JUDGMENT
M.F. Saldanha, J.
1. These two petitions involved a common point of law and have therefore been heard together and have been disposed of through a common order. The brief facts that have given rise to the dispute are that the two petitioners were office-bearers of the Usha Martin Industries union. The first petitioner has passed away since the filing of the petition but that does not make much difference because the issue centres around the question as to whether the respondent-company was justified in passing an order for the withholding of the payment of the gratuity payable to the two petitioners. I am confining this order strictly to the short question as to whether the withholding or non-payment of the gratuity was justified within the framework of the Payment of Gratuity Act, 1972, and it is made clear that the observations made in this order shall not have any bearing in other proceedings. The reason for this is because I find from the record that the company had passed an order dismissing the two petitioners from service and the withholding of the gratuity was an incidental and separate order and in the event that any proceedings may be ending in relation to the order of dismissal, it is made clear that this order will have no bearing on those proceedings.
2. It was alleged that on March 7, 1997 the first petitioner reported for duty in the night shift even though he did not belong to that shift and when he was told that he could not be allowed to work he is alleged to have not only got into an argument with the company’s officers but furthermore, it is alleged that the two petitioners had succeeded in getting all the remaining employees to leave their work stations and resort to what may be termed as a strike of sorts. The company ultimately charge sheeted the two employees and took disciplinary proceedings against them but we are here concerned with the other branch of action that was taken under the Payment of Gratuity Act whereby the company passed an order after issuing requisite show-cause notice to the employees that their gratuity was liable to be withheld by virtue of the provisions of Section 4(6) of the Payment of Gratuity Act, 1972. The Controlling Authority and Assistant Labour Commissioner under the Payment of Gratuity Act, 1972, by order dated November 15, 1999, upheld the claim to gratuity of the petitioners and quantified the amount in question which the company ultimately deposited with the authority. Being aggrieved by the decision however, the company filed an appeal and the appellate authority upheld the company’s contention that the provisions of Section 4(6) would apply to the present case and therefore set aside the earlier order and it is against the order of the appellate authority, dated April 28, 2000, that the petitioners have approached this Court.
3. This case effectively involves a pure point of law and the petitioner’s learned advocate has relied on the following three decisions in support of his contention that the provisions of Section 4(b) would be inapplicable to the record of the present case:
(1) 1987 (1) LLN 308.
(2) 1992 LIC 1335 (Brundaban Sahu v. Orissa State Road Transport Corporation Ltd.)
4. Essentially, the Courts in these decisions have taken the view that the gravity of misconduct must be very gross or more importantly that the withholding of gratuity would be in the nature of additional punishment in cases where monetary loss has been caused by the employee and it is necessary to off-set that loss. The petitioners learned counsel has relied heavily on the provisions of Sections 4(6)(a) and 4(6)(b) which reads as follows:
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) –
(ii) 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
(i) 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.
In essence, he has pointed out that Sub-clause (a) of the Section would be attracted only in a case where damage or loss or destruction is caused to property belonging to the employer in order to forfeit that part of the gratuity that is equivalent to the loss of property that is involved. His submission is that the facts of the present case do not allege that the petitioners have caused any property loss and to this extent, the argument does seem to be justified because a careful examination of the imputation and the allegations levelled against the petitioners indicate that there was no charge against them that they had caused any property loss in that sense of the term. The learned counsel then submitted that Sub-clause (ii) of Clause (b) again confines itself to misconduct involving moral turpitude and allied offences and he again demonstrated that there is no such accusation against the petitioners and that therefore this provision will not apply. Lastly, on the question of whether Sub-clause (i) applies, his submission is that the law contemplates a behaviour that comes within the definition of riotous or disorderly conduct or an act of violence. He submits that even though the petitioners are alleged to have instigated an illegal strike that there is no accusation of their having indulged in any violence and that consequently, the entire case would have to stand or fall on the short question of whether what is alleged or what is proved against the petitioners constitutes riotous or disorderly behaviour.
