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Jharkhand High Court · body

2019 DIGILAW 1312 (JHR)

Hari Narayan Prasad v. Central Coalfields Limited

2019-07-22

RAJESH KUMAR

body2019
JUDGMENT : 1. Both the writ petitions have been filed against the order dated 19.05.2010 passed by the Appellate Authority under the Payment ofGratuity Act in PG Appeal/(02)/2010 whereby 50% of the gratuity amount payable to the employee-Sri Hari Narayan Prasad has been withheld. 2. The employee has claimed 100% gratuity by filing writ petition being W.P.(L) No.6444 of 2010. 3. The employer had filed W.P.(L) No.2442 of 2011, challenging the order of payment of 50% amount for services of the employee, who has been terminated on the ground of moral turpitude. 4. The employee was appointed on the post of Register Keeper on 08.04.1973. He has been charged vide charge-sheet dated 13.10.2008 on the allegation of giving false information on his date of birth and manipulation in the official records for justifying the wrong date of birth. The employee has filed his reply on 18.10.2008 controverting the allegations against him in the charge-sheet. 5. Memo of Charge dated 13.10.2008 is quoted hereinunder: It has been reported against you as follows: “That while you were posted and functioning in different capacities at various Projects and Units within Kuju Area during the period since 1982, you committed gross irregularities in matters of furnishing Information relating to your date of Birth in as much as despite the fact your original date of Birth is 09/05/1949, you with a view to fraudulently extend your service tenure by additional six years, you gave an absolutely false and misleading information to the local management claiming your date of birth as 09/05/1955 in place of your actual date of birth i.e. 09/05/1949 and got the incorrect date of birth recorded in various records of the Company with malice intent”. That initially you worked as Register Keeper at the Office of erstwhile custodian West Bokaro group of Colliery vide office order no.CWB/asses-manpower/83/2161-64 dated 8th April’73 of the Custodian West Bokaro Group of Colliery. After your appointment as above, at the time of initial appointment you voluntarily declared your date of birth as 09.05.1949 in the CMPF declaration in From “A” related to dated 19/10/1973 and subscribed your signature thereon. With a view to conceal the date of birth originally recorded in the Service Sheet, you managed to get one of your photograph with duly accepted identity particulars pasted exactly over the original date of birth recorded earlier in the Service Sheet. With a view to conceal the date of birth originally recorded in the Service Sheet, you managed to get one of your photograph with duly accepted identity particulars pasted exactly over the original date of birth recorded earlier in the Service Sheet. In the chain of further irregularities, to assert 09/05/1955 as your correct date of birth, this date of birth was fraudulently recorded in the LTC Declaration submitted at Ara Colliery later on. During the year 1987, when Service Sheet excerpts were issued to each employee of the Company seeking his objections over the particulars recorded in the excerpts, you instead of pointing out the incorrect entry of date of birth in the Service Sheet excerpt, subscribed you signature thereby projecting 09/05/1955 as your actual date of birth. Thus, in the Service Sheet excerpts filled on 01/04/1987 also, your date of birth has wrongly indicated as 09/05/1955. It is further observed that the Form B of GM Unit, Kuju Area duly signed by you, reflects two different dates of birth as 09/05/1955 and 09/05/1949 and both are found tampered. In order to further assert the incorrect date of birth, you have fraudulently reflected your date of birth as 09/05/1955 in Pension. Form viz. PS 3 and PS 4 dated 29.5.98. On transfer to Karma Colliery, you without any reasonable justification once again filled PS 3 and PS 4 Forms for no purpose other than to assert and reinforce your incorrect date of birth i.e. 09/05/1955 as your actual date of birth with corresponding entry in Form B register. Similar manipulation has also been found to be made in the salary date wherein the earlier recorded date of birth i.e. 09/05/1949 which continued till Dec, 2004 has subsequently been got changed to 09/05/1955 to maintain consistency with the manipulated records. All the above maneuvers were carried out by misusing the post and position held by you, having access to vital official records relating to service particulars to reap undue advantage of six additional years of extended service which you were not entitled legitimately as per terms and conditions of your employment. The above manipulation in vital records could not have been possible without your free consent and active connivance with other project officials. Hence the charge. The above manipulation in vital records could not have been possible without your free consent and active connivance with other project officials. Hence the charge. The above omission and commission, if proved, would tantamount to misconduct in terms of Clause 26.9, 26.13 and 26.22 of the Certified Standing Orders of the Company as applicable to you.” You are hereby directed to submit your explanation in writing to the undersigned within one week of the receipt hereof stating why appropriate action should not be taken against you for the above alleged misconduct. Should you fail to submit your explanation within the stipulated time, it will be presumed that you have to explanation to offer in your difference and the thereafter Management shall initiate appropriate action as deemed fit without any further reference to you. Receipt of this Charge Sheet should be acknowledged. 