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2020 DIGILAW 306 (JHR)

Lallan Prasad Singh v. Food Corporation of India

2020-02-14

S.N.PATHAK

body2020
JUDGMENT : 1. The petitioner has approached this Court for quashing the February, 2016 passed by Dy. Chief Labour Commissioner Controlling Authority under P.G. Act 1972 in PGA No.(54)/2015 (Annexure-4), whereby and where under an appeal so filed by the Area Manager, FCI, District Office against the order dated 16th June, 2015 of the Assistant Labour Commissioner (Central) Dhanbad in PG Application No. 36 (85) /2014 E-6 has been allowed and for a direction to pay the balance Gratuity amount to the petitioner with interest within stipulated period. 2. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed to the post of AG-III (D) in FCI and joined on 16.01.1978 and since then he was in continuous services till 31.07.2014 i.e. the date of his superannuation. During his service tenure i.e. more than 36 years, he got two promotions in recognition of his devoted service to the Corporation. It is specific case of the petitioner that when he was on the verge of retirement, a charge-sheet dated 28.09.2013 was issued against the petitioner for major misconduct for failure in maintaining absolute integrity /devotion to duty and alleged indulgence in high percentage of storage loses of RBGA and RBC. Immediately after receiving the charge memo, the petitioner refuted and denied the charges leveled against him, but without considering his explanation a joint perfunctory enquiry was held against the petitioner and others. Thereafter, the petitioner participated in the enquiry proceeding though it was not proper and fair and was conducted haphazardly without providing proper opportunity to defend his case. The enquiry proceeding was not concluded till his date of retirement i.e. 31.07.2014 rather it was concluded later on. Subsequently, vide order dated 31.12.2014, punishment of reduction to the initial pay in the time scale of pay to the post of AG-I (D) w.e.f. the date of retirement was passed and further order for forfeiture of gratuity was passed which amounts to double jeopardy. Aggrieved by the same, the petitioner had moved before CGIT, Dhanbad by filing Ref. No.4/2015, which is pending for adjudication. However, the petitioner was allowed to retire from his service without any condition and no order for forfeiture of his gratuity amount was ever issued to the petitioner at that time. It is further case of the petitioner that total gratuity amount of Rs.10,00,000/- was payable to the petitioner whereas Rs. No.4/2015, which is pending for adjudication. However, the petitioner was allowed to retire from his service without any condition and no order for forfeiture of his gratuity amount was ever issued to the petitioner at that time. It is further case of the petitioner that total gratuity amount of Rs.10,00,000/- was payable to the petitioner whereas Rs. 4,33,264/- has only been paid to him but that has been denied by the appellate order dated 02.02.2016, which is challenged herein. The petitioner is mainly aggrieved by the non-payment of full amount of gratuity as the same has been forfeited by the respondents and only an amount of Rs.433,264/- has been paid by taking his last drawn wages as Rs. 21,234/-. The petitioner challenged the same before the Assistant Labour Commissioner, Danbad as bearing Application No. 36 (85/2014 E-6 and same was allowed with a direction upon the respondents to pay the balance gratuity amount of Rs. 5,46,736/- within 30 days from the date of receipt of findings. Aggrieved by the same, the respondent-Management filed an Appeal before the Deputy Chief Labour Commissioner having No. PGA No. 54/2015 on the ground that since this petitioner had been imposed a penalty of reduction to the initial pay in the time scale of pay of the post of AG-1 (D) in a disciplinary proceeding against major charge-sheet in which he was found guilty by the disciplinary authority. Appellate Authority disagreed with the original order of the Assistant Labour Commissioner and allowed the appeal in favour of the respondent-Management. Aggrieved by the said order, the petitioner has been constrained to knock the door of this Court. 3. Mr. M. M. Pal, learned Sr. counsel assailing the impugned order submits that the appellate order dated 02.02.2016 is illegal as the same has been passed on extraneous circumstances and without application of mind. She further submits that the impugned order has been passed by totally ignoring the decisions cited there on as also without considering the fact the employer had failed to deposit the amount as per order passed by the Controlling Authority, which was precondition for filing of the appeal. Learned Sr. counsel further submits that the petitioner is entitled for his balance Gratuity amount in terms of the order dated 16.05.2015 passed by the Controlling Authority. Learned Sr. counsel further submits that the petitioner is entitled for his balance Gratuity amount in terms of the order dated 16.05.2015 passed by the Controlling Authority. She further submits that the petitioner was retired from the services on attaining the age of superannuation and there was no punishment on the date of his superannuation. Section 4 (6) of the Gratuity Act is very clear and same is not applicable in the instant case and as such, respondents have wrongly withheld /forfeited the balance amount of gratuity. She further argues that the impugned order has been passed on the basis of punishment of deduction of pay, which is passed on 31.12.2014 i.e. after the date of retirement and as such, punishment will not affect the entitlement of the petitioner of balance gratuity amount. Learned counsel for the petitioner places heavy reliance on the reported judgment of Hon’ble Apex Court in case of Jaswant Singh Gill Vs. Bharat Coking Coal Limited & Ors., reported in (2007) 1 SCC 663 . On such grounds, learned counsel for the petitioner submits that impugned order of Appellate Order is liable to be quashed and set aside and a direction be given upon the respondents to pay the balance gratuity amount to the petitioner as per Order of Controlling Authority. 