5. The learned counsel who represents the company submitted that the petitioners had no business to insist on being allowed to work in a shift to which they did not belong and that they were politely informed by the company’s officials that they could not be accommodated in this shift but in a typical trade union fashion they defied instructions given to them and that they went around the unit and got everyone of the employees to leave their work stations. His submission is that a careful perusal of the articles of charges would indicate that the petitioners did not merely persuade the workers to leave but that they virtually herded them out of the unit and such an act does constitute riotous and disorderly behaviour. He also submitted that defiance to lawful authorities which accompanied these actions would bring them within the definition of such behaviour and therefore the appellate authority has very rightly upheld the order passed by the company. He drew my attention to two decisions, the first Management of Tournamulla Estate v. Their Workmen , and the other one being a decision of the Division Bench of the Karnataka High Court Chandrana Bros. v. K. Venkata Rao 1976 (1) Kar LJ. 245. In the first of these decisions, the Supreme Court had upheld the forfeiture of gratuity and in the second of them the Division Bench of this Court had occasion to do an elaborate analysis of the situations in which responsible trade unionism is permissible and the limits within which trade union leaders are required to function and it has also drawn a thin line between the activity that passes the test of legitimate order and much of which it does not. The learned counsel submitted that the Payment of Gratuity Act does not require acts and offences that are serious enough to come within the definition of riot and disorder as understood in the criminal parlance and that any activity which tends to disrupt the smooth working of the company squarely come within the definition.
6. The short question is as to whether, on the material that is placed before the Court the withholding of the gratuity was justified. It is precisely for this reason that I have prefixed this judgment with the observation that what is pointed out herein will have no bearing on the other disciplinary proceedings or the extension thereof. I need to mention that the learned Government Advocate who normally would have represented the authority which is a formal authority but who has made his submissions as amicus curiae as I desired to hear him since he represents an independent authority, submitted mat the provisions of the Act have to be strictly construed and it was his contention that once it is established that the petitioners were responsible for the entire act of the workmen being made to leave the unit on that night that ipso facto it would have to be construed as disorderly behaviour even if it does not come within the strict definition of riotous behaviour. He emphasised the fact that the Section postulates either of the two and in this view of the matter he supported the impugned order.
7. I have already held that none of the other provisions of Section 4(6) would apply to the facts of the present case. On a scrutiny of the record, I find that the emphasis at all times, on the part of the company was directed towards pointing out that as a result of the petitioners having got the workers to leave the unit on that night that the production came to a stand still and that therefore the company did suffer loss of production. The allegation was not that there was any property loss. Had the company desired to take action on the lines of the evidence led by it which proceeded on the footing that the petitioners were responsible for loss of production, it would nave been necessary for them to have the loss quantified because this is condition precedent for the payment of gratuity in so far as once the loss is quantified it has then got to be apportioned to the individual employee because the gratuity can be withheld only to the extent of making up the loss occasioned by the workmen. Though I find some reference in the evidence to the fact that production loss had taken place the loss has neither been quantified nor apportioned and consequently, there is no question of any compensatory withdrawal of gratuity under this head. Again, I find that the company has adopted a dual approach in so far as even though the thrust of the allegations were on the loss of production aspect and evidence has been led in this behalf, the order proceeds effectively on the footing that the petitioners had indulged in disorderly behaviour. This to my mind is the error committed in so far as the evidence with regard to the latter is virtually nil as far as this proceeding is concerned. The contention raised basically was that where the record shows that all the employees left the unit on that night and that this was not only at the instigation but because of the fact that the petitioners virtually goaded them to do it, the argument is that the two petitioners who are responsible for this had indulged in disorderly behaviour. Obviously, what is contended is that one is to understand disorderliness as the opposite of orderly behaviour and if this is to be the standard, that the action of the company is justified. I am taking the charges levelled against the petitioners at their very highest for purposes of testing as to whether those acts come within the ambit of riotous or disorderly behaviour to justify the company’s action. The first of the two ingredients is again lacking here because it is nobody’s case that the workers either individually or collectively assembled and involved themselves in conduct that could be termed as riotous and we are therefore left, through a process of elimination with the last aspect namely the question as to whether it constitutes disorderly behaviour. To my mind, one needs to look at the broad definitions under different heads of law with regard to the concept of disorder. While the learned counsel who represents the company may be right in pointing out that there can be disorderly behaviour even in the absence of violence or riotousness, one needs to take note of the fact that disorderly behaviour involves necessarily an element of disorder or in other words, acts or activities which create a level of disorder and in relation to a unit of the present type had the workers been instigated by the petitioners to misbehave in the unit to destroy or damage the machinery or the furniture or to throw things around or to create a situation that would answer to the definition of disorder, then alone it would be permissible to bring the action within the four corners of the definition. Assuming taking advantage of their position that the petitioners got the employees or even forced the other employees to leave their work stations, there is nothing on record to indicate that there was any disorderly conduct on the part of anybody nor is there any evidence to this effect and consequently, to my mind the finding that the action is justified on the ground that the petitioners are guilty of disorderly behaviour cannot be sustained.
8. Having regard to the aforesaid situation, the impugned order will have to be set aside The order of the controlling authority is restored. The petition succeeds to this extent and stands disposed of. No order as to costs.