6. Being not satisfied, a departmental proceeding has been initiated by appointing an enquiry officer, who has submitted his report, holding the concerned employee guilty of charges levelled against him. On such finding recorded by the enquiry officer, 2nd show cause notice dated 09.04.2009 has been issued to the employee, which has been replied by him on 18.04.2009. 7. Considering the material brought before the Disciplinary Authority, finally order of dismissal dated 23.05.2009 has been passed. 8. The order of dismissal dated 23.05.2009 was challenged by the employee by filing W.P. (S) No.697 of 2004 and it is pending before this Court for adjudication. 9. When the gratuity amount was not released, the employee has approached the Controlling Authority under the Payment of Gratuity Act, 1972 by filing an application, which has been registered as Case No. 36/(212)/2009. Upon being noticed, the employer has filed his reply taking a plea that as the concerned employee has been dismissed from service on the ground of moral turpitude and as such under Rule 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 the concerned workman is not entitled for gratuity and the entire gratuity amount stands forfeited by the operation of law. 10. Paragraphs 4 and 5 of the reply dated 10.09.2009 by the employer are quoted hereinunder: 1. It is further submitted that as per the findings and report of the Enquiry Officer wherein the charges leveled against the concerned workman were found fully established/ proved against the concerned workman. 10. Paragraphs 4 and 5 of the reply dated 10.09.2009 by the employer are quoted hereinunder: 1. It is further submitted that as per the findings and report of the Enquiry Officer wherein the charges leveled against the concerned workman were found fully established/ proved against the concerned workman. The disciplinary authority considering it appropriate and finding no other extenuating circumstances to take a difference view, the services of the concerned were dismissed from the Company on the basis of entire materials on record including his past records of service after serving him 2nd show cause notice to that effect. 2. That in view of the fact that the services of concerned workman have been Dismissed on the gross and serious misconduct involving Morale Turpitude, the concerned workman is not entitled for the amount of Gratuity under the provisions of section 4(6) of the Payment of Gratuity Act 1972. Accordingly the opposite has forfeited the amount of the Gratuity. 11. Considering the materials brought on record, the Controlling Authority has passed order dated 27.10.2009 holding that Section 4(6) of the Payment of Gratuity Act is not applicable in the present case and accordingly, a direction has been issued for release of the gratuity amounting to Rs. 7,03,395/-(Rupees Seven Lacs Three Thousand three hundred Ninety Five Only). 12. Being aggrieved, the employer has preferred an appeal which has been registered as P.G. Appeal No. (02)/2010. The Appellate Authority has passed the order dated 19.05.2010 in following terms: “However, in this case, since the act of Respondent involves a degree of moral turpitude, wherein he gave only false information in respect of his date of birth, it will meet the end of justice if gratuity is forfeited partially under Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 and the Respondent is allowed only 50% of the gratuity amount i.e. Rs. 351697.00 only. Hence, the appeal is allowed partially and order of Controlling Authority under the Payment of Gratuity Act, 1972 and Asstt. Labour Commissioner (Central), Hazaribagh dated 27.10.2009 is modified accordingly.” 13. The employee has filed W. P. (L) No. 6444 of 2010 for release of 100% gratuity and the employer has filed W. P. (L) No. 2442 of 2011 challenging the order whereby 50% amount has been ordered to be released. 14. I have gone through rival contentions of the parties and material brought on record. 15. The employee has filed W. P. (L) No. 6444 of 2010 for release of 100% gratuity and the employer has filed W. P. (L) No. 2442 of 2011 challenging the order whereby 50% amount has been ordered to be released. 14. I have gone through rival contentions of the parties and material brought on record. 