Divi. Controller M.S.R.T.C. ... vs Suresh Namdev Pagare
2017 Latest Caselaw 2945 Bom

                                                                WP/500/2000
                                      1

                IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD

                        WRIT PETITION NO. 500 OF 2000

 The Divisional Controller,
 Maharashtra State Road
 Transport Corporation,
 Jalgaon Division, Jalgaon.                      ..Petitioner

 Versus

 Suresh Namdev Pagare
 Near Prakash Talkies
 Pachora, Dist. Jalgaon.                         ..Respondent

                                    ...
                Advocate for Petitioner : Shri S.K. Goyanka
               Advocate for Respondent : Shri B.S.Deshmukh
                                    ...

                        CORAM : RAVINDRA V. GHUGE, J.

Dated: June 08, 2017 ...

ORAL JUDGMENT :-

1. The petitioner Corporation is aggrieved by the judgment of the

Labour Court-cum-Controlling Authority dated 25.5.1999, thereby

allowing the Gratuity Application No. 7 of 1995 filed by the

respondent. The petitioner is also aggrieved by the judgment of the

appellate authority dated 27.8.1999, by which, the appeal preferred

by the petitioner has been rejected.

2. Learned counsel for the respondent submits that he cannot

continue to espouse the cause of the respondent as he has been

WP/500/2000

empaneled by the MSRT Corporation and now he represents the

Corporation in other matters.

3. While admitting this petition on 15.10.2001, this Court

directed the petitioner to deposit the entire gratuity amount of

Rs.14550/- to be invested in the Nationalized Bank. On the condition

of depositing the amount, the impugned directions were stayed. The

said amount has been deposited on 20.12.2001 in this Court.

4. I have considered the strenuous submissions of learned counsel

for the petitioner and have gone through the petition paper book and

record available.

5. The following factors are undisputed:-

          (a)      The respondent was a Bus Conductor.



          (b)      He was apprehended in a surprise check, having

reissued used tickets and having mis-appropriated the ticket

fare collected from the passengers.

(c) After conducting a departmental enquiry under the

Discipline and Appeal Rules of the Corporation, the respondent

was issued with the order of dismissal from service dated

WP/500/2000

7.10.1991, as punishment for proved misconduct of

misappropriation.

(d) On 9.10.1991, the respondent preferred a first

department appeal, praying for reviewing the order of

dismissal.

(e) By order dated 1.9.1992, the first appellate authority

set aside the order of dismissal and substituted the

punishment with stoppage of three increments.

(f) Despite the above order, the respondent did not report

for duties.

(g) The petitioner issued letters on 30.9.1992, 4.1.1993,

13.2.1993, 8.4.1993 and 11.6.1993 calling upon the respondent

to report for duties.

(h) On 26.9.1993, the first appellate authority itself

recalled it's order dated 1.9.1992 and restored the order of

dismissal dated 7.10.1991.

(i) The respondent did not challenged the re-imposition of

the order of dismissal and has accepted it.

WP/500/2000

(j) The respondent preferred application PGA No.7 of 1995

before the Controlling Authority praying for payment of

gratuity, which has been allowed by the impugned judgment.

Said judgment has been sustained by the appellate authority.

6. Shri Goyanka has strenuously submitted that when the

dismissal order was restored, it was on account of the stigma of

dishonesty and which amounts to moral turpitude. Once an employee

is dismissed for moral turpitude, he would not be entitled for gratuity

in view of the judgment of the Honourable Supreme Court in the

matter of Jorsingh Govind Vanjari Vs. Divisional Controller [2017(3)

Mh.L.J. 407 = 2017 (152) FLR 127 = 2016 (12) SCALE 511].

7. While considering the case of the petitioner and the vehement

submissions of Shri Goyanka, I have called upon the learned counsel

to indicate from the Discipline and Appeal Rules as to whether the

first appeal authority, which has passed the order dated 1.9.1992,

had the powers to review it's own decision and restore the decision

of the disciplinary authority. Shri Goyanka could not point out from

the said Rules that the first appeal authority had the power to review

it's own order suo moto or even on an application.

8. In the light of the above, the first appellate authority of the

WP/500/2000

Corporation did not have the power and authorization to review it's

own order and restore the order of dismissal. If the respondent has

not reported for duties, though the order of dismissal was set aside,

it would be a case of abandonment of service, for which the

Corporation could have initiated disciplinary proceedings for proving

unauthorized absenteeism. Nevertheless, the said issue does not

survive after 25 years since the respondent has approached the

controlling authority under the Payment of Gratuity Act seeking

gratuity on the count that he is not in employment. He, therefore

has, by his conduct, established that he did not desire to report for

duties. It is informed by Shri Goyanka that the date of

superannuation of the respondent was 28.2.2012 and he did not

report for duties after 1.9.1992 till 28.2.2012.

9. It is undisputed from the records that the gratuity of the

respondent has been calculated till he had last worked with the

petitioner. These are peculiar facts and circumstances, wherein, the

respondent by his conduct declined to report for duties and

proceeded on the presumption that he has been dismissed whereas

the petitioner's first appeal authority had reinstated the respondent.

10. Shri Goyanka submits that the respondent has not raised any

other claim against the Corporation in last 25 years, save and except

these gratuity proceedings. It cannot be over-looked that the

WP/500/2000

petitioner has not passed an order of forfeiture of gratuity.

11. In the light of the above and considering the scope of the D &

A Rules of the Corporation, the order of the first appeal authority

could not be reviewed by the same authority and as such, the action

of recalling the punishment of stoppage of three increments cannot

be sustained. The first appeal authority had no jurisdiction to recall

or review his order.

12. With this position being established squarely based upon the D

& A Rules of the Corporation, the order of dismissal for moral

turpitude stands set aside by the first appeal authority. Once the

order of dismissal is held to be set aside and replaced by the

punishment of stoppage of three increments, the respondent could

not be deprived of gratuity. It is an altogether different issue that

the respondent did not have the desire to continue in the

employment of the petitioner and hence did not report for duties.

This cannot be a ground for presuming that the appellate authority

could review it's order without having any power to do so under the D

& A Rules.

13. Shri Goyanka then has raised the issue of interest at the rate

of 9% p.a. granted by the Labour Court from the date of it's

judgment. It cannot be ignored that since the petitioner /

WP/500/2000

Corporation had set aside the order of dismissal and had replaced the

same with the punishment of stoppage of three increments, there

was no occasion to pay gratuity to the respondent. It is in peculiar

facts of these case that the respondent himself had abandoned his

employment and sought gratuity. So also the amount of gratuity has

been deposited in this Court on 20.12.2001.

14. Considering the above, this petition is disposed off. The

judgment of the Labour Court stands implemented by the order of

this Court dated 15.10.2001. Rule is, therefore, discharged.

15. The respondent is, therefore, at liberty to withdraw the entire

amount deposited in this Court, along with accrued interest, by

tendering an application, duly identified by an Advocate and

supported with a recent photograph, copy of the Election Commission

Voter Id card and recent address proof.

( RAVINDRA V. GHUGE, J. ) ...

akl/d