- (1.) BY way of this petition under Articles 226 and 227 of the Constitution of India the petitioners have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order passed by respondent no. 2 -authority under the Payment of Gratuity Act (hereinafter referred to as 'the Act') dated 30/09/2005 as well as the order passed by respondent no. 3 -appellate authority under the Act dated 28/03/2006.
(2.) THE facts leading to the present Special Civil Application in nutshell are as under; 2.1. Respondent no. 1 herein was serving with the petitioner - Bank. Departmental Inquiry was initiated against him for taking loan from the petitioner -Bank, which he was not entitled to. On conclusion of the Departmental Inquiry, charge leveled against respondent no. 1 and the misconduct came to be proved and the disciplinary authority passed an order dated 24/02/2002 imposing punishment of removal of respondent no. 1 from service as well as forfeiture of gratuity under Section 4(6)(b)(ii) of the Act. It appears that being aggrieved and dissatisfied with the order passed by the disciplinary authority removing him from service as well as forfeiture of gratuity, respondent no. 1 preferred appeal before the appellate authority and vide order dated 25/01/2003 the appellate authority confirmed the order passed by the disciplinary authority. It appears that respondent no. 1 demanded the amount of gratuity, which was denied and, therefore, respondent no. 1 submitted Form I under the provisions of the Act and the Rules claiming gratuity from the petitioner -Bank. The petitioner -Bank submitted the reply in Form M stating that respondent no. 1 was not entitled to any gratuity and thereafter respondent no. 1 preferred an application before respondent no. 2 alongwith the delay condonation application staking the claim for gratuity. The petitioner -Bank filed its reply to the aforesaid application preferred by respondent no. 1. Thereafter respondent no. 2 passed the impugned order dated 30/09/2005 allowing the application in favour of the respondent no. 1 and directing the petitioner -Bank to pay the amount of gratuity due and payable to respondent no. 1. Being aggrieved and dissatisfied with the order passed by respondent no. 2 dated 30/09/2005 directing the petitioner to pay the amount of gratuity to respondent no. 1, the petitioner -Bank preferred appeal before the appellate authority -respondent no. 2, which was registered as Case No. AH/RLC/48(52)/2005 alongwith the stay application. As required and as a condition precedent for preferring an appeal, the petitioner -Bank deposited an amount of Rs.3,99,579/ - with the appellate authority and thereafter vide impugned order dated 28/03/2006 the appellate authority has rejected the said appeal. Hence, the petitioners have preferred the present Special Civil Application.
(3.) THE learned advocate appearing on behalf of the petitioner -Bank has vehemently submitted that both the authorities below have materially erred in allowing the application submitted by respondent no. 1 under the Act and consequently directing the petitioner -Bank to pay the amount of gratuity to respondent no. 1. It is submitted that as such respondent no. 1 was held guilty for the misconduct of moral turpitude and, therefore, as such in exercise of powers under Section 4(6)(b)(ii) of the Act the entire amount of gratuity was rightly forfeited by the petitioner -Bank. It is submitted that as such the order passed by the disciplinary authority removing respondent no. 1 on the charge and misconduct proved, which was involving moral turpitude, had attained finality. It is submitted that therefore as such the petitioners were justified in forfeiting the entire amount of gratuity. Relying upon the decision of the Hon'ble Supreme Court in the case of Garment Cleaning Works, Bombay Vs. Workmen, 1962 AIR(SC) 673it is requested to allow the present petition. No other submissions have been made. The present petition is opposed by Shri Nachiketa Joshi, learned advocate appearing on behalf of respondent no. 1 as well as Shri D.P. Joshi, learned advocate appearing on behalf of respondents nos. 2 and 3. It is submitted by Shri Nachiketa Joshi, learned advocate appearing on behalf of respondent no. 1 that as such before passing the order of forfeiting the entire amount of gratuity in exercise of powers under Section 4(6)(b) (ii) of the Act, no opportunity was given to respondent no. 1. It is submitted that as such no show cause notice was issued upon respondent no. 1 calling upon him to show cause why the entire amount of gratuity should not be forfeited. It is submitted that therefore in absence of any show cause notice and/or hearing, when the entire amount of gratuity was forfeited, it was not open for the petitioners to forfeit the entire amount of gratuity and, therefore, both the authorities below have rightly directed the petitioners to pay the amount of gratuity to respondent no. 1. 4.1. It is submitted that in the facts and circumstances of the case, the petitioners have materially erred in considering the misconduct involving the moral turpitude. It is submitted that as such taking loan from the petitioner -Bank (though may not be permissible), which was fully repaid by respondent no. 1 with interest cannot be said to be involvement of moral turpitude. Relying upon the decision of the Hon'ble Supreme Court in the case of The Management of Tournamulla Estate Vs. Workmen, 1973 AIR(SC) 2344it is submitted that as held by Hon'ble Supreme Court in the said decision the amount of gratuity can be forfeited to the extent the loss/damage is sustained by the employer. It is submitted that as such in the present case, the entire amount of loan was repaid with interest and, therefore, as such there was no loss and/or damage sustained by the petitioners. It is submitted that therefore as such the order passed by the petitioners forfeiting the entire amount of gratuity would be too harsh. Making the above submissions, it is requested to dismiss the present petition.;