Telangana High Court

B.Sathaiah vs Chief General Manager on 14 November, 2022

Bench: Surepalli Nanda

                              1




 IN THE HIGH COURT OF TELANGANA AT HYDERABAD


                  W.P. No. 1999 of 2014

Between:

B.Sathaiah                                 ... Petitioner

And

The Chief General Manager (Personnel)
Ramagundam Area III,
Singareni Colleries Co. Ltd. And another
                                           ... Respondents

JUDGMENT PRONOUNCED ON: 14.11.2022

THE HON'BLE MRS JUSTICE SUREPALLI NANDA




1. Whether Reporters of Local newspapers        :   yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?           :    yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?          :    yes




                                     ____________________
                                        SUREPALLI NANDA, J
                                 2




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA


                    W.P. No. 1999 of 2014

% 14.11.2022

Between:

# B.Sathaiah

                                                     ..... Petitioner

     and
$ The Chief General Manager (Personnel)
  Ramagundam Area III,
  Singareni Colleries Co. Ltd. And another

                                                   .....Respondents


< Gist:

> Head Note:



! Counsel for the Petitioner : Sri W.B. Srinivas


^Counsel for the Respondents: Sri Nandigam Krishna Rao




? Cases Referred:
1. AIR 1962 SCC 673
2. 2004 (1) SCC 755
3, AIR 1967 SCC 1286
4. 2013 (12) SCC 210
                                    3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                     W.P.No. 1999 of 2014

ORDER:

Heard Sri W.B. Srinivas, the learned Senior

Counsel for the Petitioner and the learned counsel for

the Respondents.

2. The petitioner filed this writ petition to issue a writ,

order or direction and more particularly one in the nature of

Writ of Mandamus, declaring the advance Intimation of

Retirement in No.RG.3/OC/MGR/P.012/4631. dated

01.11.2013 as illegal, arbitrary, without jurisdiction, contrary

to the record, and set aside the same and also consequently

direct the direct the respondents to continue the petitioner in

service till he attains the age of superannuation based on his

date of birth as 10.05.1959.

3. The case of the petitioner, in brief, is as follows:

a) The petitioner joined service in the respondent

company as a Badili Filler in 1978 and promoted to the post of

Coal Filler in 1980 and again promoted to the post of

Timberman in 1986.

b) Initially, the date of birth of the petitioner was recorded

as 21.11.1954 and there was no requirement to submit any

certificate with regard to noting date of birth in the official

records.

c) The petitioner studied in Government High School

(Boys) Jammikunta and passed 7th class. The petitioner

appeared SSC as a private candidate in the year 1983 and

passed. In both the certificates the date of birth of the

petitioner was mentioned as 10.05.1959.

d) For promotion to the post of Short Fire, the minimum

qualification is SSC. The petitioner applied for the said post

on the basis of SSC qualification and he was allowed to write

the examination. The petitioner passed the said examination

and promoted to the post of Short Fire in the year 1991.

Thereafter, the petitioner was promoted to the post of Sardar

and again promoted to the post of Overman in the year 1995.

e) The respondent authorities issued notice through news

paper on 25.08.2012 calling for objections with regard to the

date of birth of employees. The petitioner submitted his

objections vide application dated 29.08.2012 and the same

was considered by the respondent authorities and corrected

the date of birth in official records as 10.05.1959.

f) The date of birth of the petitioner was arbitrarily

determined by the Area Level Age Determination Committee

on 28.02.2005 as 31.01.1957 without notice or opportunity to

him.

g) As per Circular dated 23.12.2003 for Matriculates/SSC

personnel, the date of birth recorded in the said certificate

shall be treated as correct and will not be changed under any

circumstances, as per Implementation of Instructions No.76.

Once the respondents have accepted SSC certificate of the

petitioner and recorded date of birth as 10.05.1959, they are

estopped to change the same.

h) The respondents issued advance intimation of

retirement by letter dated 01.11.2013 informing the petitioner

that he will be retiring from service on 30.11.2014 basing on

date of birth as 24.11.1954.

i) In similar circumstances, the High Court in

W.P.No.20029 of 2005 allowed the writ petition on

07.08.2013 holding that when once the respondents acted on

the certificates of qualification of employees, they cannot

deny the benefits to the employees. Since SSC certificate of

the petitioner has been accepted, the respondents are bound

to accept the date of the petitioner as 10.05.1959, but they

failed to do so. Hence, this writ petition.

