JUDGMENT : RAJESH KUMAR, J. 1. Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the order dated 18.10.2016 passed by the Appellate Authority under the Payment of Gratuity Act, 1972 in P.G. Appeal No. (37)/2016-A.7 whereby the order of recovery passed by the Original Authority in P.G. Application No. 36(01)/2015-E.6, has been set aside. It has been held that petitioner is not entitled for gratuity under Section 4(6) of the Payment of Gratuity Act, 1972 as he has been convicted in a criminal case involving moral turpitude. 3. Fact is not in dispute. Petitioner has been appointed on 19.06.1981 under the respondent and after serving till the age of superannuation, he retired w.e.f. 31.10.2014. While petitioner was in service, a criminal case has been lodged against him by the CBI, Dhanbad vide RC Case No. RC-14(A)/1995(D) (VIG/CB/18/95) for misappropriation of domestic coal amounting to Rs. 1,50,000/-. After investigation, the charge sheet has been filed under Section 407, 467, 468, 471 read with section 465, 409 and 120B of the Indian Penal Code and also under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. On conclusion of trial, the petitioner-employee has been convicted by the CBI Court vide judgment dated 09.10.2015 and he has been sentenced for three years rigorous imprisonment with Rs. 50,000/- cost. 4. Against this order of conviction, a criminal appeal has been filed which is pending before this Court. 5. The point has been raised by the petitioner that as per Section 4(1) of the Payment of Gratuity Act, 1972, the petitioner becomes entitled to get gratuity amount on retirement. 6. Since petitioner has retired on 31.10.2014 and till that date neither any departmental enquiry was pending nor he has been convicted and as such, he was entitled to receive gratuity amount. Subsequent conviction by a criminal court cannot be a ground for forfeiture of gratuity. Further the dismissal from service is sine qua non for forfeiture of the gratuity. 7. Since petitioner has retired on 31.10.2014 and till that date neither any departmental enquiry was pending nor he has been convicted and as such, he was entitled to receive gratuity amount. Subsequent conviction by a criminal court cannot be a ground for forfeiture of gratuity. Further the dismissal from service is sine qua non for forfeiture of the gratuity. 7. For this purpose, learned counsel for the petitioner has relied upon the judgments in the case of Shri Shankar Dadoba Naik vs. Maharashtra State Road Transport Corporation, Palghar Division and Others passed by the High Court of Judicature at Bombay in Writ Petition No. 9349 of 2012 and the judgment rendered by the Apex Court reported in Union Bank of India and Others vs. C.G. Ajay Babu and Another, 2018 (9) SCC 529 . 8. On the other hand learned counsel for the respondent has disputed the claim and relied upon the judgments reported in General Manager, Western Washery Zone of M/s Bharat Coking Coal Ltd. vs. Brajendra Kumar Choubey, 2014 (4) JCR 55 , Y.P. Sarabhai vs. Union Bank of India and Another, 2006 (5) SCC 377 and Manohar Singh Neech (Tak) vs. The Regional Labour Commissioner (Central) Dhanbad-cum-Appellate Authority and Others, 2004 (4) JCR 320 . 9. Payment of gratuity is controlled by the Payment of Gratuity Act, 1972. 10. Relevant Sections 4 (1) and 4(6) of the Payment of Gratuity Act, 1972 are quoted herein-under: 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. (b) on his retirement or resignation. (c) on his death or disablement due to accident or disease: Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement: Provided further that in case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs and where any such nominees or heirs is minor, the share of such minor, shall be deposited with the Controlling Authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority. (6) Notwithstanding anything contained in sub-section (i):- (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. (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. 11. The employee has right to receive the gratuity on termination of service, if he has rendered five years of continuous service. Gratuity is a valuable right and not any gratuitous act of the employer. 12. Exception has been carved out under Section 4(6) of the Payment of Gratuity Act, 1972 which contemplates three situations: (i) Under Sub-Section (a), if the service of an employee has been terminated for causing any damage or loss or destruction of property belonging to the employer, in such situation, the employer has right to recover the damage by forfeiting the gratuity. (ii) If the service of an employee has been terminated for his riotous or disorderly conduct or any other act of violation, in such case total gratuity amount can be forfeited. Violence and riotous behavior has been taken very seriously to protect the industrial growth of the nation. (iii) If an employee is convicted by any criminal court of law involving moral turpitude, in such situation, the forfeiture of gratuity is automatic. The effect of the conviction by the criminal court has not been left at the option of the employer. 13. Gratuity has to be paid to an employee for his meritorious and honest service rendered to the employer. The corrupt or immoral employees cannot be given premium in the form of gratuity. 14. The judgment relied upon by the learned counsel for the petitioner i.e Union Bank of India and Others vs. C.G. Ajay Babu and Another (supra) has relied upon by the High Court of Judicature at Bombay in the case of Shri Shankar Dadoba Naik vs. Maharashtra State Road Transport Corporation, Palghar Division and Others. 14. The judgment relied upon by the learned counsel for the petitioner i.e Union Bank of India and Others vs. C.G. Ajay Babu and Another (supra) has relied upon by the High Court of Judicature at Bombay in the case of Shri Shankar Dadoba Naik vs. Maharashtra State Road Transport Corporation, Palghar Division and Others. Para-17 reads as under: “Apart from above, the fact remains that petitioner was never charge-sheeted nor convicted for an offence involving moral turpitude as is prescribed under the provisions of clause (b) of Sub-Section (6) of Section 4 of the Act.” 15. In above case, relief has been granted as because employee has neither been charge-sheeted nor convicted for an offence involving moral turpitude. 