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Jharkhand High Court · body

2017 DIGILAW 1991 (JHR)

Khaya Oraon v. State of Jharkhand

2017-11-20

SHREE CHANDRASHEKHAR

body2017
ORDER : The petitioner came to this Court when a part of gratuity payable to him was withheld/adjusted on the ground of excess payment to him. 2. During the pendency of the writ petition, two office orders both dated 10.11.2015 were issued, under which excess payment to the petitioner was deducted from gratuity and leave encashment payable to him. By filing I.A. No. 3123 of 2016, the petitioner challenged these two orders. Vide order dated 1.9.2017, I.A. No. 3123 of 2016 was allowed and consequently, challenge to office orders dated 10.11.2015 has been incorporated in the prayer clause of the writ petition. 3. Briefly stated, the petitioner was appointed as Sweeper under Drinking Water and Sanitation Department. It is not in dispute that the petitioner would have attained the age of superannuation on 31.1.2013, however, he continued in service till February, 2015. When his post retiral benefits were not paid to him, the petitioner approached this Court in W.P.(S) No.4988 of 2015 which stood disposed of on 3.11.2015 directing the Superintending Engineer, Drinking Water and Sanitation Division-respondent no. 3 to consider the claim of the petitioner and pass an order within 12 weeks. This order has not been complied by the respondent no.3. When the gratuity payment order dated 23.12.2015 for payment of Rs. 34,660/- was issued, though provisional gratuity payable to the petitioner was calculated Rs. 3,11,939/-, the petitioner carne to this Court again. 4. Mr. Jay Shankar Tiwary, the learned counsel for the petitioner submits that except the conditions stipulated under sub-section 6 to Section 4 of Payment of Gratuity Act, 1972, gratuity payable to an employee cannot be forfeited or adjusted on the ground of some excess payment made to him. On legality of the office orders dated 10.11.2015, contention raised on behalf of the petitioner is that without disclosing the basis for calculation of excess payment to the petitioner and without issuing show-cause notice to him, deduction from gratuity and leave encashment is not permissible in law. The learned counsel has relied on decision in "State of Punjab & Ors. vs. Rafiq Masih (White Washer) & Ors." reported in (2015)4 SCC 334 [: 2015(1) JLJR (SC)323]. 5. As against the above, Mr. L.C.N. Shahdeo, the learned G.P.-IV submits that on admitted facts, once it is found that the petitioner was paid salary for two years to the tune of Rs. vs. Rafiq Masih (White Washer) & Ors." reported in (2015)4 SCC 334 [: 2015(1) JLJR (SC)323]. 5. As against the above, Mr. L.C.N. Shahdeo, the learned G.P.-IV submits that on admitted facts, once it is found that the petitioner was paid salary for two years to the tune of Rs. 5,10,000/, the said amount has rightly been deducted from gratuity and leave encashment payable to the petitioner. The learned State Counsel refers to order passed in "Radha Kishun vs. Union of India (UOI) & Ors." reported in (1997)9 SCC 239 . 6. Sub-section 6 to Section 4 of Payment of Gratuity Act, 1972 reads as under: 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. 7. Section 4(1) provides that gratuity payable to an employee who has rendered continuous not less than 5 years of service shall be paid on his superannuation, retirement or resignation or on his death or disablement due to accident or disease. Section 4(1) of Payment of Gratuity Act, 1972 is mandatory. This mandate in law is fortified under Section 14 of the Act which declares that provisions of the Payment of Gratuity Act, 1972 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. Section 13 provides that no gratuity payable under the Act shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court. Section 13 provides that no gratuity payable under the Act shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal court. Section 7(3) mandates that the employer shall arrange payment of gratuity to the employee within 30 days from the date it becomes payable and sub-section 3-A of Section 7 provides that if such payment has been delayed, simple interest at such rate not exceeding the rate notified by the Central Government shall accrue on the gratuity payable to the employee. Office orders dated 10.11.2015, by which gratuity and leave encashment payable to the petitioner has been adjusted against excess payment made to him, do not disclose on what count an amount of Rs.3,05,000/- and Rs. 2,05,000/- was deducted from gratuity and leave encashment respectively. 8. Leave encashment partakes the character of salary and gratuity constitutes post-retiral benefits of an employee. In "Deokinandan Prasad vs. State of Bihar" reported in (1971)2 SCC 330 [: 1971 PLJR 458(SC)], it has been held that pension is akin to right of property under Article 300A of the Constitution of India. 9. In "Balbir Kaur & Anr. Vs. Steel Authority of India, Ltd. & Ors." reported in (2000)6 SCC 493 [: 2007(2) JLJR (SC) 177], it has been held that, "the payment of gratuity is no longer in the realm of charity but a statutory right provided in favour of the employee". In "Jaswant Singh Gill vs. Bharat Coking Coal Ltd. & Anr." reported in (2007) 1 SCC 663 , the Hon'ble Supreme Court has held thus: "13. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non obstante clause vis-a-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must therefore, be scrupulously observed. ......." 10. In the counter-affidavit, the respondent-State has taken a stand that the petitioner continued in service beyond two years of his superannuation from service. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must therefore, be scrupulously observed. ......." 10. In the counter-affidavit, the respondent-State has taken a stand that the petitioner continued in service beyond two years of his superannuation from service. Though the impugned orders dated 10.11.2015 do not disclose any basis, it appears that salary paid to the petitioner for last two years has been recovered from his gratuity and leave encashment amounts on the basis of an alleged letter written by him to the department on 16.4.2015. From the materials brought on record, it is apparent that when the post-retiral benefits to the petitioner were not paid to him, he submitted the alleged application dated 16.4.2015. He has worked till February, 2015. Apparently, letter dated 16.4.2015 was written by the employee under compulsion. In the context of decision in Radha Kishun case, it needs to be recorded that the respondent-State has not pleaded that it has taken disciplinary action against the concerned officials due to fault on whose part the petitioner continued in service for another two years beyond his date of superannuation. It is an admitted position that the petitioner continued in service till February, 2015 to the satisfaction of his superiors. In the background of the law laid down by the Supreme Court, when legality of the impugned orders is examined, it is found that recovery of the alleged excess payment to the petitioner from leave encashment and gratuity payable to him cannot be made. It is a matter of record that before the impugned orders both dated 10.11.2015 were issued to the petitioner, no show-cause notice was issued to him, however, at this stage when it has been held that recovery from gratuity and leave encashment cannot be effected on the ground of his continuance in service beyond the date of superannuation from service, I am not inclined to interfere with the impugned orders only on the ground of breach of rules of natural justice, and in view of the discussions hereinabove, the writ petition is allowed on merits. Impugned orders both dated 10.11.2015 and 23.12.2015 are quashed. Within six weeks amount of Rs. 3,05,000/- deducted from the gratuity and Rs. 2,05,000/- deducted from leave encashment payable to the petitioner shall be paid to him. Impugned orders both dated 10.11.2015 and 23.12.2015 are quashed. Within six weeks amount of Rs. 3,05,000/- deducted from the gratuity and Rs. 2,05,000/- deducted from leave encashment payable to the petitioner shall be paid to him. Respondent No.3 shall ensure such payment to the petitioner." 11. The writ petition is allowed, in the above terms.