of the employee. Learned advocate Mr. Thakkar summits that even as per Sub-section 6 of Section 4 until the order passed forfeiting the gratuity would place on record, it Page 4 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined cannot be said that the employee is not entitled for the amount of gratuity. Learned advocate Mr. Thakkar submits that as both the Authorities have passed order in favour of the respondent, no interference is required and the present petition is required to be dismissed.
6. Considering the submissions made by the learned advocates for the respective parties, it emerges from the record that learned Controlling Authority has assigned the reasons while passing the orders for payment of gratuity to the heirs of the employee. On referring the order passed by the learned Controlling Authority, it appears that no contention regarding the removal of the service was made before the learned Authority and therefore, in absence of the same, learned Controlling Authority has passed order in favour of the respondent. On referring the memo of the appeal filed before the learned Appellate Authority challenging the order passed by the learned Controlling Authority, it transpires that contention was taken that the employee was removed from the service on 02.07.2015 and that fact reveals from Form No.N which was submitted by the respondent herein. Learned Appellate Page 5 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined Authority appears to have overlooked the above submissions and passed an order dismissing the appeal only on the ground that the sufficient documents were placed on record before learned Controlling Authority and thereafter, the learned Controlling Authority has passed an order. At this stage, it would be appropriate to refer the provision of the Payment of Gratuity Act, 1972, more particularly, Sub-section 1 of Section 4 and Sub- section 6 of Section 4, which are reproduced herein below.
"4. Payment of gratuity. - (1)........
(a) on his superannuation, or
(b) on his retirement or resignation, or
(c) on his death or disablement due to accident or disease: (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."Page 6 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025
NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined 6.1 Learned Appellate Authority, without considering the submissions made by the present petitioner regarding the removal of the service, has concluded the appeal by confirming the order passed by the learned Controlling Authority. 6.2 In that view, this Court is of the opinion that the matter is required to be remanded back to the learned Appellate Authority with direction to decide the appeal after taking into consideration the submissions made by the present petitioner, more particularly, with regard to the removal of the service, as per Form No.N submitted by the respondent.
7. Therefore, the order passed by learned Controlling Authority as well as learned Appellate Authority are hereby set aside. Matter remitted back to learned Appellate Authority and the appeal is order to restored to its file and learned Appellate Authority is directed to decide the appeal within a period of 3 months from the date of the receipt of this order, after taking into consideration the submissions made by both the parties and to decide afresh without being influenced by the order passed by this Court.
8. It is clarified that observations made by this Court in the Page 7 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025 NEUTRAL CITATION C/SCA/7015/2021 JUDGMENT DATED: 14/02/2025 undefined present petition is limited for deciding the present petition and learned Appellate Authority shall, without being influenced by the observations, take decision on its merit.
9. Resultantly, the present petition is allowed. Rule is made absolute.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 8 of 8 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Feb 19 2025 Downloaded on : Wed Feb 19 22:02:23 IST 2025