16. Reference can be made to the judgment reported in General Manager, Western Washery Zone of M/s Bharat Coking Coal Ltd. vs. Brajendra Kumar Choubey, 2014 (4) JCR 55 wherein judgment reported in 2006 (5) SCC 377 and 2004 (4) JCR 320 has been considered by which it has been settled that if an employee is convicted by a criminal court involving moral turpitude then in that case the forfeiture of gratuity is automatic. Relevant para-15 of the said judgment is quoted herein-under: “15. Section 4(6)(b) of the Payment of Gratuity Act stipulates that the gratuity payable to an employee may be wholly or partially forfeited 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. We are of the view that in terms of Section 4(6)(b) of the Payment of Gratuity Act, when there is a conviction for the offence involving moral turpitude, the gratuity is automatically forfeited. We are also fortified by the judgment of the Division Bench of this Court reported in the case of Manohar Singh Neech (Tak) vs. The Regional Labour Commissioner (Central) Dhanbad-cum-Appellate Authority and Others, 2004 (4) JCR 320 . In the said case, the Appellate Authority allowed the appeal of the employee and directed payment of gratuity on the ground that there was no specific or separate order for forfeiting the gratuity and thus ordered the payment of the gratuity. In the said case, the Appellate Authority allowed the appeal of the employee and directed payment of gratuity on the ground that there was no specific or separate order for forfeiting the gratuity and thus ordered the payment of the gratuity. The writ petition filed by the Management was allowed by the learned Single Judge holding that in terms of Section 4(6)(b) of the Act, when the employee was guilty of misconduct involving moral turpitude, the employee automatically forfeited his right of Payment of Gratuity . In the Letters Patent Appeal filed by the employee, confirming the order passed by the learned single Judge, the Division Bench held as under: “3. It is argued on behalf of the appellant that unless there was a separate proceeding leading to forfeiting the gratuity that may be paid, the appellant would be entitled to gratuity whatever might be the misconduct for which he was dismissed from service. We find it difficult to accept the submission. In our view, the learned single Judge has rightly interpreted the scope of Section 4, sub-section (6)(b) of the Act, and has rightly come to the conclusion that in view of the misconduct, the appellant was found guilty of and the order of dismissal which was upheld by the Division Bench, he was not entitled to claim gratuity. It was contended that the appellant was acquitted in a criminal case, as can be seen from Annexure 5, the order in Revision and, in view of that, gratuity could not be denied. We find no merit of this submission. It is not for us to comment on the nature of judgment of the proceeding in the revisional court, but the mere fact that he was acquitted in a criminal case does not at all affect the dismissal from service for gross misconduct automatically dis-entitling him to gratuity in terms of the Act.” 17. Reference can be made to the judgment rendered by the Apex Court in the case of Union Bank of India and Others vs. C.G. Ajay Babu and Another, (2018) 9 SCC 529 wherein Rule 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 has been explained. Para 17 to 19 of the said judgment are quoted herein-below: “17. Reference can be made to the judgment rendered by the Apex Court in the case of Union Bank of India and Others vs. C.G. Ajay Babu and Another, (2018) 9 SCC 529 wherein Rule 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 has been explained. Para 17 to 19 of the said judgment are quoted herein-below: “17. Though the learned Counsel for the appellant-Bank has contended that the conduct of the respondent-employee, which leads to the framing of charges in the departmental proceedings involves moral turpitude, we are afraid the contention cannot be appreciated. It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law. It is not for the Bank to decide whether an offence has been committed. It is for the court. Apart from the disciplinary proceedings initiated by the appellant-Bank, the Bank has not set the criminal law in motion either by registering an FIR or by filing a criminal complaint so as to establish that the misconduct leading to dismissal is an offence involving moral turpitude. Under sub-Section (6)(b)(ii) of the Act, forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a court of competent jurisdiction. 18. In Jaswant Singh Gill vs. Bharat Coking Coal Limited and Others, it has been held by this Court that forfeiture of gratuity either wholly or partially is permissible under sub-Section (6)(b)(ii) only in the event that the termination is on account of riotous or disorderly conduct or any other act of violence or on account of an act constituting an offence involving moral turpitude when he is convicted. To quote paragraph-13: (SCC p. 670) “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. 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. Clause (a) of sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, wilful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent 1 was more than the amount of gratuity payable to the appellant. Clause (b) of sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Conditions laid down therein are also not satisfied.” 19. In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20.04.2004 that the “misconduct proved against you amounts to acts involving moral turpitude.” At the risk of redundancy, we may state that the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law.” 18. Thus, the judicial pronouncement interpreting Section 4(6) of Payment of Gratuity Act, 1972 is clear that in the case of pendency of a criminal case, the employer has a right to withhold the gratuity amount by giving undertaking under Section 7 of the Payment of Gratuity Act, 1972 that if the employee gets acquittal, the gratuity amount alongwith interest will be paid as contemplated by the Act itself. 19. In the present case, the petitioner has been convicted by the CBI Court for an offence which involves moral turpitude and thus it has rightly been held by the Appellate Authority that petitioner is not entitled for any gratuity and amount of gratuity stands forfeited. 20. In view of above discussion, this Court finds no infirmity in the impugned order dated 18.10.2016 passed by the Appellate Authority. Accordingly, the present writ petition stands dismissed. 21. However, liberty is reserved with the petitioner to approach the Authority under the Payment of Gratuity, Act 1947, if he is acquitted from the criminal charges.