ORDER : 1. The petitioner has filed the instant writ petition under Article 226 of the Constitution of India challenging the order dated 1.8.2008 passed by Appellate Authority under Payment of Gratuity Act, 1972-cum-Regional Labour Commissioner (C), Raipur in Appeal No. PGA-33/2006, whereby the appeal filed by the petitioner has been dismissed against the order dated 14.6.2004 passed by Assistant Labour Commissioner (Central), Raipur & Controlling Authority under Payment of Gratuity Act, 1972, by which the controlling authority has directed the petitioner/Bharat Petroleum Corporation Limited to pay a sum of Rs. 3,50,000/- as gratuity alongwith simple interest @ 10% per annum to respondent No. 1. 2. Facts of the case, as projected by the petitioner, are that the petitioner is a Public Sector undertaking Company, which manufacturer, distributes, stores, supplies and market Petroleum products throughout India and having its Head Officer at Mumbai. The respondent No. 1 was initially appointed as a clerk in the petitioner-Company and subsequently he was promoted to the Management Cadre and he was working as Deputy Manager (Sales) Lubes, Raipur on 21.07.1986. During his employment at Shapur Basti and Raipur, respondent No. 1 remained unauthorized absent for a period of about 355 days i.e. from March, 2001, till April 2002. Thereafter, the petitioner/Company has charge-sheeted him on 23rd May, 2002 stating inter alia for commission of misconduct of unauthorized absent from work for the period from 1.3.2001 to 23.5.2002. In continuation with issuance of charge-sheet, the petitioner-Company initiated a departmental enquiry against respondent No. 1. During the course of said disciplinary proceedings, respondent No. 1 submitted his resignation dated 5.5.2003. The said resignation came to be accepted with effect from 4.6.2003 vide letter dated 2.6.2003 and he was relieved accordingly. In the letter accepting his resignation, the Competent Authority also directed to treat his absence for 355 days as mentioned in the charge-sheet for all terminal dues. The petitioner/Company has also stated in his letter of acceptance of resignation of respondent No. 1 from the services that the said resignation is subjected to adjustment of legal dues, the petitioner was entitled to adjust the dues recoverable from respondent No. 1 against the gratuity payable to him. Apart from this, the respondent No. 1 had also taken vehicle loan amounting to Rs.2,36,613.76/- and applicable interest thereon was also recoverable against the gratuity. The petitioner/Company stated that in all an amount of Rs. Apart from this, the respondent No. 1 had also taken vehicle loan amounting to Rs.2,36,613.76/- and applicable interest thereon was also recoverable against the gratuity. The petitioner/Company stated that in all an amount of Rs. 6,10,316.23/- was recoverable from respondent No. 1 at the time of acceptance of his resignation. It has been further contended that as per the Payment of Gratuity Act, 1972, the respondent No. 1 was entitled to get an amount of Rs.3,37,668/- as gratuity, after adjusting the amount recoverable from him, he was liable to pay balance amount to the petitioner-Corporation. It has also been stated that resignation of respondent No. 1 shall come into force only when the adjustment of the said dues recoverable from respondent No. 1 will be done. The petitioner/Company has also filed a Summary Suit No. 2527 of 2005 before the High Court of Judicature at Bombay for recovery of the aforesaid amount from respondent No. 1, which is pending consideration, therefore, the gratuity amount has been adjusted, as such, no gratuity is payable to respondent No. 1. 3. Due to inaction of the petitioner in releasing the gratuity, respondent No. 1 filed an application before the learned Controlling Authority-cum-Assistant Labour Commission (Central), Raipur on 8.12.2003 claiming gratuity to the tune of Rs. 3,50,000/- with interest. The petitioner/Company vehemently opposes the said application by filing reply. 4. Learned Controlling Authority, after appreciating the submissions made by counsel for the parties, vide its order dated 14th June, 2004 held that petitioner-Company is liable to pay an amount of Rs.3,50,000/- to the respondent No. 1 by way of gratuity along with simple interest at 10% per annum from the date of gratuity till it is actually paid. 5. Petitioner has preferred an appeal against the order dated 14th June, 2004 before the Appellate Authority under Section 7(7) of the Payment of Gratuity Act, 1972 and Regional Labour Commissioner, Raipur. The Appellate Authority, vide its impugned order dated 01.08.2008, dismissed the appeal by affirming the order of Controlling Authority holding that according to the provisions contained in Payment of Gratuity Act, 1972, no employer can acquire such right even with the consent of employee. Thus, the Controlling Authority has rightly held that the Appellant employer cannot deduct any amount from gratuity due to the respondent employee under the Payment of Gratuity Act, 1972. 6. Thus, the Controlling Authority has rightly held that the Appellant employer cannot deduct any amount from gratuity due to the respondent employee under the Payment of Gratuity Act, 1972. 6. Being aggrieved and dissatisfied with the order of Appellate Authority under Section 7(7) of the Payment of Gratuity Act, 1972, the petitioner has preferred the instant petition under Article 226 of the Constitution of India challenging the same. 7. This Court vide order dated 23.10.2008 directed that the amount deposited by the petitioner towards gratuity, payable to respondent No. 1/employee, shall not be disbursed to the respondent No. 1/employee till the next date of hearing. The said interim order is still continuing. 