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SCA/3915/2008 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3915 of 2008
=========================================================
BABUBHAI
KASHIRAM RANA - Petitioner(s)
Versus
NAVIN
FLUORINE INDUSTRIES - Respondent(s)
=========================================================
Appearance
:
MR
DIPAK R DAVE for
Petitioner(s) : 1,
NANAVATI ASSOCIATES for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 07/10/2008
ORAL
ORDER
Hearned
learned Counsel for the parties.
The
petitioner under Article 227 of the Constitution of India is
challenging the order dated 30.11.2007 passed by the Appellate
Authority, under the Payment of Gratuity Act, 1972 rejecting the
Appeal No. 50 of 2007 filed by the petitioner challenging the order
of Controlling Authority dated 24.04.2007 rejecting the application
of the petitioner for gratuity from the respondent.
The
facts in brief, deserves to be set out in detail.
The
petitioner was dismissed from service vide order dated 18.03.1999 on
account of his various misconducts including that of
misappropriation of amount of Rs. 7,64,487/- as mentioned in the
dismissal order. The said order was subject-matter of industrial
disputes and the Labour Court, Surat decided the same in Reference
No. 811 of 1999 holding that the order of dismissal was not legal as
the mandatory provisions of Section 33(2)(B) of Industrial Disputes
Act, 1947 (hereinafter referred to as the I.D. Act) had not been
complied with. However, the Labour Court while coming to the
conclusion with regard to the legality of the order of dismissal
impugned before it, also come to the conclusion and recorded its
findings with regard to the loss of confidence on the part of the
employer as the employee was found to be indulging in
misappropriation and thought it fit to award lumpsum compensation in
lieu of reinstatement. In other words, the prayer for reinstatement
with full back-wages had not been granted by the Labour Court in its
award dated 14.10.2004. It deserves to be recorded that both the
sides i.e. petitioner as well as respondent employer have accepted
this award and no challenge is lying therefrom to any other forums.
The
workman demanded gratuity as his dismissal order was found to be
illegal and he approached the Controlling Authority under the
Payment of Gratuity Act, 1972 with an Application No. 124 of 2006
which came to be rejected by the Controlling Authority vide order
dated 24.04.2007 as
stated here-in-above.
Being
aggrieved by and dissatisfied with the said order dated 24.04.2007
petitioner preferred appeal before the Appellate Authority under the
Payment of Gratuity Act,1972 being Appeal No.50 of 2007 which also
came to be dismissed, by the Appellate Authority on account of
findings recorded by the Labour Court. Being aggrieved by and
dissatisfied with those orders the present petitioner has filed
present petition under Section 227 of the Constitution of India.
Shri
Dipak R. Dave, learned Advocate appearing for the petitioner has
vehemently contended that the order of dismissal having been set
aside the operation of Payment of Gratuity Act, 1972 in its force
would come into play and as per the provisions of Section 4(6) it
was a duty cast upon the concerned authority to adjudicate upon the
quantum of damage those alleged to have been caused on account of
misconduct warranting his termination. In the instant case, the
termination has been set aside by the Court and therefore, it would
not be open to the respondent to forfeit his gratuity amount U/s.
4(6)(b) as the same have no applicability in light of the judgement
of the Labour Court. Shri Dipak R. Dave submitted that the gratuity
and its payment under the Payment of Gratuity Act, 1972 has been
crystallized to be a statutory right cannot be brushed aside by any
authority. In the instant case, without the charge-sheet being given
and without holding an inquiry, the order of dismissal was passed,
wherein the gratuity amount was forfeited. When straightaway order
of dismissal and forfeiture of gratuity was passed without holding
an inquiry, a duty was cast upon the employer to afford full
opportunity to the employee in the inquiry before effecting any
forfeiture of gratuity. Admittedly, in this case, there was no
inquiry and therefore, when the order of dismissal has been held to
be illegal, the restrictions for releasing gratuity is removed by
the Labour Court and therefore it would not be open to the employer
to deny the same. This aspect has not been taken into consideration
by the Controlling Authority as well as the Appellate Authority and
therefore, to that extent, the orders impugned, deserves to be
quashed and set aside and the respondent deserves to be directed to
pay gratuity amount to the petitioner. Shri Dipak R. Dave relying
upon the decision of this Court in case of Gujarat State Fertilizers
Chemicals Ltd. V/s. Surendra Amin reported in 2004 (3) GLH page 752
submitted that no amount of gratuity could be withheld or deducted
without following the provision as mentioned in sub-section (6) of
Section 4 of the Payment of Gratuity Act,1972.
