R.S.GARG, J. - (1.) Heard learned counsel for the appellant.
(2.) The appellant being aggrieved by the judgment and order dated July 15, 2003 passed by the learned single Judge in Special Civil Application No. 8990 of 2003 is before this Court with a plea that as the criminal proceedings are pending consideration against the respondent workman, he would not be entitled to gratuity. It is further submitted that though the employee was allowed to retire from the services, but the departmental proceedings are going on and as such no order for payment for gratuity could be made in favour of the respondent workman in view of Section 4(6) of the Act. Placing reliance upon a judgment of the Supreme Court in the matter of Calcutta Insurance Ltd. v. Workmen, reported in AIR 1967 SC 1286 : 1967-II-LLJ-1, it was submitted that the gratuity would be a reward for good, efficient and faithful service rendered for a considerable period and there will be no justification for awarding the same when an employee has committed a misconduct.
(3.) Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 says that the gratuity of an employee shall be forfeited to the extent of damage or loss so caused if the services of such employee has been terminated for any act, wilful omission or negligence causing any damage or loss to or destruction of, property belonging to the employer. For application of this clause, the first submission should be that the services of the employee has been terminated for any act, wilful omission or negligence causing any damage or loss to or destruction of, property belonging to the employer. In the present case, the appellant does not say that for any such misconduct as provided in clause (a) of sub-section (6), the services have been terminated. So far as clause (b) of sub-section (6) is concerned, it provides that the gratuity payable to an employee may be wholly or partially forfeited 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 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, It is not the case of the appellant that the employee has been terminated for his riotous or disorderly conduct or any other act of violence or he has been terminated for an act which constitutes an offence involving moral turpitude. If the employee/workman was allowed to retire after completing about 38 years on reaching the age of superannuation, then the provisions contained in sub-section (6), of Section 4 would not apply. Before the learned single Judge, the fact was not disputed that the respondent workman was allowed to retire. Pendency of the criminal case or the departmental enquiry would not entitle the appellant Establishment to forfeit the gratuity either wholly or in part, if the employee has not been terminated under the provisions of sub-section (6) of Section 4 of the Act. So far as the judgment of the Supreme Court in the matter of Calcutta Insurance Ltd. (supra) is concerned, we must immediately observe that the reliance placed on the judgment is misconceived. In the said matter, considering the case where an employee voluntarily resigned and brought about termination of his service, the Apex Court made such observations. Present is not a case of that nature. In the present matter, the employee was allowed to retire on completion of 38 years on attaining superannuation. The submissions made by the appellant are misconceived. They deserve to and are accordingly, rejected. The appeal is dismissed. Consequently, Civil Application for stay is also dismissed.;