4. The counter affidavit filed on behalf of the

respondents is as follows:

a) There is no violation of statutory rule or regulation

having any statutory force by the respondent company to

attract the provisions of Articles 14, 19 (1)(g) and 21 of the

Constitution of India for exercising the original jurisdiction of

this Court.

b) As per Implementation Instruction No.76 of the Joint

Bipartite Committee for Coal Industry (JBCCI), the procedure

in determination of the age/date of birth at the time of

appointment is as follows:

"(A) Determination of the age at the time of appointment:

(i) Matriculates:

In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as

correct date of birth and the same will not be altered under any circumstances.

ii) Non-Matriculates but educated:

In the case of appointees who have pursued studies in a recognized educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances.

iii) Ex-servicemen:

In the case of Ex-servicemen who are not matriculates, the date of birth recorded in the Army Discharge Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. In the case of Ex-servicemen who have passed Matriculation examination, the date of birth recorded in the Matriculation examination, the date of birth recorded in the Matriculation Certificate will be treated as correct date of birth, provided they have passed the Matriculation examination before entering the Defence Services; otherwise the date of birth recorded in Army Discharge Certificate will be taken as correct date of birth.

iv) Illiterate:

In the case of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances."

(B) Review/ determination of date of birth in respect of existing employees:

"i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities / Boards / Institutions prior to the date of employment."

b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic.

Provided that where both the documents mentioned in (i)(a) and (i)(b) above are available the date of birth in (i)(a) will be treated as authentic.

ii) Wherever there is no variation in records such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management. The management, after being satisfied on the merit of the case will take appropriate steps for corrections through the Age Determination Committee/Medical Board.

(C) Age Determination Committee/ Medical Board for the above will be constituted by the management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the Company, namely, Form 'B' register, CMPF Record and Identity Cards (untampered) will be treated as final, provided that where there is a nomination in the age recorded in the records mentioned above, the matter will be referred to the

Age Determination Committee/Medical Board constituted by the management for determination of age.

(D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management an/or adduced before it by the employee concerned;

E) Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicates the accurate age assessed and not approximately."

F) Where the Management (i.e)Area Age Assessment Committee consisting of General Manager, Personnel Manager and Medical Officer-in-charge of the Area is satisfied that there is a glaring disparity between the date of birth recorded in the Company records and the apparent age of the employee, the cases may be referred to the Apex Medical Board located at Headquarters of the Company for determination of age.

(G) After the assessment of the age by the Age Determination Committee/medical board the same will be computerized and print out of the same will be given to the employee concerned and the unit from where the reference was received within a month. If age is not, however, computerized still the same will be intimated to the employee concerned and the Unit within a month.

(H) It was agreed that in cases where instead of date of birth, year, has been recorded, 1st July of the year will be deemed to be the date of birth.

c) In the present case, the petitioner did not produce any

documentary evidence at the time of initial appointment and that

the age of the petitioner was determined by the Colliery Medical

Officer as 24 years as on 27.03.1978 and the same was recorded in

authentic service records such as Identity and Service Book and

other records. At the time of initial appointment of the petitioner as

Badli Filler on 01.04.1978 at Ramakrishnapur Area, he was illiterate

and hence, his age was assessed by the then Colliery Medical

Officer. Ex.P.8-7th class certificate is dated 12.03.2013 and that the

petitioner passed SSC in the year 1983 that is after his

appointment. Mere passing SSC for promotion purpose, the

petitioner will not have any right to change his date of birth as per

SSC. As there was a correction of age in the service book, the

petitioner was referred to Area Age Determination Committee on

31.01.2005 and the said committee had assessed his age as 48

years as on 31.01.2005 and that the petitioner had affixed his

signature as token of acceptance of the same. The petitioner was

again referred to Apex Medical Board on 21.11.2009 as different

ages were recorded at different times and that the Apex Medical

Board on 21.11.2009 had assessed the age of the petitioner as 55

years as on 21.11.2009 and the same was acknowledged by the

petitioner as a token of acceptance. As per the Apex Medical

Board, the petitioner attained age of superannuation on

21.11.2014.

d) In view of the above the writ petition is liable to be

dismissed.

