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SCA/9216/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9216 of 2008
======================================
AHMEDABAD
MUNICIPAL TRANSPORT SERVICE THRO TRANSPORT - Petitioner(s)
Versus
PURSHOTTAMBHAI
BIMABHAI PATADIA & 2 - Respondent(s)
======================================
Appearance :
MR
HS MUNSHAW for Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 14/07/2008
ORAL
ORDER
1.
By this petition, the petitioner Ahmedabad Municipal Transport
Service has challenged the order dated 31.7.2007 passed by the
Controlling Authority as well as the order dated 7.3.2008 passed by
the Appellate Authority under the provisions of Payment of Gratuity
Act, 1972.
2.
The opponent was since 16.10.1981, working as daily wage driver with
appellant and was regularized in service w.e.f. 1.1.1986. On or
around 3.12.2002, he was served with a charge-sheet for alleged
misconduct of remaining absent for about 243 days. Then, after
departmental inquiry, the opponent was dismissed from service w.e.f.
20.9.2003. The appellant did not pay any amount towards gratuity to
the respondent. Thus, the respondent preferred Application No.23 of
2007 before the competent Authority, which was opposed by the the
appellant on the ground that in view of Section 4 (6) (b) (1) the
applicant i.e. present opponent was not entitled for the benefits of
gratuity. The said defence was rejected by the Authority and the
application was allowed. The Controlling Authority by order dated
31.7.2007 directed the petitioner to make payment of Rs.75,685/- and
also directed payment of interest @ 7.5%. The said order was
challenged by present petitioner before the Appellate Authority
constituted under the Act. The appeal also failed and the Appellate
Authority dismissed the appeal by order dated 7.3.2008 and confirmed
the order of the Controlling Authority. Aggrieved by the said two
orders, the petitioner has preferred present petition.
3.
Mr. Munshaw, learned advocate appears for the petitioner. He
submitted that the Authorities have passed impugned orders without
appreciating the scope of Section 4(6) (b)(1) of the Payment of
Gratuity Act, 1972. He submitted that the respondent was terminated
pursuant to the chargesheet dated 3.12.2002 and that therefore, the
Corporation was justified in forfeiting the gratuity.
4.
The approach of the petitioner towards the subject matter of the
petition of the petition and the contentions raised against the
impugned order, are devoid of merits. The provision under Section 4
(6) (b)(1) of the Act does not justify or support either petitioner’s
action of forfeiting or withholding the gratuity or the challenge
against the order. The reliance on Section 4 (6) (b) (1) is
misplaced. The appellant has rightly not invoked and relied on the
sub-clause (a) of Sub-section (6) of Section 4 inasmuch as under said
provision, the gratuity cannot be withheld or forfieted unless the
misconduct – for which the service of the employee is terminated ?
has resulted into loss or destruction to employer’s property and in
such event also gratuity amount only to the extent of loss or damage
can be forfeited and not more. In present case, the respondent was
dismissed on account of alleged absentism and that therefore, Section
4 (6)(a) has no applicability or relevance. Section 4 (6) (b) (1)
also, in view of this Court, does not rescue the appellant’s action.
As per Section 4 (6) (b)(1) the employer can partially or wholly
forfeit the gratuity only if service is terminated for riotous or
disorderly conduct or any other act of violence. By any stretch of
imagination or any rule of interpretation, the termination of service
on ground of absentism would hardly fall within the folds of ?Sriotous
or disorderly conduct or act of violence??. The alleged misconduct
would also not amount to ?Soffence involving moral turpitude??,
hence, provisions under Section 4(6)(b)(ii) also has to be ruled out.
Consequently, the petitioner’s action of withholding on forfeiting
entire gratuity amount of opponent is not authorised by law and it
does not get protection of Section 4 (6)(b)(i) or 4 (6)(b)(ii).
5.
Despite this, the petitioner – employer acted arbitrarily and
without passing any order of forfeiting gratuity, withheld the amount
towards the gratuity. The said illegal and arbitrariness action of
the petitioner compelled the respondent to approach the Controlling
Authority, who after considering the facts and circumstances and
after hearing the petitioner herein, passed an order and directing
the petitioner to pay Rs.75,685/- towards the gratuity to the
respondent along with interest @ 7.5% with effect from 1.10.2003. The
controlling authority was right and justified in allowing the
application. Unfortunately, even after the said order, the
petitioner did not release the gratuity amount. The petitioner
insisted upon its decision of not making payment and the respondent
was unnecssary dragged to the Appellate Forum by preferring appeal
against the said order dated 31.7.2007. The Appellate Authority
passed an order dated 7.3.2008 and rejected the appeal preferred by
the petitioner. Both the Authorities have rightly held that the
action of the petitioner was illegal and therefore, directed the
appellate to pay the amount towards gratuity to the respondent. There
is no error or illegality in the impugned orders. On the contrary,
the petitioner has acted arbitrarily and has wrongly withheld the
amount of gratuity by not paying the same immediately after
termination w.e.f. 20.8.2003.
6.
In view of the fact that the respondent workman has been
unnecessarily and only because of arbitrary attitude of the
petitioner, dragged in the litigation before the Controlling
Authority, Appellate Authority and High Court, this Court was
inclined to impose cost for unnecessarily prosecuting this petition.
However, Mr. Munshaw, learned advocate appearing on behalf of the
petitioner stated, at bar, that he would instruct, in writing, the
petitioner not to withhold gratuity without strictly following well
settled position as regard the forfeiture of gratuity. Considering
the said assurance from the learned advocate, this time the Court
refrains from passing any order for costs. It is, however, with a
caution to the petitioner that if such action is repeated, it would
invite order for exemplary costs.
(K.M.THAKER,
J.)
ynvyas
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