8. Learned counsel for the petitioner would submit that the impugned order passed by the Appellate Authority is against the provisions of law as the employer can very well recover the amount from gratuity. He would further submit that in the resignation acceptance letter dated 02.06.2003 (Annexure P/3), it has been specifically mentioned that as per the rules of the corporation, respondent No. 1 is required to pay back to the corporation, the outstanding amount, if any before releasing that as respondent No. 1 occupying the company accommodation, as such, the same has to be vacated. He would further submit that Rs. 6,10,316.23 is recoverable from respondent No. 1, therefore, the gratuity has not been released. The controlling authority and the appellate authority have not considered this aspect of the matter, therefore, the impugned order deserves to be quashed by this Court. 9. On the other hand, learned counsel for respondent No. 1/employee would submit that order passed by the Assistant Labour Commissioner, Raipur & Controlling Authority, as affirmed by the Appellate Authority under the Payment of Gratuity Act, 1972 directing the petitioner/Company to pay an amount of Rs.3,50,000/- as gratuity along with simple interest @ 10% per annum is well founded, which does not call for any interference in the instant writ petition. He further submits that even in the letter of acceptance of the resignation of respondent No. 1/employee, there is no mention about treating the absence of 355 days as absence for all terminal dues. He further submits that petitioner has never served any notice to respondent No. 1/employee for his unauthorized absence from the duties. He further submits that even in the letter of acceptance of the resignation of respondent No. 1/employee, there is no mention about treating the absence of 355 days as absence for all terminal dues. He further submits that petitioner has never served any notice to respondent No. 1/employee for his unauthorized absence from the duties. Even for his unauthorized absence for the aforesaid period, even no show-cause notice has been served upon respondent No. 1. It has also been stated that resignation was accepted without conducting or proceeding with the departmental enquiry, as there was no evidence and material with the petitioner-Company to prove the same. He also submits that no recovery can be made from the amount of gratuity in view of the provisions contained in Section 4(6) of Payment of Gratuity Act, 1972. He would also submit that in view of Rule N(1) of part-III of the Bharat Petroleum Corporation Management Staff Conduct, Discipline and Appeal Rules, 1976, the competent authority reserves the right not to accept the resignation of any management staff or not to permit the staff to retire on reaching the age of retirement, if circumstances so warrants, i.e. if disciplinary proceedings are pending against him/her or a decision has been taken by a competent authority to issue a charge sheet to him/her, as such, since the resignation of respondent No. 1/employee has been accepted unconditionally, no recovery of illegal dues can be made against him. He would further submit that the claim of the petitioner for recovery of Rs.6,10,316.23 is also misconceived, as no recovery can be made from the gratuity amount as per the Payment of Gratuity Act and, therefore, the order dated 14.6.2004 passed by Assistant Labour Commissioner, as affirmed by the Appellate Authority by order dated 01.08.2008 is just and proper, which does not call for any interference. 10. I have heard learned counsel appearing for the parties and perused the record of the court below. 11. The core issue involved in the case is “whether the recovery from the gratuity can be permissible when the employee’s resignation has been accepted, no termination from service has been taken place and no loss to the petitioner has been ascertained from any alleged act and omission of the petitioner? 12. 11. The core issue involved in the case is “whether the recovery from the gratuity can be permissible when the employee’s resignation has been accepted, no termination from service has been taken place and no loss to the petitioner has been ascertained from any alleged act and omission of the petitioner? 12. For better understanding of this point to be determined by this Court, it is expedient to quote Section 4(vi) of the Payment of Gratuity Act, 1972 (Henceforth “PG Act, 1972”), which is extracted below :- “Section 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.” 13. According to counsel for the petitioner, the order passed by the Controlling Authority, as affirmed by the Appellate Authority, is incorrect, as the provisions contained in Section 13 of the Act are not applicable to the facts of the present case as the petitioner can recover the balance amount which is payable by the respondent No. 1 after adjusting against the gratuity. He would further submit that Section 13 only bars Civil Court from attaching the gratuity in execution of any decree or order. Since in the present case, no attachment of gratuity is involved, as such, the petitioner can very well recover from the gratuity amount. Thus, the finding recorded by the Controlling Authority as well as affirmed by Appellate Authority are erroneous. He would further submit that recovery for excess amount does not tantamount to forfeiture of gratuity under Section 4(6) of Payment of Gratuity, Act, as such, the finding recorded by the Controlling Authority, as affirmed by the Appellate Authority is erroneous and deserves to be set aside. He would further submit that recovery for excess amount does not tantamount to forfeiture of gratuity under Section 4(6) of Payment of Gratuity, Act, as such, the finding recorded by the Controlling Authority, as affirmed by the Appellate Authority is erroneous and deserves to be set aside. He would further submit that there is difference of a forfeiture of gratuity and set-off of dues payable to respondent No. 1 and would pray the instant writ petition may kindly be allowed. 