PERUSED THE RECORD :

5. The Petitioner initially filed the Writ Petition with

the main prayer as follows :

"It is therefore prayed that the Hon ble Court may be pleased to issue wit order or direction, and more particularly one in the nature of Writ of Mandamus declaring the advance intimation of retirement in No.RG3/OC/ MGR/P.012/468 and 01.11.2013 as illegal, arbitrary, without jurisdiction, contrary to the record, nut and void; and consequently direct the Respondents to continue the petitioner in service till he attain the age of superannuation based on his date of birth as 10.5.1959".

6. Subsequently the Petitioner has filed I.A.No.1 of

2022 in W.P.No.1999 of 2014 on 03.08.2022 seeking

amendment of prayer as follows :

"It is therefore, prayed that the Hon'ble Court may be pleased to issue wit order or direction, and more particularly one in the nature of Writ of Mandamus :

a. Declaring the advance intimation of retirement in No. RG3/OC/ MGR/P.012/468 and 01.11.2013 as illegal, arbitrary, without jurisdiction, contrary to the record, null and void; and set aside the same;

b. And further declare that the petitioner was in service till 31.05.2019 on which date he was retired and was entitled to all consequential service and all monetary benefits till 31.05.2019;

c. Further directing the Respondents to pay the balance amount of Gratuity of Rs.10,00,000/- forthwith, which is wrongly withheld by them in addition to the already paid amounts of Rs.57,34,964/- paid on 05.05.2021, towards the PF amount and Rs.10,00,000/- paid on 02.06.2021, towards part of Gratuity amount and;

d. Pass such other order or further orders may deem fit and proper in the circumstances of the case."

7. Taking into consideration the subsequent events

and the averments made by the petitioner in the

affidavit filed in support of I.A.No.1/2022 in

W.P.No.1999/2014, the same is ordered as prayed for.

8. The High Court in its interim orders dated

28.01.2014 in W.P.M.P.No.2419 of 2014 in W.P.No.1999

of 2014 was pleased to pass orders in favour of the

petitioner directing the respondents to continue the

petitioner in service pending disposal of the main writ

petition by suspending the advance intimation in Ref.

No.RG3/OC/ MGR/P.012/468 dated 01.11.2013.

9. In pursuance to the orders of this Court dated

28.01.2014 in W.P.M.P.No.2419 of 2014 in W.P.No.1999

of 2014, vide Proceedings dated 25.11.2014 vide Ref.

No.RG-3/PER/CC-184/54/4369, of the 1st respondent

herein the Petitioner was allowed to resume for duties

w.e.f., 01.12.2014. The same fact was reiterated vide

Office Order dated 01.12.2013 vide Ref.No.RG3/OC1

MGR/P-13/5312 of the 2nd respondent herein.

10. The petitioner received advance intimation about

the due date of petitioner's retirement vide Ref.

RG3/0C1 MGR/P-012/1903, dated 02.05.2019 of the

respondent company, duly intimating the petitioner

that the petitioner will retire from the service of the

company w.e.f. 31.05.2019. The said proceedings dated

02.05.2019 is extracted hereunder :

Reference to the above, this is to inform that as per the Company's records your are attaining the age of superannuation i.e., 60 years as on 10.05.2019 and subsequently you will retire from the service of the company with effect from 31.05.2019 (Last day of the month in which the employee is retiring).

You are hereby informed that on retirement due to superannuation, you are entitled for grant of actual fare of the class to which your pay entitles you for yourself and your family proceeding to your home town or to a place where you

intend to settle down whichever is less under T.A. Rules of the company. You are also entitled for reimbursement of the actual expenditure incurred on transporting your personal effects. The above facility should be availed by you within six months from the date of retirement and the TA bill and transportation charges bill should be submitted within 30 days from the date of availment falling which the facility would automatically be forfeited due to the efflux of time.

Please acknowledge the receipt of this letter.

11. A bare perusal of the contents of the letter dated

02.05.2019 extracted above, admittedly as borne on

record and undisputed by the Respondents herein and

also admitted in Para 8 of the Additional Counter

Affidavit filed by the Respondents in October, 2019, the

Petitioner's date of birth is 10.05.1959 and the

Petitioner attained superannuation i.e., 60 years on

10.05.2019 and the Petitioner retired from service of

the company w.e.f. 31.05.2019. The stand of the

Respondents as per Para 6 and Para 8 of the Additional

Counter Affidavit filed on behalf of the Respondents is

as follows :

Para 6 : It is submitted that the petitioner has raised a contention at para 7 of his Affidavit that the General Manager RKP has requested the SOM.RK.3 in his communication dated 15.05.1989 to change his date of birth to 10.05.1959 and accordingly his date of birth has been corrected as

