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2003 DIGILAW 1535 (MAD)

P. K. Durairaj v. Chennai Port Trust

2003-09-29

A.K.RAJAN

body2003
Judgment :- Petitioner has filed the above writ petition seeking for the issuance of a writ of certiorarified mandamus calling for the records relating to Memo No.VI/Con.273/2000/S, dated 04.11.2000 (Exhibit-A) issued by the respondent and to quash the same and consequently, direct the respondent to disburse the retirement benefits. The brief facts required for disposal of this writ petition are as follows: 2. The petitioner was employed in the services of the Chennai Post Trust as Junior Engineer with effect from 19.04.1963. During his 37 years of service, he was promoted to various higher posts and ultimately, he was holding the post of Additional Chief Mechanical Engineer. While so, on 22.08.2000, the petitioner's daughter-in-law lodged a criminal compliant of dowry harassment against her husband and also the petitioner herein. Pursuant to the complaint, the petitioner was arrested by the police on 30.08.2000 and therefore was suspended from service. Thereafter, the suspension was revoked on 4.11.2000. Subsequently, a show cause notice was issued and departmental proceedings were initiated against the petitioner. 3. In the meanwhile, the petitioner has retired from service on completion of 60 years of service on 30.12.2000. Thereafter, the petitioner has not been paid any gratuity and other pensional benefits. He is being paid with only provisional pension. Therefore, the order of withholding gratuity and other pensional benefits is now challenged before this Court. 4. The respondent has filed a counter stating that since the charges framed against the petitioner are the same and identical both in departmental and criminal court proceedings, it was decided that the departmental action may be kept in abeyance till the criminal case is disposed off. Therefore, the respondent by letter dated 1.2.2001 informed the petitioner about the quantum of amount eligible to him as gratuity, which will be settled only after completion of departmental and judicial proceedings. Pending departmental and judicial proceedings, the respondent is paying provisional pension of Rs.5,746/- from December, 2000 onwards. This order is in conformity with Rule 56 and 56(a), under which, the respondent has authority to continue the disciplinary proceedings even after retirement. In view of the pendency of criminal proceedings, the petitioner has no legal right to ask for the disbursement of terminal benefits. 5. Mr.P.K.Gopalraj, learned counsel appearing for the petitioner submits that as per The Payment of Gratuity Act, Section-14 overrules all other Rules, which are contrary to this Act. In view of the pendency of criminal proceedings, the petitioner has no legal right to ask for the disbursement of terminal benefits. 5. Mr.P.K.Gopalraj, learned counsel appearing for the petitioner submits that as per The Payment of Gratuity Act, Section-14 overrules all other Rules, which are contrary to this Act. Therefore, no Rule or Act, which is contrary to the provisions of the Payment of Gratuity Act 1972 can prohibit payment of gratuity under this Act. Further, he referred to Section 4(6) and has submitted that under this Section, the gratuity can be wholly or partially forfeited only in cases where an employee's act has caused a loss to the department. Therefore, under Section 4(6) of the Act, the gratuity cannot be withheld. Therefore, the impugned order withholding the gratuity is illegal and is liable to be set aside. 6. The learned counsel appearing for the respondent contends that as per regulation 56-A(1), where a department and judicial proceedings are initiated in respect of an employee, who has retired on attaining the age of superannuation or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceedings, final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service upto the date of his retirement, or if he was under suspension, on the date of his retirement upto the date immediately preceding the date on which he was placed under suspension; but no Death-cum- Retirement Gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon. Therefore, in accordance with Regulation 56-A, gratuity is withheld and they are awaiting for the orders of the Criminal Court. The learned counsel also submits that the department is prepared to give all the pension benefits including the gratuity, provided this Court passes an order to that effect. 7. It is not in dispute that the petitioner has got 37 years of unblemished service on record and only because of the criminal complaint is pending against him, the respondent is withholding the pensionary benefits. Section 4(1) of The Payment of Gratuity Act reads as follows: "4. 7. It is not in dispute that the petitioner has got 37 years of unblemished service on record and only because of the criminal complaint is pending against him, the respondent is withholding the pensionary benefits. Section 4(1) of The Payment of Gratuity Act reads as follows: "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: (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." 8. On a reading of Sub Section (b) of Section 4 it is clear that gratuity of an employee can be withheld either partially or wholly in case of wilful omissions or negligence causing any damage or loss or destruction of property belonging to the employer, or the employee has been terminated for his riotous or disorderly conduct or any other act of violence on his part or if the employee had 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. Apart from this, for no other reason, the gratuity can be withheld. 9. Admittedly, the criminal complaint, which is pending and the charges framed against the petitioner departmentally are identical and the criminal charges had arisen only out of domestic quarrel, it is nothing to do with the department. Therefore, the gratuity of the petitioner cannot be withheld even if the criminal case, which is pending against him, finally ends against him. 9. Admittedly, the criminal complaint, which is pending and the charges framed against the petitioner departmentally are identical and the criminal charges had arisen only out of domestic quarrel, it is nothing to do with the department. Therefore, the gratuity of the petitioner cannot be withheld even if the criminal case, which is pending against him, finally ends against him. Therefore, the gratuity is payable to the petitioner notwithstanding the fact of pendency of the criminal proceeding and departmental enquiry. The Regulation 56-A ".... but no Death-cum-Retirement Gratuity shall be paid to him until the conclusion of such proceedings and the issue of final orders thereon" would mean only if such criminal proceedings or departmental proceedings are in relation to a misconduct involving moral turpitude, in the course of employment and when the misconduct is not in the course of employment, regulation 56-A has no application. Therefore, the provisions of Regulation 56-A does not apply to the facts of the present case. Therefore, the impugned order withholding the gratuity payable to the petitioner is not legally sustainable and hence, the order is quashed. The writ petition is allowed as prayed for. No costs. Consequently, connected W.P.M.P. is closed.