14. Per contra, learned counsel for respondent No. 1 would submit that the order passed by the Controlling Authority is legal and justified, which does not call for any interference. Section 4(6) of the Gratuity Act provides that under what contingency the gratuity can be withheld. Section 4(6) of the Gratuity Act provides that recovery can be made to the tune of loss ascertained by any act and omission committed by the employee, but in the present case no loss has been ascertained by the Corporation, therefore, in view of Section 4(6) of the PG Act, 1972 the recovery cannot be made. He would further submit that issuance of notice wherein the loss has caused to the Bank is clearly quantified and is a sine qua non for forfeiture of gratuity. In the case, the employee has not been terminated and before withholding of gratuity any action contemplated under Section 4 (6) of the Act has been complied with. He would further refer to Rule N(1) of part-III of the Bharat Petroleum Corporation Management Staff Conduct, Discipline and Appeal Rules, 1976, which reads as follows:- “the competent authority reserves the right not to accept the resignation of any management staff or not to permit the staff to retire on reaching the age of retirement, if circumstances so warrants, i.e. if disciplinary proceedings are pending against him/her or a decision has been taken by a competent authority to issue a charge sheet to him/her” 15. Since, the resignation has been accepted without any condition, the withholding of gratuity is clear cut violation of Section 4(6) of the Payment of Gratuity Act. The contention raised by learned counsel for the petitioner that recovery of the outstanding dues does not amount to forfeiture of the gratuity is not tenable, in view of the judgment passed by Hon'ble Supreme Court in case of Union Bank of India and others Vs. The contention raised by learned counsel for the petitioner that recovery of the outstanding dues does not amount to forfeiture of the gratuity is not tenable, in view of the judgment passed by Hon'ble Supreme Court in case of Union Bank of India and others Vs. C.G. Ajay Babu reported in (2018) 9 SCC 529 . The Hon'ble Supreme Court while examining the scheme of Section 4(6) sub-section (a) and subsection (b) has held as Under: “15. Under sub-Section (6)(a), also the gratuity can be forfeited to only to the extent of damage or loss caused to the Bank. In case, the termination of the employee is for any act or wilful omission or negligence causing any damage or loss to the employer or destruction of property belonging to the employer, the loss can be recovered from the gratuity by way of forfeiture. Whereas under sub-Clause (b) of sub-Section (6), the forfeiture of gratuity, either wholly or partially, is permissible under two situations– (i) in case the termination of an employee is on account of riotous or disorderly conduct or any other act of violence on his part, (ii) if the termination is for any act which constitutes an offence involving moral turpitude and the offence is committed by the employee in the course of his employment. Thus, sub-Clause (a) and sub-Clause (b) of sub-Section (6) of Section 4 of the Act operate in different fields and in different circumstances. Under sub-Clause (a), the forfeiture is to the extent of damage or loss caused on account of the misconduct of the employee whereas under sub-Clause (b), forfeiture is permissible either wholly or partially in totally different circumstances. Sub-Clause (b) operates either when the termination is on account of- (i) riotous or (ii) disorderly or (iii) any other act of violence on the part of the employee, and under Sub-Clause (ii) of sub-Section (6)(b) when the termination is on account any act which constitutes an offence involving moral turpitude committed during the course of employment. 16. ‘Offence’ is defined, under The General Clause Act, 1897, to mean “any act or omission made punishable by any law for the time being in force”. 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. 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 v. 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: “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 (2007) 1 SCC 663 Act contains a non obstante clause vis-à-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. As noticed hereinbefore, sub-section (6) of Section 4 of the (2007) 1 SCC 663 Act contains a non obstante clause vis-à-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.” 16. Reverting back to the facts of the present case in the light of the aforesaid provisions of law and afore-cited judgments of the Supreme Court, it is quite vivid that as per Section 4(6) of the PG Act, 1972, forfeiture of the gratuity of employee is permissible when employee is terminated and notice for forfeiture to the loss caused on any act or omission, has been issued to the employee concerned, then only the above Section of the Gratuity Act is applicable. In the present case, the employee/respondent No. 1 has not been terminated from the services but he resigned from his service, which is evident from (Annexure P-3) and the resignation is given effect from 04.06.2003, therefore it is a case of resignation, not a case of termination and the employer has to issue a notice before forfeiting the gratuity. In the present case, the employee/respondent No. 1 has not been terminated from the services but he resigned from his service, which is evident from (Annexure P-3) and the resignation is given effect from 04.06.2003, therefore it is a case of resignation, not a case of termination and the employer has to issue a notice before forfeiting the gratuity. In absence of such procedure and the fact that the petitioner has not terminated respondent No. 1, the application of forfeiture of gratuity amount in the garb of adjustment of any alleged recovery is erroneous one, the learned Controlling Authority and the Appellate Authority has rightly passed the order, which is legal and justified and does not warrant any interference by this Court. 17. Accordingly, the writ petition, being devoid of any substance, is liable to be and is hereby dismissed. 18. Consequently, the interim order passed by this Court on 23.10.2008 stands vacated.