Vinod vs State Of Maharashtra
2010 Latest Caselaw 218 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

                          NAGPUR BENCH :  N A G P U R.




                                                       
                      WRIT   PETITION  No. 5278  OF  2005



    Vinod s/o Vinayak Jinturkar,




                                            
    aged 61 years, 
    r/o F-2, Ashish Apartment,
                            
    Laxminagar, Nagpur-22.                   ...       PETITIONER.
                           
                   -VERSUS -

    1.  State of Maharashtra,
         through its Secretary,
         Industries Department, Mantalaya,
      

         Mumbai-32.
   



    2.  The Managing Director,
         Maharashtra Small Scale Industries Development Corpn. 
         Kripa Nidhi, 9, Walchand Hirachand Marg,
         Ballard Estate, Mumbai-01.





    3.  The Regional Provident Fund Commissioner,
         341, Bhavishya Nidhi Bhavan,
         Bandra (E), Mumbai.                        ...     RESPONDENTS.

                                  ....





    Mr. Anand Parchure     Advocate for the Petitioner.
    Mr. A.M. Deshpande, A.G.P.,  for  Respondent no.1.
    Mr. B. Lahiri Advocate for Respondent no.2.
    Ms.Tanna h/f Mr.Sundaram Advocate for Respondent no.3.
                                     ....




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                           CORAM  : V.C. DAGA &  A.B. CHAUDHARI, JJ.

                           DATED :   29    NOVEMBER,   2010.
                                        th
                                                            




                                                                 
    ORAL JUDGMENT (Per A.B. Chaudhari, J.) :

In the present writ petition, the petitioner has put to

challenge the order dated 28.11.2003 about the recovery of subsistence

allowance and also prayed for a direction for payment of leave

encashment, provident fund and gratuity with interest thereon.

2. During the pendency of the above writ petition, this Court by

the order dated 11.12.2006 allowed the petitioner to withdraw the amount

of leave encashment in the sum of Rs.98,400/- and the amount of gratuity

Rs.2,83,842/- was directed to be invested .

3. During the course of hearing of this petition, the counsel for

contesting respondent no.2 fairly stated that insofar as leave encashment is

concerned, the petitioner was entitled to the same and respondent no.2

does not dispute its liability to make payment thereof and that is why this

Court ordered payment of the same to the petitioner. We, therefore,

confirm the said interim order dated 11.12.2006. The counsel for

respondent no.2 however hotly contested the claim of the petitioner for

payment of gratuity on the ground that the petitioner was proceeded

against in a Departmental Enquiry and was found guilty of serious charges

and that is why respondent no.2 was entitled to forfeit the entire gratuity

amount. According to him, the petitioner was charged for

misappropriation of 3150 Mts. of iron and steel to respondent no.2 under

Warehouse credit scheme and was found guilty. It is due to the act of

omission and commission on the part of the petitioner the respondent no.2

had to suffer loss of Rs.4.85 crores and that is why respondent no.2 was

entitled to have forfeiture of the amount of the gratuity due to the

petitioner.

4.

We have heard learned counsel for the rival parties. It is not

in dispute that a regular Departmental Enquiry was held against the

petitioner. It is not further in dispute that in the said Departmental Enquiry

no specific charge was framed against the petitioner that he had caused a

particular quantified loss to the Corporation and therefore he was liable to

make payment of the amounts towards the loss caused to the Corporation.

Consequently, there is no finding recorded against the petitioner that he

had caused any particular loss to the Corporation by his act of omission

and/or commission and therefore he was liable to make good the loss.

The contentions raised by learned counsel for respondent no.2/Corporation

are therefore liable to be rejected since respondent no.2 was obliged to

follow the principles of natural justice, if at all it wanted to recover the

amount from the petitioner for the alleged loss caused to it by specifically

framing a charge to that effect and then by leading specific evidence on

that point and then by recording a specific finding that the petitioner had

caused loss to the Corporation. Admittedly, in the instant case, neither

there is any such charge framed against the petitioner in the Departmental

Enquiry held against him nor any finding has been recorded to that effect.

5. While considering the scheme of the Gratuity Act, in the case

of Jaswant Singh Gill v. Bharat Coking Coal Ltd. & ors. - 2007-I LLJ

795, the Supreme Court in para 9 has had to say thus :

"The Act provides for a closely neat scheme providing for

payment of gratuity. It is a complete code containing detailed

provision covering the essential provisions of a scheme for a

gratuity. It not only creates a right to payment of gratuity but

also lays down the principles for quantification thereof as also

the conditions on which he may be denied therefrom. As

noticed hereinbefore, sub-section (6) of Section 4 of the Act

contains a non-obstante clause vis-a-vis sub-section (1)

thereof. As by reason thereof, an accrued or vested right is

sought to be taken away, the conditions laid down thereunder

must be fulfilled. The provisions contained therein must,

therefore, be scrupulously observed. Clause (a) of sub-section

(6) of Section 4 of the Act speaks of termination of service of

an employee for any act, wilful omission or negligence causing

any damage. However, the amount liable to be forfeited

would be only to the extent of damage or loss caused. The

disciplinary authority has not quantified the loss or damage."

From perusal of Sec. 4(6)(b) of the Gratuity Act, we find that

the discretion given to the employer has to be based upon the material and

the reasons recorded. The termination of services of an employee on the

grounds contemplated under Sec. 4(6)(a) & (b), by itself does not entitle

an employer to forfeit gratuity payable to an employee. Right to receive

gratuity is a statutory right. It is not subservient to the common law rights

of the employer to terminate the services of an employee. In our opinion,

in the absence of any such specific finding, it was not open for respondent

no.2-Corporation to forfeit the payment of gratuity nor the contentions

raised by learned counsel for respondent no.2 can be accepted. We,

therefore, find that the submission on the part of respondent no.2 for

forfeiting the gratuity amount will have to be rejected. In the light of the

above discussion, we make the following order.

5. W.P. No. 5278 of 2005 is partly allowed. Respondent no.2

shall make payment of leave encashment and gratuity to the petitioner.

The amount of leave encashment has already been paid to the petitioner

under the orders of this Court dated 11.12.2006. The amount towards

gratuity has been deposited in this Court and has been invested in the

bank. The petitioner shall be paid entire amount of gratuity with the

interest accrued thereon, as a result of investment made under the orders

of this Court. Writ petition disposed of accordingly. No order as to costs.

                             JUDGE                                       JUDGE