15. It is trite that gratuity is no more bounty, rather it is hard earned money of the employee on the strength of long and meritorious service rendered by him to the employer. In “Garment Cleaning Works v. Workmen” (1962) 1 SCR 711 , it has been held that pension is property within the meaning of Article 300 A of the Constitution of India and a workman can be deprived of benefit of pension only in accordance with law. Ordinarily, pension includes gratuity. In “Balbir Kaur and anr. vs. Steel Authority of India Ltd. and Ors.” (2000) 6 SCC 493 , it has been held that,” the payment of gratuity is no longer in the realm of charity but it is the statutory right provided in favour of the employee”. 16. Section 4(6) of the Payment of Gratuity Act, 1972 is quoted hereinbelow: 4. (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. 17. 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. 17. 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 7(3) mandates that the employer shall arrange payment of gratuity to the employee within 30 days from the date it becomes payable and subsection 3A 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. 18. In “Jaswant Singh Gill v. Bharat Coking Coal Ltd.” (2007) 1SCC 663, it has been held that the payment under Gratuity Act lays down the conditions on which the workman may be denied payment of gratuity and therefore, if accrued or vested right is sought to be taken away, the conditions laid down in the Act must be fulfilled. Section 4(6)(b)(ii) provides that if the services of the employees have been terminated for any act which constitutes an offence involving moral turpitude, provided such offence is committed by him in course of employment, the gratuity payable to him may be wholly or partially forfeited. 19. Admittedly, no criminal case was lodged against the concerned workman and he has not been convicted for an offence of fraud and dishonesty. 20. It is trite that concept of moral turpitude is connected with the offence, and it can be a ground for denial of gratuity, if the concerned workman has been convicted by a criminal court for the offence involving moral turpitude. Section 4(6)(a) deals with the situation that when the employer suffers loss due to misconduct committed by the employee, in such scenario, sub-section provides for forfeiture of property to the extent of damage or loss caused to the employer. Section 4(6)(a) deals with the situation that when the employer suffers loss due to misconduct committed by the employee, in such scenario, sub-section provides for forfeiture of property to the extent of damage or loss caused to the employer. Section 4(6)(b)(i) covers the area, if the services of such employee have been terminated for riotous or disorderly conduct or any other act of violence on his part. 21. In the present case, the employee has been charged for giving false information and manipulation in the official record. No criminal case was lodged against the concerned employee. Thus, the ground of moral turpitude, as envisaged in Section 4(6)(b)(ii) of the payment of Gratuity Act, 1972 is not available to the employer. 22. Thus, from the above judicial pronouncements, it is evident that on the ground of moral turpitude gratuity can be withheld only in cases, if there is conviction by a competent criminal court. In the present case, petitioner has not been convicted for any offence rather dismissed, on the charge of disclosing wrong date of birth, by the departmental proceeding. No loss to the organization has been alleged. 23. In the order of dismissal, nothing has been mentioned regarding the forfeiture of the gratuity amount. Simply the order of punishment has been imposed by holding that concerned employee will cease to be in service of Central Coalfield Ltd. from the date of issuance of the order and further concerned employee has been directed to return any articles or properties of the company, if it is in his possession, within seven days and further has been directed to submit claim for settlement of dues. 24. In view of above discussion, this Court holds that the order to withhold 50% of the gratuity on the ground of moral turpitude is not sustainable in the eyes of law. Accordingly, the impugned order dated 19.05.2010 passed by the Appellate Authority is, hereby, quashed. 25. It is admitted position that the employee has not accepted the factum of severance of service and the order of dismissal dated 23.05.2009 is sub-judice before the High Court in W.P.(S). No.697 of 2014 filed by the employee. Severance of service is sine qua non for payment of gratuity as mandated vide Section 4(1) of Payment of Gratuity Act, 1972. 26. No.697 of 2014 filed by the employee. Severance of service is sine qua non for payment of gratuity as mandated vide Section 4(1) of Payment of Gratuity Act, 1972. 26. In view of above discussion and legal position, it is ordered that gratuity will not be released till disposal of W.P.(S). No. 697 of 2014, wherein factum of severance of service is in dispute. 27. With above observation and directions, both the writ petitions stands disposed of.