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2018 DIGILAW 337 (CAL)

Bharat Coking Coal Limited v. Appellate Authority

2018-05-02

RAJASEKHAR MANTHA

body2018
JUDGMENT : Rajasekhar Mantha, J. Affidavit-in-opposition filed by the respondent no. 3 in court today is kept with the record. 2. In the instant writ petition, Bharat Coking Coal Limited challenges an order dated 16th August, 2016 passed by the Appellate Authority under the Payment of Gratuity Act 1972. The appeal itself arose from an order passed by the controlling authority dated 11th December, 2014. 3. The facts of the case are, inter alia, that the deceased husband of the writ petitioner was an employee of the BCCL at its Bhojudih Coal Washery. During his lifetime the deceased was charged with having assets disproportionate to his known source of income. Criminal proceedings on that score were dropped for insufficient evidence. In another Criminal Proceeding however, the writ petitioner's deceased husband is stated to have been convicted under Section 302 of the Indian Penal Code. 4. In the departmental proceedings on the charge of disproportionate assets the deceased employee was found to be guilty. 5. A punishment of dismissal from service was imposed on him vide dated 25th November, 2006. In the same order the gratuity was directed to be forfeited. Other employment benefits except gratuity and as applicable to a dismissed employee were directed to be released and have been released. 6. The employee, Abdul Hayat Khan had died on 28th August, 2010. 7. The writ petitioner as widow and legal heir of the deceased employee filed an application before the controlling authority and Assistant Labour Commissioner, Asansol praying for gratuity on account of her husband's employment with the writ petitioner. The said application was allowed and the writ petitioner was directed to pay gratuity to the said Ahemedi Naz, in the authority's order dated 11th December, 2014. 8. To say the least, the said order of the controlling authority is bereft of any reasoning whatsoever and is not sustainable in law. 9. The writ petitioner preferred an appeal before the appellate authority under the Payment of Gratuity Act, 1972 i.e., before the Deputy Chief Labour Commissioner (Central), Asansol, West Bengal. The order of the appellate authority is dated 16th August, 2016 whereby the appeal was dismissed. 10. A bare reading of the aforesaid order dated 16th August, 2016 shows that the same is perverse. The order of the appellate authority is dated 16th August, 2016 whereby the appeal was dismissed. 10. A bare reading of the aforesaid order dated 16th August, 2016 shows that the same is perverse. The appellate authority chose to sit in appeal over the order of dismissal passed by the writ petitioner dated 25th November, 2006 without any jurisdiction whatsoever. 11. The appellate authority wholly failed to appreciate that the authorities under the writ petitioner had negated gratuity to the deceased employee as they found moral turpitude in the conduct of the said employee for which he was being enquired against. Once an employer comes to a conclusion that the charges in the nature of moral turpitude have been proved in a lawful enquiry, there is according to me no need for further proceedings to determine again as to whether there has been in fact any moral turpitude. 12. The appellate authority's order and reasons for upholding the order of the controlling authority are devoid of any reason whatsoever. The purported reasons given at the 3rd page of the impugned order do not constitute reasons at all. The order of dismissal referred to herein-above itself constitutes an order forfeiting the gratuity of the deceased employee. The impugned order cannot be sustained. The orders of the appellate authority dated 16th August, 2016 and the controlling authority dated 11th December, 2014 are hereby set aside. The authorities under the Payment of Gratuity Act, 1972 shall retain the amount of gratuity deposited by the writ petitioner with them until the following occurs. 13. The appellate authority within the writ petitioner, seized off the appeal filed by the deceased employee against the order of dismissal dated 25th November, 2006 being No. WM/BJ/Con/DA/06/445 shall dispose of the said appeal within a period of thirty days from the date of communication of this order to them, if not already disposed of. The issue as regards whether any gratuity would be paid shall abide by the order that may be passed by the said appellate authority. 14. After completion of thirty days however, the amount of gratuity lying in deposit with the authority under the Payment of Gratuity Act shall be paid to the deceased employee's legal heir if no order is passed by the appellate authority as directed herein-above. 15. With the directions as aforesaid, W. P. 24160(W) of 2016 is hereby allowed. 16. 14. After completion of thirty days however, the amount of gratuity lying in deposit with the authority under the Payment of Gratuity Act shall be paid to the deceased employee's legal heir if no order is passed by the appellate authority as directed herein-above. 15. With the directions as aforesaid, W. P. 24160(W) of 2016 is hereby allowed. 16. There will be no order as to costs. 17. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.