4. On the other hand, counter-affidavit has been filed. Mr. Nipun Bakshi, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner has not been deprived of gratuity benefit rather during the pendency of the enquiry proceedings, the petitioner was not allowed to superannuate and had been merely relieved from service. The gratuity payable after conclusion of proceedings has been calculated and paid to the petitioner. The petitioner was found guilty of charges and a major penalty of reduction to the initial pay in the time scale of pay of the post of Assistant General –I (Depot) was inflicted and made effective from the date of his retirement and as such, after imposition of penalty, the amount of gratuity had been calculated and disbursed to the petitioner. The petitioner had reached the age of superannuation on 31.07.2014, but he was not superannuated from service whereas he had been only relieved vide office order dated 30.07.2014. The petitioner had reached the age of superannuation on 31.07.2014, but he was not superannuated from service whereas he had been only relieved vide office order dated 30.07.2014. The petitioner has completely misconstrued the provisions of Payment of Gratuity Act and his claim for payment of maximum gratuity of Rs.10 lacs is contrary to the provisions of Section 4 (6) of the Payment of Gratuity Act, 1972 and as such, the allegation of forfeiture is ex facie erroneous as there has been no forfeiture of gratuity amount. Learned counsel further argues that order passed by the Appellate Authority is proper and speaking order and effect of Regulation 60 A has been entirely overlooked by the Controlling Authority under the Payment of Gratuity Act. He further submits that as per Regulation 60 A of the Food Corporation of India (Staff) Regulation, 1971, any disciplinary proceeding, if instituted while the employee was in service shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee continued in service. Learned counsel lastly argues that petitioner is not entitled for the balance gratuity amount and there is no illegality or infirmity in the order of Appellate Authority. 5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no case is made out for interference on the following grounds:- 1. The petitioner was only relieved from the service and had never been allowed to superannuate on attaining the age of 60 years. 2. The Controlling Authority has overlooked the provisions of Regulation 60 A of the Food Corporation of India (Staff) Regulation Act, 1971 while passing the impugned order and there is no illegality or infirmity in the order of Appellate Authority, who set aside the order of Controlling Authority. Section 60 A of the said Act reads as under:- 60-A- Procedure for disciplinary proceedings after retirement :- (i) Any disciplinary proceeding, if instituted by issue of charge sheet while the employee was in service, whether before his retirement or during his re-employment, shall, after the retirement of the employee, be continued and concluded by the authority by which it was commenced, in the same manner, as if the employee had continued in service. (ii) Such proceeding after retirement should be completed expeditiously and within twelve months from the date of delivery of charge sheet to the charged official, subject to Court Orders, if any. (iii) During the pendency of the disciplinary proceedings, the disciplinary authority may withhold payment of gratuity for ordering the recovery from gratuity of the whole or part of any pecuniary loss caused to the Corporation, if the employee is found in a disciplinary proceedings or judicial proceedings to have been guilty of offence or misconduct as mentioned in the relevant Sections of the Payment of the Gratuity Act, 1972 (39 of 1972) or to have caused pecuniary loss to the Corporation by misconduct or negligence during his service, including service rendered on deputation or on re-employment after retirement, provided that the provisions of relevant Sections of the Payment of Gratuity Act, 1972 shall be kept in view in the event of delayed payment, in case, the employee is fully exonerated.” As per the aforesaid Rule, the Disciplinary Authority was empowered to withheld the payment of gratuity or to pass order of recovery from gratuity whole of pecuniary loss made to the Corporation, if employee is found in disciplinary proceeding or judicial proceeding to have been guilty of an offence or misconduct. In the instant case, the petitioner has been found guilty of misconduct and also for causing loss to the State Exchequer. 3. Further, the amount of Gratuity has not been forfeited rather it has been paid as per the entitlement of the petitioner and after adjusting the loss caused to the management in view of Clause-III of the Regulation 60 A. Since the employee was found to have caused huge financial loss to FCI against which a portion of gratuity has been adjusted. 4. The reliance of the learned counsel for the petitioner on the case of Jaswant Singh Gill (supra) is of no help to her as there is a specific provision of Regulation 60 A of the Food Corporation of India (Staffs) Regulation, 1972 and as such, order was passed for adjustment of gratuity amount in view of the punishment order as per the Regulation 60 A of the FCI. 5. This Court is in full agreement of the views expressed by the Appellate Authority and as such there is no illegality or infirmity in the impugned order. 6. 5. This Court is in full agreement of the views expressed by the Appellate Authority and as such there is no illegality or infirmity in the impugned order. 6. As a cumulative effect of the aforesaid observation, rules, guidelines and judicial pronouncement, I do not find any merit in the instant case. Accordingly, writ petition stands dismissed.