ORDER : (PULLA KARTHIK, J.) Seeking to call for the records pertaining to the orders of Controlling Authority under the payment of Gratuity Act, 1972 and the Assistant Labour Commissioner (Central), Hyderabad, in P.G.Application No.48/169/2015-E3, dated 27.05.2016, as upheld by the Deputy Chief Labour (Central) Commissioner, Hyderabad, in Case No.PGA-6/2017, dated 20.07.2017, and quash the same, the present Writ Petition is filed. 2) For better understanding of the case facts, the parties are hereinafter referred to as they are arrayed before the Labour Court, only for the purpose of narration of case facts. 2.1) In the year 1979, the applicant was appointed as Artisan Grade-IV and after rendering 34 years of service, he was terminated as Technician on 14.12.2013 and his last drawn wage was Rs.59,407/- at the time of his leaving the respondent Organization. Further, while the applicant was working as Technician in the Township Administration Department of respondent Organization, the respondents have issued a charge memorandum dated 21.04.2011 vide Proceedings No.HY/TA/ DISCP/2011 framing six charges, for which, the applicant has submitted his explanation. However, without considering the same, an enquiry was conducted and basing on the enquiry report, the punishment of ‘dismissal from service’ was imposed on the petitioner. Further, the Appeal and Review Petition filed by the applicant on 28.12.2013 and 27.01.2014 before the Appellate Authority and Review Authority respectively were also dismissed. Thereafter, the respondents have issued the show cause notice vide Ref.No.HY:1858300:2014, dated 29.03.2014, to the applicant as per the provisions of Payment of Gratuity Act, 1972 (in short ‘Gratuity Act’), stating as to why the Gratuity payable to him cannot be forfeited keeping in view the quantum of loss caused to the property belonging to the petitioner. Duly withdrawing the said show cause notice dated 29.03.2014, the respondents have issued another show cause notice dated 07.10.2015, to which, the applicant has submitted his explanation on 17.10.2015. Thereafter, the respondent authorities have passed the order vide Ref.No.HY/TA/1858300/15, dated 30.12.2015, forfeiting the entire gratuity amount otherwise payable to the applicant. Challenging the same, the applicant has filed P.G. Application No.48/169/2015-E3 before respondent No.2 and vide order dated 27.05.2016, the said authority has allowed the application directing the respondents to pay Gratuity of Rs.10,00,000/- along with simple interest at 10% per annum w.e.f.24.08.2015. Challenging the same, the applicant has filed P.G. Application No.48/169/2015-E3 before respondent No.2 and vide order dated 27.05.2016, the said authority has allowed the application directing the respondents to pay Gratuity of Rs.10,00,000/- along with simple interest at 10% per annum w.e.f.24.08.2015. Challenging the same, the respondents have filed an appeal before respondent No.1 vide PGA No.6/2017 and vide order dated 20.07.2017, the same was disposed of partially upholding the order passed by respondent No.2, however, modifying the gratuity payable period and duly including the period of suspension of the applicant till the date of deposit of gratuity. Aggrieved by the same, the respondent authorities are before this Court. 3) Heard Sri Samson Babu, learned counsel for the petitioner- employer, learned Government Pleader for Labour appearing for respondents 1 and 2, and Sri Ch.Ramesh Babu, learned counsel for respondent No.3-employee. 4) Learned counsel for the petitioner has contended that both the authorities have grossly erred in holding that the act of moral turpitude cannot be attributed to the employee purporting to act under the provisions of Gratuity Act and grossly erred in ordering payment of gratuity to the employee pending adjudication of the case in I.D.No.54 of 2015 before the CGIT. It is further contended that the authorities under the Gratuity Act can pass orders against the Company once it is held by the competent Tribunal that the order of dismissal is bad in law. It is further submitted that both the authorities have misconstrued themselves and went on to decide as to whether the order of dismissal passed against the employee is legal or illegal, which is impermissible. It is further contended that the authorities are not empowered to decide the reasons for inflicting penalty of dismissal on an employee pursuant to the findings of the Enquiry Officer and that in any event the Appellate Authority grossly erred in calculating the payment of gratuity to the tune of Rs.12,18,907/- by taking into account the period of suspension of the employee for which he is not entitled to as per Clause 22(i)(v) of BHEL Standing Orders. Therefore, the appellate authority is grossly erred in calculating the gratuity amount by taking into consideration the period of suspension of the employee from 12.04.2011 to 14.12.2013, for which, he is not entitled to. Therefore, the appellate authority is grossly erred in calculating the gratuity amount by taking into consideration the period of suspension of the employee from 12.04.2011 to 14.12.2013, for which, he is not entitled to. Therefore, viewed from any angle, the order passed by the authorities are beyond the scope and jurisdiction of the authorities and powers conferred on them under the provisions of the Gratuity Act. 5) Per contra, the learned