10.05.1959 in official records. It is submitted in this regard that the date of birth i.e. 10.05.1959 subsequently changed in the service records was based on the S.S.C. Certificate as against his age i.e. 24 years as on 27.03.1978 assessed by the then Colliery Medical Officer at the time of initial appointment. It is submitted that as per the JBCCI guidelines, the date of birth contained in the Educational Qualification Certificates which were obtained and submitted subsequently, cannot be considered at all for change of date of birth in the service records. Moreover, the petitioner was appointed in the Respondent Company as Badli Filler on 01.04.1978, whereas the SSC Certificate dated March/1983, Transfer Certificate dated 27.09.1988, and 7 Class Certificate dated 12.03.2013 which are all subsequently obtained by the petitioner. Once these certificates are not considered for change of date of birth, the question of taking into consideration of the Certification of the Company Authorities based on the SSC Certificate for change of date of birth, does not arise at all. It is submitted that the General Manager or any authorities of the Respondent Company, except the Area Age Determination Committee or the Apex Medical Board, are not competent to review the date of birth/age of the employees recorded in the records. service records.

Para 8 : It is clear from the above that the concerned General Manager or the Agent, by whose decision the date of birth of the Petitioner is changed as 10.05.1959 instead of 24 years as on 27.03.1978, are not the competent authorities for change of date of birth of the Petitioner.

12. The Petitioner filed the following documents

evidencing the petitioner's date of birth as 10.05.1959 :

(1) Ref.No.P/RKP/3/89/1293, dated. 15.05.1989 of the G.M. RKP.

(2) Overman's Certificate under Coal Mines Regulations, 1957 issued under Mines Act, 1952 by the Colliery Manager indicating the Petitioner's date of birth as 10.05.1959. (3) SIRDAR'S Certificate issued under Coal Mines Regulations, 1957, dated 29.10.1999.

(4) Shot-Firer's Certificate issued under the Mines Act, 1952, dt. 25.07.1995.

(5) 7th Class Certificate dated 12.03.2013. (6) SSC Certificate bearing No.418816. (7) Form of Transfer Certificate No.2907/109.

13. The plea taken in the additional counter affidavit

that the General Manager or the Agent by whose

decision the date of birth of the Petitioner is changed as

10.05.1959 and the same is not done by a Competent

Authority would not have any significance now in view

of the fact that the Petitioner admittedly in pursuance

to the interim orders of this Court dated 28.01.2014

passed in WPMP No.2419 of 2014 in WP No.1999 of

2014 worked for the Respondent Company continuously

till 31.05.2019 and the same is even reflected in Ref:

RG3/CC-1 MGR/P-012/1903, dated 02.05.2019 issued

by the Colliery Manager and retired on the said date.

14. A bare perusal of the contents of the Circular

dated 12.07.2018 issued by the Respondent Company

vide Ref. No.CRP/PER/IRA/W/642/919, dated

12.07.2018 clearly indicates at para 3 as follows :

"Accordingly, all employees who were and continued to be on rolls of the company on or after 29.03.2018 will be entitled to the enhanced maximum ceiling limit of gratuity i.e., Rs.20,00,000/- (Rupees Twenty Lakhs only). The Non-executive employees who have superannuated or separated from the rolls of the company on or after 29.03.2018 and were paid gratuity at the earlier rate and ceiling limit will also be entitled for payment of difference of gratuity, if otherwise eligible".

15. The specific case of the Petitioner vide

I.A.No.1/2022 is that by virtue of Circular of the

Respondent Company vide Ref. No.CRP/PER/

IRA/W/642/919, dated 12.07.2018, the Petitioner is

entitled for the said enhanced maximum ceiling limit

since the Petitioner's husband admittedly as borne on

record was in service as on 29.03.2018 and is therefore

entitled for the enhanced gratuity amount and the same

has been withheld by the Respondents for no justified

reasons. The grievance of the Petitioner is that though

the Petitioner received an amount of Rs.10,00,000/-

towards gratuity, the balance amount of the remaining

part of gratuity of Rs.10,00,000/- payable to the

Petitioner under the Provisions of Payment of Gratuity

Act, 1972 has been withheld by the Respondents for no

rhyme or reason.

