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2022 DIGILAW 48 (GUJ)

Harikrishna Jesingbhai Patel v. State of Gujarat

2022-01-10

A.S.SUPEHIA

body2022
JUDGMENT : A.S. Supehia, J. 1. In the present writ petition, the petitioners, inter alia, have prayed for the following relief:- "7(A) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent authorities and may be pleased to quash and set aside the action of the respondents in not paying/deducting the amount of Rs. 63,244/- of gratuity to the petitioner and further be pleased to direct the respondents to pay the entire amount of Rs. 63,244/- along with interest that this Honourable Court deems fit to award to the respondents." 2. By the order dated 01.11.2012, this Court had directed the respondent no. 3 to deposit the amount of Rs. 63,244/-. It appears that, pursuant to the aforesaid order, such amount has been deposited before the Registry of this Court on 26.12.2012. 3. Learned advocate Mr. Daxay Patel appearing for the petitioners has submitted that the petitioner, who retired on reaching the age of superannuation on 30.04.2007, was not paid the gratuity amount. It is submitted that out of the total gratuity amount of Rs. 2,37,220/-, the amount of Rs. 63,244/- was withheld without any explanation and straightaway the aforesaid amount is ordered to be deposited by the impugned notice dated 18.01.2010 within 7 days. He has submitted that because of some local fund objection, the Nagarpalika has issued such notice. It is submitted that the local fund office had raised the query in the year 2005 and 2006, however the same was not responded by the respondent-Nagarpalika till his retirement and the notice was issued in the year 2010 after the petitioner retired and by that date, such amount was withheld, which constrained the petitioner to file this writ petition. 4. Learned advocate Mr. Daxay Patel for the petitioners has submitted that no explanation is come forward by the respondent-Nagarpalika as to under which provisions of law, such notice has been issued withholding the gratuity amount. Thus, he has submitted that the impugned action of the respondents is required to be quashed and set aside. 5. Per contra, Mr. Tulshi Savani, learned advocate appearing for the respondent-Nagarpalika, has submitted that the impugned notice was issued on the petitioner in order to deposit the amount of Rs. Thus, he has submitted that the impugned action of the respondents is required to be quashed and set aside. 5. Per contra, Mr. Tulshi Savani, learned advocate appearing for the respondent-Nagarpalika, has submitted that the impugned notice was issued on the petitioner in order to deposit the amount of Rs. 63,244/-, which was paid in excess as per the audit objection raised in the year 2005, 2006 and 2007 and since the petitioner did not deposit the amount, the aforesaid amount was withheld. 6. On a specific query raised by this Court to the learned advocate Mr. Savani pointing out the provisions of law, which would empower the respondent-Nagarpalika to withhold the gratuity amount, he has submitted that no such provision has been referred to in the show cause notice dated 18.01.2010 and he is unable to point out any provisions, rules/regulations or any provisions of law, which empowers the respondent-Nagarpalika to withhold the gratuity amount after the retirement of the petitioner. 7. It is not in dispute that the petitioner retired from service after reaching the age of superannuation on 30.04.2007 and the notice has been issued after almost a period of 3 years on 18.01.2010 asking him to deposit the amount. No provision of law is pointed out with regard to forfeiture of the amount of gratuity. 8. As per the provisions of Section 4 of the Payment of Gratuity Act, 1972 (for short "the Act") more particularly sub-section (5) and subsection (6) of the Act, the amount of gratuity can be withheld in certain conditions, which are incorporated hereinbelow:- "4 Payment of gratuity. 8. As per the provisions of Section 4 of the Payment of Gratuity Act, 1972 (for short "the Act") more particularly sub-section (5) and subsection (6) of the Act, the amount of gratuity can be withheld in certain conditions, which are incorporated hereinbelow:- "4 Payment of gratuity. -- (5) Nothing in this section shall affect the right of an employee to receive better terms of gratuity under any award or agreement or contract with the employer (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." 9. A plain reading of Section 4 of sub-section (5) and sub-section (6) of the Act reveal that the amount of gratuity cannot be forfeited except the termination of an employee on willful omission or negligence, which causes any damage or loss or destruction of property belonging to the employer. 10. In the present case, no aspects are pointed out before this Court, which can empower the respondent-Nagarpalika to withhold such amount. Hence, the impugned action of the respondent-Nagarpalika deducting the amount of Rs. 63,244/- from the gratuity is hereby quashed and set aside. Registry is directed to pay the amount of Rs. 63,244/- with accrued interest to the petitioners (legal heirs of deceased petitioner-Harikrishna Patel) after proper verification. 11. The present petition is allowed. Rule is made absolute.