counsel for respondent No.3- applicant has contended that no complaint was lodged before the Police or any case was filed in Criminal Court against the applicant charging the offence of moral turpitude inasmuch as the same does not find place in the charge sheet. Further, respondent No.2- Controlling Authority is empowered under Section 3 of the Gratuity Act to determine the matter in dispute under Section 74 (c) of the Gratuity Act and similarly respondent No.1-Appellant Authority is vested with the power to decide the correctness of the order passed by the Controlling Authority under Section 7 (8) of the Gratuity Act. Therefore, both the authorities have decided the dispute for payment of gratuity payable to this respondent as per the provisions of Gratuity Act and the Rules made thereunder. The said adjudicatory orders of respondent Nos.1 and 2 cannot be termed as the decision on the order of dismissal, ceased by the Industrial Tribunal in I.D. No.54/2015. Equally, the Industrial Tribunal has no power to decide the dispute for payment of gratuity particularly the term moral turpitude is not defined under the Gratuity Act or ID Act and it is not the case of the employer that they charged the employee for the acts of moral turpitude either in the charge sheet or lodged any complaint before Police or Criminal Court. Therefore, both the authorities, on considering the material on record, have rightly passed the impugned orders directing the petitioner to pay gratuity amount to respondent No.3 and there are no merits in the Writ Petition and therefore prayed to dismiss the writ petition. 6) This Court has taken note of the submissions made by respective counsel and perused the record. 7) As can be seen from the record, admittedly, while respondent No.3 was working as Technician, he was dismissed from service vide proceedings Ref.No.HY/TA/1858300/DA/13, dated 14.12.2013. 6) This Court has taken note of the submissions made by respective counsel and perused the record. 7) As can be seen from the record, admittedly, while respondent No.3 was working as Technician, he was dismissed from service vide proceedings Ref.No.HY/TA/1858300/DA/13, dated 14.12.2013. Relevant portion of the said proceedings reads as under: “The above acts of Sri JRS Sarma which are detrimental to the interests of BHEL are grave in nature and constitute Major Misconduct under Sub-clauses (d), (zza), (zs) and (h) of the acts mentioned in Standing Order No.20 of BHEL. Considering the gravity of misconduct committed by delinquent employee Sri JRS Sarma, and all aggravating and extenuating circumstances of the management of BHEL has lost confidence on the delinquent employee, Sri JRS Sarma. The undersigned as Disciplinary Authority, therefore, order that the penalty of “Dismissal from service” is imposed on Shri J R S Sarma Staff No.1858300, Technician, Township Administration under the provisions of the Standing Orders of BHEL. The order of “Dismissal from Service” shall come into force with immediate effect.” 8) Thereafter, after a lapse of 2 years, the authorities have passed the order vide Ref.No.HY/TA/1858300/15, dated 30.12.2015, forfeiting the entire gratuity amount otherwise payable to the applicant. Further, respondent No.2, while passing the order, dated 27.05.2016, in P.G.Application No.48/169/2015-E3, gave a reasoned and categorical finding that the employer has failed to establish the element of moral turpitude on the part of the employee for issuing the order of gratuity forfeiture. Relevant portion of the findings of respondent No.2 are as under: “…it is clear that the Non-Applicant has not followed the established principles of natural justice while forfeiting the gratuity amount of the Applicant. No full fledged enquiry was conducted by the Non-Applicant to establish as to how the acts of misconduct committed by the Applicant and it is on record that Non-Applicant has issued the forfeiture order No.HY/TA/ 1858300/15, dated 30.12.2015, after a lapse of 02 years from the order dated 14.12.2013 of “Dismissal from Service” with immediate effect issued by the Disciplinary Authority. The forfeiture order dated 30.12.2015 rejecting the claim for payment of gratuity to Applicant passed by the Non-Applicant appears to be an afterthought action. The forfeiture order dated 30.12.2015 rejecting the claim for payment of gratuity to Applicant passed by the Non-Applicant appears to be an afterthought action. The Non-Applicant has not produced any document or evidence to explain the loss to the organization from the conduct of the Applicant and also not lodged police complaint against the Applicant for the offence involving moral turpitude if so committed by the Applicant. In view of the facts and circumstances explained above, forfeiture of gratuity amount of the Applicant by the Non-Applicant is not justified. The Applicant is entitled for gratuity amount.” 9) In view of the above findings, this Court is of the view that no interference is needed in the order passed by respondent No.2 ordering the petitioner to pay gratuity amount to respondent No.3. 