Shri
Dipak R. Dave in furtherance of his submission cited one more
authority in case of Baroda Traders Co-operative Bank Ltd. V/s.
Mahendrabhai B. Shah, reported in 2006(2) LLJ 500, and in case of
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. V/s. Shri Ram Gopal
Sharma and ors., reported in AIR 2002 SC 643 and in case of Balbir
Kaur and anr. V/s. Steel Authority of India Ltd. and Ors., reported
in (2000)6 SCC 4923 and contended that the Payment of Gratuity is a
beneficial legislation deserving to be viewed in a proper
perspective and when the Labour Court which is competent court to
decide and adjudicate upon the dispute has held that the order of
dismissal was absolutely illegal, it was not open to the respondent
to deny the gratuity to the petitioner by the Controlling Authority
as well as the Appellate Authority under the payment of Gratuity
Act,1972. They therefore committed error in the face of record
warranting interference by this court under Article 226 of the
Constitution of India.
Shri
K.K.Nanavati, learned Counsel for the respondent submitted that the
order of dismissal contains in unequivocal terms that the amount of
gratuity is also forfeited. The order itself was a subject matter of
scrutiny before the competent Court wherein both the sides had equal
opportunity of making submissions in furtherance of their respective
case. The terms of reference also go to show that it was a composite
challenge and therefore the entire order was under challenge before
the Labour Court. The findings of the Labour Court are based on the
aspect of loss of confidence and petitioners inability to establish
otherwise as recorded at page 20 of the Award would go to show that
under what circumstances the order of dismissal was held to be
illegal though the employee was not found fit to be reinstated. In
other words, the prayer for reinstatement had been negatived by the
Court solely based on the aspect of loss of confidence on account of
action of misappropriation. The workman has accepted the same
without any demur. He submitted that the order passed by the
Controlling Authority as well as the Appellate Authority suffered
from no infirmity so as to call for the interference under Article
227 of the Constitution of India and therefore matter deserves to be
dismissed in limine.
This
court is of the view that the term of reference deserves to be noted
which contains a specific dispute as to whether the petitioner
here-in-above the workman was entitled to be reinstated with all the
back-wages. In other words, the entire order of dismissal which
incorporated in itself the forfeiture of gratuity was a subject
matter of scrutiny before the competent forum. It also deserves to
be noted that both the sides have accepted the order and when the
order is accepted and there is no demur with regard to the findings
of the Labour Court, the Controlling Authority as well as the
Appellate authority were under the duty to take them into
consideration. In fact when the matter was quite at large before the
Labour Court and the parties were leading their evidences in support
of their respective cases,
it was absolutely open to the petitioner to lead evidence with
regard to the aspect of forfeiture which was incorporated and which
was part of the order impugned, before the Labour Court in the
reference in question. The Labour Court as could be seen from the
findings recorded and stated here-in-above was absolutely conscious
about not granting any other prayer including reinstatement etc. and
decided to award a composite amount of Rs. 3,50,000/- in lieu of
their reinstatement. This Court is unable to accept submission of
Shri Dipak R. Dave that the termination has not come into play in
fact what is set aside is the order of dismissal which was said to
have been passed without complying with the provisions of Section 33
of the I.D.Act,1947. But that in itself would not bring any factum
of employee to be continued in the service and he would be therefore
entitled to other benefits. In-fact there is a finding of the Labour
Court that this petitioner was not fit to be given a relief of
reinstatement and therefore, the relationship of employer and
employee came to an end right when he was dismissed and the entire
case was therefore, open before the Labour Court wherein after
hearing both the sides, Labour Court has come to the conclusion that
the employee did not deserve to be granted anything more than the
lump sum amount of Rs. 3,50,000/-. In light of these findings of the
Labour Court a question arise as to whether it was open to the
petitioner even to seek any relief under the Payment of Gratuity
Act, 1972. The answer would obviously to be ?SNO??. However
looking to the order passed by the Controlling Authority as well as
the Appellate Authority it cannot be said that they suffer from no
infirmity as such and therefore the petition which is filed under
Article 227 deserves to be dismissed. It goes without saying that
the judgement cited at par are absolutely in a different footing and
they have no reliance whatsoever to the facts of the present case
and Counsel for the petitioner could not point out any similarity
between the two establishing a proper nexus with the facts and
similarity to the case in question.
In
view of the aforesaid discussions, the petition deserves to be
dismissed and is hereby dismissed. Notice discharged. However there
would be no order as to costs.
Sd/-
(S.R.BRAHMBHATT,
J.)
Jyoti
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