Gujarat High Court

Municipal Commissioner, Vadodara ... vs Meenaben Shantilal Vaghari on 14 February, 2025

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                            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

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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

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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

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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

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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

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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."

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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