10) In similar circumstances, the Hon’ble Supreme Court in Y.K. Singla v. Punjab National Bank , [ (2013) 3 SCC 472 ] , has held that the employee has to make a choice between the two for drawing the benefit of gratuity and the choice has a statutory protection under sub-section (5) of Section 4 of the Act. Relevant observations of the Hon’ble Supreme Court are as under: “23. Based on the conclusions drawn hereinabove, we shall endeavour to determine the present controversy. First and foremost, we have concluded on the basis of Section 4 of the Gratuity Act that an employee has the right to make a choice of being governed by some alternative provision/instrument other than the Gratuity Act, for drawing the benefit of gratuity. If an employee makes such a choice, he is provided with a statutory protection, namely, that the employee concerned would be entitled to receive better terms of gratuity under the said provision/instrument, in comparison to his entitlement under the Gratuity Act. This protection has been provided through Section 4(5) of the Gratuity Act.” 11) Similarly, in Union Bank of India v. C.G. Ajay Babu , [ (2018) 9 SCC 529 ] , the Hon’ble Supreme Court has held as under: 14. That there is a bipartite settlement in the appellant Bank is not in dispute. That the settlement provides for forfeiture only if there is a loss caused on account of misconduct leading to dismissal, is also not in dispute. That there is a bipartite settlement in the appellant Bank is not in dispute. That the settlement provides for forfeiture only if there is a loss caused on account of misconduct leading to dismissal, is also not in dispute. There is no case for the Bank that the misconduct of the respondent employee has caused any financial loss to the Bank, and therefore, forfeiture, taking recourse to sub-section (6) of Section 4 of the Act, cannot be resorted to. Thus, we are in respectful agreement with the view taken by the High Court that the respondent employee is entitled to the protection of the bipartite settlement. 15. Under sub-section (6)(a), also the gratuity can be forfeited 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 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, clause (a) and clause (b) of sub-section (6) of Section 4 of the Act operate in different fields and in different circumstances. Under clause (a), the forfeiture is to the extent of damage or loss caused on account of the misconduct of the employee whereas under clause (b), forfeiture is permissible either wholly or partially in totally different circumstances. 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 clause (ii) of sub-section (6)(b) when the termination is on account of any act which constitutes an offence involving moral turpitude committed during the course of employment. 16. “Offence” is defined, under the General Clauses Act, 1897, to mean “any act or omission made punishable by any law for the time being in force” [Section 3(38)]. 17. 16. “Offence” is defined, under the General Clauses Act, 1897, to mean “any act or omission made punishable by any law for the time being in force” [Section 3(38)]. 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 Ltd. [Jaswant Singh Gill v. Bharat Coking Coal Ltd., (2007) 1 SCC 663 : (2007) 1 SCC (L&S) 584], 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 para 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. As noticed hereinbefore, sub- section (6) of Section 4 of the Act contains a non obstante clause vis-à-vis sub-section (1) thereof. 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-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 damage 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.” 12) In view of the above settled proposition of law, this Court does not find any illegality in the order passed by the authorities below in holding that respondent No.3 is entitled for payment of gratuity amount. 13) Insofar as the quantum of gratuity is concerned, learned counsel for the petitioner while drawing the attention of this Court to clause 22(v) of BHEL Standing Orders for Workers has contended that the period of suspension of the employee cannot be considered as qualifying service. 14) For better adjudication, clause 22 (v) of BHEL Standing Orders for Workers is reproduced hereunder: “If on the conclusion of the enquiry or as the case may be, of the criminal proceedings, the workman has been found guilty of the charges framed against him and it is considered that an order of dismissal or suspension or fine or stoppage of annual increment or reduction in rank would meet the ends of justice, the Disciplinary Authority shall pass an order accordingly. Provided that when an order of dismissal is passed under this clause, the workman shall be deemed to have been absent from duty during the period of suspension and shall not be entitled to any remuneration for such period, and the subsistence allowance already paid to him shall not be recovered.” 15) From the above, it is clear that the suspension period cannot be considered as qualifying service. Hence, the suspension period has to be excluded from the ambit of the qualifying service. Therefore, the order passed by respondent No.1 needs to be interfered with in this regard. 16) Accordingly, the Writ Petition is disposed of modifying the order dated 20.07.2017 passed by respondent No.1 in PGA- 6/2017, to the extent of considering the period of suspension of respondent No.3 from 12.04.2011 to 14.12.2013 in determining the gratuity amount and holding that respondent No.3-employee is entitled for gratuity amount by excluding the suspension period from 12.04.2011 to 14.12.2013. Miscellaneous petitions pending, if any, shall stand closed. No costs.