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2014 DIGILAW 1336 (AP)

B. Mohan Rao v. APSRTC

2014-11-05

R.KANTHA RAO

body2014
ORDER : R. Kantha Rao, J. 1. Heard learned counsel appearing for the petitioner and Sri K. Srinivasa Rao, learned Standing Counsel for Respondents - Corporation. 2. The petitioner was appointed in the Respondents Corporation on 29.05.1980 as Mechanic Grade-II, some time thereafter he was promoted as Mechanic Grade-I and charge sheet was laid against him on 02.06.2001 with the following allegations: 01. For having entered the Garage premises of Khammam Depot at about 4.15 hours on 21.05.2001 though you are not on duty on the plea of nature calls with malafide intention of stealing two sealed paint tins of 4 ltrs., each, approximately worth of Rs. 342.32 ps. + Rs. 302.76 ps. Which amounts to serious mis-conduct on your part in terms of Reg. No. 28(xxxi) of APSRTC Employees (Conduct) Reg. 1963." 02. For having attempted to steal away two sealed paint tins of 4 ltrs., each worth of Rs. 342.32 ps. + Rs. 302.76 ps by throwing them out of the garage premises through over wall near generator room, which you brought from the painting room by undoing the knot of the entrance of the room at about 4.15 hours, on 21.05.2001 which amounts to serious mis-conduct on your part in terms of Reg. No. 28(x) of APSRTC Employees (Conduct) Reg. 1963. 03. For having failed to give your written spot statement when you were caught red handed by Sri K. Shekar Rao, S. 676010, Security Guard on patrolling duty at about 4.15 hours on 21.05.2001 and escaped from the scene which amounts to mis-conduct on your part in terms of Reg. No. 28(xxxi) of APSRTC Employees (Conduct) Reg. 1963. 3. Simultaneously, he was placed under suspension and disciplinary enquiry was conducted and thereafter removal order, dated 26.11.2001, was passed against him. Aggrieved thereby, he preferred an appeal before the appellate authority and the same was rejected by order, dated 14.03.2002. Ultimately, he preferred review on 16.03.2002 before the 2nd respondent. The 2nd respondent, by order, dated 17.07.2002, modified the order of removal and reverted the petitioner to the post of Mechanic Grade-II as afresh and the period from the date of removal i.e. 26.11.2001 till reporting for duty, was treated as "Not on duty". Thereafter he joined in the reverted post on 31.07.2002 and retired from service on attaining superannuation with effect from 30.04.2014. Thereafter he joined in the reverted post on 31.07.2002 and retired from service on attaining superannuation with effect from 30.04.2014. In respect of the benefits denied to him, by virtue of the order passed by reviewing the authority, the petitioner raised Industrial Dispute No. 72 of 2007 and the same was rejected by award, dated 08.04.2008. Thereafter he preferred Writ Petition No. 14454 of 2009 and the same is pending. 4. It is submitted by the petitioner that after his retirement on attaining the age of superannuation, the respondents - Corporation paid the service benefits for the period from 31.07.2002 to 30.04.2014, but ignored the past service from 23.05.1980 to 26.11.2001. Therefore, he made representation dated 30.06.2014 to the 3rd respondent to reckon the period from 23.05.1980 to 26.11.2001, to release gratuity for the said period, but the same was rejected by impugned proceedings, dated 19.07.2014, and ultimately his request to reckon the period from 23.05.1980 to 26.11.2001 was rejected. In the aforesaid circumstances, the petitioner filed the present writ petition seeking a direction to the respondents in the nature of Mandamus declaring the proceedings, dated 19.07.2014, issued under the Payment of Gratuity (Central) Rules, 1972 rejecting the claim for payment of benefits for the period from 23.05.1980 to 26.11.2001 by the 3rd respondent as illegal and contrary to law and contrary to the provisions of Payment of Gratuity Act, 1972 and also in violation of Article 14 and 21 of Constitution of India and consequently to set aside the impugned notice directing the respondents to release gratuity with interest for the period from 23.05.1980 to 26.11.2001 and to pass appropriate orders. 5. The writ petition is opposed by the Respondents - Corporation filing counter affidavit whereunder it is contended as follows: 6. The petitioner was caught by the security guard, who is on patrolling duty, while he committing theft of two paint tins of 4 litres each (Crimson and Red) worth Rs. 343.32 ps. and Rs. 302.76 ps. A preliminary enquiry was conducted against the petitioner on 28.05.2001, he was placed under suspension and a charge sheet was laid on 02.06.2001. In respect of the aforesaid allegations, the petitioner submitted his explanation and detailed disciplinary proceedings were held against the petitioner and ultimately he was removed from service by order, dated 13.11.2001. 343.32 ps. and Rs. 302.76 ps. A preliminary enquiry was conducted against the petitioner on 28.05.2001, he was placed under suspension and a charge sheet was laid on 02.06.2001. In respect of the aforesaid allegations, the petitioner submitted his explanation and detailed disciplinary proceedings were held against the petitioner and ultimately he was removed from service by order, dated 13.11.2001. Aggrieved thereby, he preferred an appeal before the Divisional Manager, Khammam, the same was rejected and thereafter, he filed review, in which punishment of removal from service is modified by appointing the petitioner afresh as Mechanic Grade-II and he was posted to Manuguru Depot and the period of absence i.e. from the date of removal from service till he reported for duty was treated as 'not on duty' for all purposes through proceedings dated 17.07.2002. 