IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (L) No. 1156 of 2003
With
W.P. (C) No. 592 of 2003
Central Coalfields Limited............. Petitioner.(In both the cases)
Versus
1. The Assistant Labour Commissioner (Central) & Ors... Respondent (In WPL No. 1156/03)
2. The Regional Labour Commissioner (Central)
& Ors ...... Respondents (In WPC No.592/03)
......
Coram: The Hon'ble Mr. Justice Amareshwar Sahay
......
For the Petitioners : Mr. Ananda Sen, Advocate (In both cases)
For the State : Mr. J.C. to A.G.
For Private Respondents : Mr. B.V.Kumar, Advocate (In both cases)
......
10/11.11.2009
In view of the fact that the facts and question of law
involved in both the above two writ petitions are same and similar and,
as such, both the writ petitions have been taken up together and are
being disposed of by this common order.
The facts, which are common in both the writ petitions, are
that one Shankar Ram was employed with the Central Coalfields
Limited as Senior Dresser and was posted in Central Hospital. While he
was in service he was charge sheeted on account of commission of
certain misconduct in course of his employment. It was alleged against
him that after scrutiny of the service records and educational
certificates submitted by him it was found that he hand submitted fake
educational certificates and thereby he got his date of birth entered in
the service book as 04/09/1942 though as per the initial medical
examination his date of birth should have been 23/10/1934. It was
further alleged that by making use of fake education certificate he got
promotional benefit also. A domestic enquiry was held and when the
charges against him was established, the said Shankar Ram was
dismissed from service of the petitioner’s company w.e.f. 28/10/1996.
The said employee Shankar Ram subsequently died.
The respondent nos. 2 to 5 namely, Radha Krishn Prasad,
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Rajendra Prasad, Jugal Kishore Prasad and Asha Devi in W.P.L. No.
1156/2003 are the sons and daughter of late Shankar Ram. The
respondent no. 3 namely Smt. Sohini Devi in WPC No. 592/2003 is the
widow of late Shankar Ram. The heirs of late Shankar Ram, i.e. the
respondent nos. 2 to 5 in WPL No. 1156/2003 and respondent no. 3 in
WPC No. 592/2003, made application before the Assistant Labour
Commissioner (Central) making grievance that the amount of gratuity
of late Shankar Ram was not paid and withheld by the Central
Coalfields Limited which, they are entitled to receive. Accordingly,
prayer was made to direct the Central Coalfields Limited to pay their
legitimate dues towards gratuity.
After hearing the parties, by orders dated 17/11/2002, as
contained in Annexure-11 in WPL No. 1156/2003, the Assistant
Labour Commissioner, allowed the application filed by the private
respondents, i.e. the heirs of late Sahnkar Ram and held that the
respondent nos. 2 & 3 namely Radha Krishn Prasad and Rajendra
Prasad were entitled to get Rs. 7261/- each, whereas respondent nos. 4
and 5 namely Jugal Kishore Prasad and Asha Devi were entitled to get
Rs. 7260/- each under the provisions of Payment of Gratuity Act. By
order dated 30/04/2002 as contained in Annexure-11 in WPC No.
592/2003, the Assistant Labour Commissioner, Central, Hazaribagh
held that Respondent no. 3, i.e. the widow Smt. Sohini Devi was
entitled to get RS. 7261/- towards gratuity.
These two orders dated 17/11/2002 (in WPL No.
1156/2003) and 30/04/2002 (in WPC No. 592/2003), contained in
Annexure-11 in both the writ petitions, have been challenged in these
two writ petitions by the central coalfields limited.
Mr. Ananda Sen, learned counsel for the petitioner in both
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the writ petitions submitted that since the employee Shankar Ram was
dismissed from service on account of misconduct involving moral
turpitude and, therefore, the employer Central Coalfields Limited, i.e.
the petitioner had every right to withhold and forfeit the amount of
gratuity payable to the ex-employee Shankar Ram. He further
submitted that the amount of gratuity is payable to an employee either
on his termination of his employment by way of superannuation or his
retirement or resignation or on his death or disablement due to
accident or disease as prescribed under Section 4 sub section (1) of the
Payment of Gratuity Act, 1972. He further submitted that under
Section 4 (6) (b) (ii), the gratuity payable to an employee is liable to be
withheld and partially forfeited if the services of the said employee have
been terminated for any act which constitute an offence involving moral
turpitude provided that such offence is committed by him in course of
his employment.
There is no dispute of the fact that Late Shankar Ram was
dismissed from service on account of misconduct, i.e. an act which
constitutes offence involving moral turpitude.
Mr. Sen further submitted that the Assistant Labour
Commissioner by the impugned orders in both the writ petitions has
committed error in holding that the heirs of the deceased ex-employee
Shankar Ram are entitled to get the amount of gratuity. He has relied
on the decision of the Supreme Court in the case of “Y.P.Sarabhai-
versus-Union Bank of India & Another, reported in (2006) 5 SCC 377”
and a judgment of this Court in the case of “Indian Aluminium Co.
Ltd.-versus- Regional Labour Commissioner (Central), Dhanbad, passed
in CWJC No. 824/2000 (R) on 30th January 2003 and reported in 2003
(97) F.L.R. 587.”
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On the other hand, Mr. B.V.Kumar, learned counsel
appearing for the private respondents in both the case has submitted
that Section 4 (6) of the Payment of Gratuity Act provides that the
gratuity of an employee, whose services have been terminated for any
act, willful 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 caused and, therefore, for assessing
the damages or loss caused to the employer and, therefore, there
should have been an enquiry to determine the loss and damages but
that has not been done in the present case and the amount of gratuity
has wholly been forfeited illegally and, therefore the Assistant Labour
Commissioner has rightly passed the impugned order contained in
Annexure-11 in both the writ petitions.
After going through the judgment of the Single Bench of
this Court in the case of Indian Aluminium Co. Ltd.-versus- Regional
Labour Commissioner (Central), Dhanbad& Ors (supra), it appears that
the same plea was taken in that case also on behalf of the employee
that as per section 4 sub-section (6) of the Payment of Gratuity Act,
there is specific order of forfeiture of the amount of gratuity, but that
plea was rejected by this Court and it was held that the nature of
misconduct successfully proved, to be extremely serious, no separate
order of forfeiture of gratuity has been required to be passed. In the
case of “Y.P.Sarabhai-versus-Union Bank of India & Another, reported
in (2006) 5 SCC 377” (supra) the Supreme Court in paragraph 11 of the
judgment has held that a person dismissed from service is entitled to
get only the provident fund but no gratuity. However, Supreme Court
considering the facts of that case directed the employer to pay a lump
sum amount.
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In the present case, in view of the judgment of the Supreme
Court as well as of this Court noticed above, in my view, no amount of
gratuity is payable to the petitioners since the employee was dismissed
from service for the charge of misconduct involving moral turpitude.
However considering the fact that the employee served the Company for
more than 40 years and he is now no more and his widow, sons and
daughters are the claimants and, therefore, in my view, the ends of
justice would be met if a direction is made to the employer to pay a
lump sum amount to the respondent nos. 2 to 5 in W.P. (L) No.
1156/2003 and respondent no. 3 in W.P. (C) No. 592/2003.
Accordingly, the employer-petitioner is directed to pay an
amount of Rs. 10,000/- each to the respondent nos. 2 to 5 in W.P.(L)
No. 1156/2003 and Rs. 10,000/- to respondent no. 3 in W.P.C. No.
592/2003 within a period of four weeks from today.
With the aforesaid observations and directions, these two
writ petitions stand disposed of.
(Amareshwar Sahay, J)
Sharma-Mukund/-