THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
WRIT PETITION NOs.3807, 3812, 3818 AND 3850 OF 2021
COMMON ORDER:
All these writ petitions are being disposed of by way of this
common order, as the issue raised in these writ petitions is one and the
same.
2. For the sake of convenience, the facts in W.P.No.3850 of 2021
are discussed hereunder:
a) W.P.No.3850 of 2021 is filed seeking the following relief:
"...to pass an order or orders, direction or a Writ of
Certiorari calling for the records pertaining to the order
dated 09.12.2020 passed in P.G.Application
No.48/18/2020 - E3 on the file of 1st respondent and
quash the same and pass such further or other orders as this Hon'ble Court deems fit and proper in the circumstances of the case."
b) It has been contended by the petitioner that it is a registered Company under the Indian Companies Act and it is in the establishment of Portable Water Plants. In order to do the business, the petitioner engaged the unofficial respondent as workman. The petitioner had further contended that the unofficial respondent tendered resignation on 31.01.2020 and subsequently, he was engaged as a Consultant vide agreement dated 01.02.2020; that as the unofficial respondent was not performing duties in accordance with the terms of the agreement, his services were terminated vide proceedings dated 07.04.2020; and that at the time of termination itself, the petitioner has indicated that the unofficial respondent has indulged in fraud and 2 AKS,J W.P.No.3807 of 2021 & batch caused loss to the petitioner Company and, on that ground, the services of the unofficial respondent was terminated. The petitioner further stated that the unofficial respondent filed an application, under Section 7 of the Payment of Gratuity Act, 1972 (for short, 'the Act'), before the 1st respondent seeking payment of gratuity, and the same was numbered as PG Application No.48/18/2020-E3. It is also stated that in the said application, notice was issued to the petitioner by the 1st respondent and the petitioner filed counter therein. It is stated that in the counter filed in the said application, the petitioner denied that the unofficial respondent is entitled for gratuity. however, it was specifically contended that the petitioner Company has registered a criminal case in FIR No.107 of 2021 on the file of Keesara Police Station against the unofficial respondent, alleging that the unofficial respondent had cheated the petitioner and caused loss to the petitioner Company; that the police are not investigating the said crime; and that as the police are not investigation the said crime, the petitioner Company is not in a position to assess the actual loss caused to them, therefore, the petitioner forfeited the gratuity to the unofficial respondent, however, no orders to that effect have been passed by them.
3. Heard M/s. Indus Law Firm appearing for the petitioner, Sri G. Venkateshvarlu, Standing Counsel for the 1st respondent, and Sri G.V.S. Ganesh, counsel for the 2nd respondent.
4. Counsel for the petitioner had contended that the 1st respondent, without appreciating any of the contentions raised by the petitioner, 3 AKS,J W.P.No.3807 of 2021 & batch had mechanically allowed the applications of the unofficial respondents and directed the petitioner to pay gratuity amount of Rs.8,71,657/- to the unofficial respondent in W.P.No.3850 of 2021 and likewise certain amounts towards gratuity were awarded in favour of the unofficial respondents in the other three writ petitions. Counsel for the petitioner further contended that in-house enquiry is going on to ascertain the loss caused to them by the unofficial respondents and once the said enquiry is completed, the petitioner would pass orders in accordance with Section 4 (6) of the Act, but the 1st respondent authority, without waiting for the petitioner to complete the enquiry, has allowed the applications filed by the unofficial respondents, therefore, the impugned orders passed by the 1st respondent be set aside and let the matter be remanded back to the 1st respondent so as to adjudicate the case afresh by giving opportunity to the petitioner to complete the enquiry proceedings which have been initiated by them so as to ascertain the loss caused to them by the unofficial respondents. Counsel for the petitioner also contended that the unofficial respondents have not resigned technically, but they exchanged the letters of resignation among themselves and one of them has accepted the resignation and, this aspect was not considered by the 1st respondent authority. Counsel had further contended that the petitioner Company terminated the Consultancy services of the unofficial respondents vide orders dated 07.04.2020 and this fact was not even examined by the 1st respondent authority, as such, on this ground also, the impugned orders are liable to be set aside. 4
AKS,J W.P.No.3807 of 2021 & batch
5. Sri G.V.S. Ganesh, counsel for the unofficial respondents, had contended that first of all, these writ petitions are not maintainable, as against the impugned orders passed by the 1st respondent, there is a remedy of appeal under the Act before the appellate authority, and the petitioner filed the present writ petitions without availing the remedy of appeal as provided under the Act. Counsel for the unofficial respondents had further contended that in the counter filed before the 1st respondent authority, the petitioner had categorically admitted that the unofficial respondents tendered their resignation on 31.01.2020 and they were relieved on the same day i.e., on 31.01.2020 and later, they were re-engaged as Consultants by entering into separate agreement on 01.02.2020 and that agreement was terminated on 07.04.2020.