7. It is further submitted that in view of the fact that the petitioner was appointed afresh as Mechanic Grade-II under Regulation 17 of the Corporation by setting aside the order of removal, the petitioner herein is not eligible for gratuity for the period from 23.05.1980 to 30.07.2002 in view of the circular No. PD-90/1978-79, dated 22.09.1978. As per the said circular, the gratuity can be forfeited in full in any case of moral turpitude which results in removal of an employee. 8. It is further submitted that the gratuity of the petitioner for the period from 31.07.2002 to 30.04.2014, i.e. 11 years, 9 months, 2 days, i.e. from the date of reporting for duty till the date of superannuation was calculated and a sum of Rs. 97,401/- was paid to the petitioner. 9. Lastly, it is submitted that as per Section 4(6)(b)(ii) of Payment of Gratuity Act, 1972, if the services of employee have been terminated for any act which constitutes an offence involving moral turpitude, and if such offence is committed by him in the course of his employment then the gratuity payable to such an employee can be forfeited. Therefore, the version of the respondents is that as per the provisions of Section 4 of Payment of Gratuity Act, the petitioner is not entitled for gratuity for the period from 23.05.1980 to 30.07.2002. Thus, the respondents prayed to dismiss the writ petition. 10. Therefore, the version of the respondents is that as per the provisions of Section 4 of Payment of Gratuity Act, the petitioner is not entitled for gratuity for the period from 23.05.1980 to 30.07.2002. Thus, the respondents prayed to dismiss the writ petition. 10. In the instant case, the petitioner is not claiming gratuity benefits in respect of the period for which he was not on duty and he is claiming gratuity benefits only for the period from 23.05.1980 to 26.11.2001, for which he performed his duties. 11. Learned counsel appearing for the petitioner submits that since the petitioner performed duties in the aforesaid period, he is entitled to gratuity for the said period and the circular relied by the respondents is not applicable to the case of the petitioner, since his removal order was set aside by the reviewing authority. 12. Learned Standing Counsel appearing for the respondents - Corporation submits that the petitioner was removed from service and the punishment was modified by the authority by reverting him to the post of Mechanic Grade-II, and therefore the petitioner is not entitled to the gratuity. 13. It would be necessary to extract relevant portion of the circular, dated 22-09-1978 as well as Section 4(6)(b)(ii) of Payment of Gratuity Act, 1972 respectively which are as follows: Circular No. PD. 90/1978-79, dt. 22-09-1978 "........clarifications in regard to payment of gratuity to the employees under the provisions of the payment of Gratuity Act, 1972. The following are the typical cases, that have been referred for clarification: 1. An employee, removed from service for having misappropriated the revenues of the Corporation by attesting the forged signature. 2. An employee removed from service due to conviction by Courts of law or on other criminal charges. 3. An employee removed from service for having assaulted co-staff members or public while on duty. 4. An employee removed from service for having drunk while on duty. 5. An employee removed from service, for having committed theft of ticket blocks of the depot or having involved in any other case of theft resulting in removal of the employee. Section 4(6)(b)(ii) of Payment of Gratuity Act, 1972: 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. 14. Section 4(6)(b)(ii) of Payment of Gratuity Act, 1972: 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. 14. I have gone through the Circular as well as Section 4(6)(b)(ii) of Payment of Gratuity Act, 1972. The circular or the statutory provision is applicable to the employees, who are removed from service on the charge of mis-conduct involving moral turpitude. In the instant case, there is no doubt that the charge levelled against the petitioner involves moral turpitude. Initially he was removed from service during the course of disciplinary proceedings by the disciplinary authority and the same was confirmed by the appellate authority, but the reviewing authority modified the punishment, reverted the petitioner and posted him afresh as Mechanic Grade-II. Therefore, for all practical purposes, punishment of removal is not in existence against the petitioner. When the punishment of removal is not existence, either the Circular or the aforesaid statutory provision relating to payment of gratuity is not applicable to the case of the petitioner. After the order passed by the reviewing authority, it cannot be said that the petitioner was removed from service and it was still operating against him. Even though the writ petition No. 14454 of 2009, which was filed by the petitioner is pending, there is no legal bar to adjudicate the lis involved in the present writ petition since the petitioner is claiming payment of gratuity for the period from 23.05.1980 to 26.11.2001, notwithstanding the pendency of the aforesaid writ petition filed by him. Hence, the writ petition succeeds and the same can be allowed. 15. Accordingly, the writ petition is allowed. The Respondents - Corporation are directed to pay the gratuity amount to the petitioner, for the period from 23.05.1980 to 26.11.2001, within a period of two months from the date of receipt of a copy of this Order. There shall be no order as to costs. 16. Miscellaneous petitions, if any, pending in this writ petition shall stand closed. Petition allowed