16. Justice P.B. Gajendragadkar, J, speaking for the

Supreme Court in the matter of The Garment Cleaning

Works, Bombay v. The Workmen reported in AIR 1962

Supreme Court 673 defined the meaning of gratuity as

under: -

"5. On principle if gratuity is earned by an employee for long and meritorious service it is difficult to understand why the benefit thus earned by long and meritorious service should not be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it should necessarily be denied to him

whatever may be the nature of misconduct for his dismissal. Therefore, the general argument that in all cases where the service of an employee is terminated for misconduct gratuity should not be paid to him, cannot be acceded to. ..."

17. The Apex Court in the matter of Ahmedabad (P)

Primary Teachers' Assn. v. Administrative Officer

reported in 2004 (1) SCC 755 explained the concept of

gratuity and held as under: -

"The main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of rules of superannuation or physical disablement or impairment of vital part of the body. The expression "gratuity' itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide over post-retiral hardships and inconveniences."

18. The Apex Court in the matter of Calcutta

Insurance, Ltd. v. The Workmen reported in AIR 1967

Supreme Court 1286 held as under: -

"The Gratuity is a reward for good, efficient and faithful service rendered for a considerable period and

there will be no justification for awarding the same when an employee voluntarily resigns and brings about the termination of his service except in exceptional circumstances. The Gratuity is earned by an employee for a long and meritorious service. It is paid to a workman to ensure good conduct throughout the period he serves the employer. Long and meritorious service must mean long and unbroken period of service meritorious to the end."

19. In a judgment of the Apex Court in the matter of

State of Jharkhand and others v. Jitendra Kumar

Srivastava and another reported in 2013 (12) SCC 210

it was held that pension and gratuity are not bounty but

property within the meaning of Article 300-A of the

Constitution of India. Paragraphs 16 and 17 of the

report state as under:

"16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property". Article 300-A of the Constitution of India reads as under:

"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the

constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."

20. The Apex in the matter of Ahmedabad (P) Primary

Teachers' Assn. v. Administrative Officer reported in

2004 (1) SCC 755 held as under: -

"The main purpose and concept of gratuity is to help the workman after retirement, whether retirement is a result of rules of superannuation or physical disablement or impairment of vital part of the body. The expression "gratuity' itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as

something given freely, voluntarily or without recompense. It is a sort of financial assistance to tide over post-retiral hardships and inconveniences."

21. Justice V.R. Krishna Iyer, J, speaking for the

Supreme Court in the matter of The Straw Board

Manufacturing Co. Ltd. v. Its Workmen reported in AIR

1967 SC 1286 held as under:

"8. Gratuity for workers is no longer a gift but a right. It is a vague, humanitarian expression of distributive justice to partners in production for long, meritorious service. We have, therefore, to adopt a broad and generous approach to the problems posed before us by Shri Shroff without being mechanistically precedent bound or finically looking into evidence."

22. A bare perusal of the law laid down by the various

Apex Court's judgements referred to and discussed

above it is quite apparent that gratuity is a property

within the meaning of Article 300-A of the Constitution

of India and as such, it is a constitutional right which

cannot be taken away except by authority of law.

23. The provisions of the Payment of Gratuity Act,

1972. Section 4 of the Act of 1972 deals with payment

of gratuity. Section 4(1) deals with payment of gratuity

after rendering continuous service for not less than five

years and Section 4(6) deals with the cases in which

gratuity can be forfeited. For ready reference, Sections

4(1), 4(2) and 4(6) of the Act of 1972 are reproduced

herein-below:

"4. Payment of gratuity.--(1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years --

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.

Explanation -- For the purposes of this section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.

(2) For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days'

wages based on the rate of wages last drawn by the employee concerned.

Provided that in the case of a piece-rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account.

Provided further that in the case of an employee who is employed in a seasonal establishment and who is not so employed throughout the year, the employer shall pay the gratuity at the rate of seven days' wages for each season.

Explanation.--In the case of a monthly rated employee, the fifteen days' wages shall be calculated by dividing the monthly rate of wages last drawn by him by twenty-six and multiplying the quotient by fifteen.

(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."

24. Admittedly in the present case petitioner rendered

services to the Respondent Company till 31.05.2019

and the petitioner's case does not fall under Section

4(6) of the Payment of Gratuity Act, 1972, which deals

with the cases in which gratuity can be forfeited. This

Court opines that the petitioner's right to gratuity is a

constitutional right which cannot be infringed illegally,

arbitrarily.

25. Under these circumstances, taking into

consideration the law laid down by the Apex Court

referred to and discussed above, the Writ Petition is

allowed as prayed for. The advance intimation of