6. Counsel for the unofficial respondents had further contended that admittedly, in the present writ petitions, the unofficial respondents have rendered more than ten years of service and they are entitled for payment of gratuity, but when the petitioner Company has not extended gratuity, the unofficial respondents have no other option, except to approach the 1st respondent claiming payment of gratuity. Counsel for unofficial respondents further contended that at the time of accepting the resignation of the unofficial respondents itself, the petitioner ought to have examined the aspect as to whether any loss has been caused to the petitioner employer by the unofficial respondents or not. Counsel also contended that even at the time of termination of the services of the unofficial respondents as 5 AKS,J W.P.No.3807 of 2021 & batch Consultants i.e., on 07.04.2020 also, the petitioner has not ascertained whether any loss has been caused to them by the unofficial respondents, and without there being any basis, the petitioner is trying to deny payment of gratuity in terms of Section 4 (6) of the Act on the ground that the unofficial respondents have caused loss to them, which is not permissible at all.
7. Counsel for the unofficial respondents further contended that before accepting the resignation of the unofficial respondents on 31.01.2020, the petitioner Company, being an employer, ought to have ascertained as to whether any loss has been caused to them or not by the unofficial respondents and, admittedly, in the present writ petitions, even as on today, there is no finding by the petitioner as to how much loss has been caused to them by the unofficial respondents and, as such, the 1st respondent authority has rightly passed the impugned orders in favour of the unofficial respondents by duly taking into account the judgment rendered by the Honourable Supreme Court in Union Bank of India and others v. C.G. Ajay Babu and another1, wherein it was held as under:
"In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20-4-2004 that the "misconduct proved against you amounts to acts involving moral turpitude". At the risk of redundancy, we may state that the requirement of the statute is not the 1 (2018) 9 SCC 529 6 AKS,J W.P.No.3807 of 2021 & batch proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law."
8. Counsel for the unofficial respondents had further contended that the case of the unofficial respondents stand on a better footing than the facts dealt by the Hon'ble Supreme Court because the counsel for the petitioner has never argued that the unofficial respondents were involved in a criminal case involving moral turpitude; that admittedly, as on the date of accepting the resignation i.e., on 31.1.2020 or even if the termination is taken into account i.e., the termination of the services of the unofficial respondents as Consultants vide proceedings dated 07.04.2020, no where the employer has come to the conclusion as to what is the loss caused to them by the unofficial respondents, and in the absence of the same, the petitioner Company could not have forfeited the gratuity or denied gratuity; and that admittedly, looked from any angle, the unofficial respondents are entitled for payment of gratuity in terms of Section 4(1) of the Act, therefore, there are no merits and these writ petitions are liable to be dismissed.
9. This Court, having considered the rival submissions made by learned counsel for respective parties, is of the considered view that the 1st respondent authority has rightly passed the impugned orders in favour of the unofficial respondents and if the petitioner Company is aggrieved by any of the findings recorded by the 1st respondent authority, they have a remedy in the form of an appeal before the 7 AKS,J W.P.No.3807 of 2021 & batch appellate authority under the Act. Without exhausting the said remedy, the petitioner filed the present writ petitions. Even the contention of the petitioner that the loss caused to them by the unofficial respondents is under investigation, cannot be accepted because the petitioner Company is relying on the police investigation to ascertain what is the loss caused to them. The petitioner Company ought to have come to a definite conclusion at the time of accepting the resignation of the unofficial respondents i.e., on 31.01.2020 as to what is the loss caused to them by the unofficial respondents. Admittedly, in the present writ petitions, at the time of accepting the resignation of the unofficial respondents, the petitioner employer was not in a position to come to a conclusion as to what is the loss caused to them by the unofficial respondents. Even if the argument of the petitioner Company that vide proceedings, dated 07.04.2020, they have terminated the consultancy services of the unofficial respondents, which was the subsequent employment of the unofficial respondents in the form of re-engagement as Consultants vide agreement dated 01.02.2020 after accepting their resignation by the petitioner, is to be accepted, even at the time of termination of consultancy services of the unofficial respondents also, the petitioner Company has not come to a conclusion as to what is the loss caused to them by the unofficial respondents, which would demonstrate that the petitioner Company had terminated the services of the unofficial respondents without there being any material and it would lead to another issue, but for the present, we are confined about the payment 8 AKS,J W.P.No.3807 of 2021 & batch of gratuity under the Act. If the argument of the petitioner Company that they would be relying on criminal investigation and also on the so called domestic enquiry, which is yet to be constituted, so as to ascertain what is the actual loss which has been caused to the petitioner Company by the unofficial respondents, is to be accepted, it may lead to chaotic situation and it might take several months or years to come to a conclusion whether the unofficial respondents have caused any financial loss to the petitioner Company. That is not the object of the Act. As and when an employee is terminated, the employer must pay gratuity in terms of Section 4(1) of the Act. Therefore, looked from any angle, these writ petitions are devoid of merits and they are liable to be dismissed.
10. Accordingly, these writ petitions are dismissed. No order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
______________________________ ABHINAND KUMAR SHAVILI, J 24.11.2021 Note: Mark the LR copy B/o vv