- (1.) HEARD learned counsel for the petitioner.
(2.) FROM the office note, it appears that the counsel for the respondent no.1 had appeared after service of notice and counter affidavit has also filed on his behalf, but no body is represented today on behalf of respondent no.1. This writ petition has been preferred by the employerCCL challenging the order dated 12.10.2006 passed in Payment of Gratuity Appeal No. 21/2006 by the Regional Labour Commissioner,(C)cum Appellate Authority under the Payment of Gratuity Act, 1972, respondent no.3, whereby the petitioner's appeal has been dismissed and the order dated 29.5.2006 passed by the Assistant Labour Commissioner ((THELAW)), Hazaribagh and Controlling Authority under the Act, 1972, in P.G.Case No. 36(14)/06, has been affirmed, where it was held that the employee respondent no.1 herein was entitled to receive a sum of Rs. 2,05,905.00 towards gratuity and the employer was not entitled to deduct the penal rent from the outstanding amount due to him, although the respondent no.1 had not vacated the Company's quarter allotted to him. It is the contention of the petitioner that the respondent no.1 neither vacated the company's quarter after his retirement and had not come forward to receive the amount and as such the payment of gratuity was withheld for adjustment of the penal rent of the petitioner. Learned counsel for the petitioner relies upon a judgment of Hon'ble Suprme Court of India in the case of Wazir ChandVs. Union of India reported in (2001) 6 SCC 596, where in a case the employee had remained in unauthorized occupation of the official quarter after retirement, the employer was allowed to adjust the penal rent from the outstanding dues payable to him under the Heads of Post Retirement Dues including gratuity. The relevant paragraph is quoted hereinbelow: " These appeals are directed against the orders of the Central Administrative Tribunal rejecting the claim of the appellant, who happens to be a retired railway servant. Admittedly, the appellant even after superannuation continued to occupy the government quarters, though being placed under hard circumstances. For such continuance, the Government, in accordance with rules, has charged penal rent from the retired government servant, and after adjusting the dues of the Government, the balance amount of the gratuity, which was payable, has been offered to be paid, as noted in the impugned order of the Tribunal. The appellant's main contention is that in view of the Full Bench decision of the Tribunal against which the Union of India had approached this Court and the special leave application was dismissed as withdrawn, it was the bounden duty of the Union of India not to withhold any gratuity amount and, therefore, the appellant would be entitled to the said gratuity amount on the date of retirement, and that not having been paid, he is also entitled to interest thereon. We are unable to accept this prayer of the appellant in the facts and circumstances of the present case. The appellant having unauthorisedly occupied the government quarters was liable to pay the penal rent in accordance with rules and, therefore, there is no illegality in those dues being adjusted against the deathcumretirement dues of the appellant. We, therefore, see no illegality in the impugned order which requires our interference. The appeals stand dismissed."
(3.) AFTER going through the records and after hearing the counsel for the petitioner and from perusal of the aforesaid judgment, it appears that the impugned order denying the employer to deduct penal rent from the outstanding dues of the employee is contrary to the decision led by Hon'ble Supreme Court of India and as such the impugned order is not sustainable. However, in stead of quashing the impugned order it is modified to the extent that the employer is entitled to deduct/adjust the outstanding penal rent due from the employeerespondent no.1 for the period of unauthorized occupation of the official quarter from his outstanding dues and the rest, if any, should be paid to the petitioner . Accordingly, this writ petition is disposed of and the impugned orders are subject to the aforesaid modification made herein.;