Sunteți pe pagina 1din 4

BEFORE THE APPELLATE AUTHORITY

UNDER PAYMENT OF GRATUITY ACT, 1972 AND


THE DY. CHIEF LABOUR COMMISSIONER (CENTRAL),
GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND EMPLOYMENT
4TH FLOOR, JEEVANDEEP BUILDING, PARLIAMENT STREET,
NEW DELHI-110001.

In the matter of Gratuity Appeal No: 36(56)/2018 P.A.DYC

Claim Application Number: ALC-I//36(52)/2017-NK


Between:

The Managing Director


M/s Air India Ltd,
Gurudwara Rakabganj Road,
New Delhi-110001. ....Appellant

Vs

Sh. F.G. Runda


R/o GG-2,
35-C, Vikas Puri,
New Delhi-110018 .....Respondent

Present:

Sri Rajan Jha and Sri Omkar Singh for the Appellant.
Sri Inderjeet Singh and Sri F G Runda himself for the Respondent.

Decision

This memorandum of appeal was filed on 30/07/2018 under sub section (7) of Section (7)
of the P.G. Act, 1972 (hereinafter referred to as ‘Act’) by The Managing Director, M/s Air India
Ltd, Gurudwara Rakabganj Road, New Delhi-110001. (here-in-after referred to as ‘Appellant’)
against Sh. F.G. Runda, R/o GG-2, 35-C, Vikas Puri, New Delhi-110018 (Here-in-after referred
to as ‘Respondent’) assailing the order dated 25.05.2018 of the Controlling Authority & Assistant
Labour Commissioner (C), Delhi-I (hereinafter referred to as ‘CA’) in Claim Application No.
ALC-I//36(52)/2017-NK directing the appellant to pay the gratuity amount of Rs 396761/- along
with simple interest @ 10% per annum for delayed payment w.e.f. 22.01.2013 till the date of
actual payment.
The hearing in the above appeal was held on 04/09/2018 and finally on 27.09.2018 when
both the parties were present. The appellant stated that the respondent was appointed as Traffic
Superintendent on 31.12.1990 in the Northern Region NACIL. The respondent was dismissed
from service vide order dated 22/01/2013 on the basis of disciplinary inquiry for charges of theft,
fraud, dishonesty, abetment and wilful damage to the property and causing financial loss to the
tune of Rs 6,69390 to the appellant. The appeal dated 6/2/2013 was filed by the respondent against
the order of dismissal which was rejected by the Appellate Authority on 31/07/2013. The
respondent filed an Industrial dispute against the order of dismissal which is pending before the
CGIT. Subsequently the respondent filed a claim application on 8/5/2017 before the CA for
gratuity and during the pendency of the said claim application the appellant submitted that gratuity
was forfeited in accordance with section 4(6) of the Act after conducting a detailed departmental
inquiry in which the respondent was found guilty of serious misconduct involving moral turpitude
and also for causing financial loss to the appellant. FIR was also lodged against the respondent
before the CBI and he was also arrested by CBI. The appellant has pleaded that the CA has
wrongly held that a second inquiry for forfeiture is necessary though the respondent was served
the show cause notice after concluding the inquiry requiring the respondent to show why
punishment of dismissal without retiral benefits be not imposed on him. The respondent on
22/6/2015 claimed that he reserves his right to claim gratuity anytime after the conclusion of the
Industrial Dispute pending before the CGIT whereas the dispute is still pending. The appellant
further stated that the respondent almost after five years fill claim application before the
controlling authority without any application of condonation of delay which was erroneously
allowed by Controlling Authority and pleaded to condone the delay of 2 days and to set aside the
impugned order of the CA.

The Respondent has submitted that the order of the CA is just and fair as he is entitled for
gratuity as determined by the CA as per provisions of the Act. The respondent has questioned the
departmental proceedings as it was unfair and biased against him. The respondent further stated
that the amount of gratuity is liable to be forfeited only to the extent of damage or loss caused to
the employer but the alleged loss or damage was not quantified by the Disciplinary Authority as
compared with the amount of gratuity payable to respondent. Also enquiry conducted by the
management has been set aside by the Hon’ble CGIT and forfeiture of gratuity on the basis of
moral turpitude is not possible without the conviction for the acts involving moral turpitude as the
gratuity is a statutory right that cannot be denied. The Appellant intentionally delayed the
payment. The non payment of gratuity is a continual wrong and there is no question of delay in
filing claim application and claim of interest on late payment of Gratuity is well within rules. The
appeal has been filed on false and frivolous grounds and without any cause of action, hence, liable
to be dismissed on this ground alone.

The delay of two days in preferring this appeal is condoned. It is apparent on perusal of
relevant records submitted by both the parties during the hearing of appeal and arguments thereto
along with the original file ALC-I//36(52)/2017-NK that the respondent was dismissed from
service following a disciplinary inquiry on account of charges of theft, fraud, dishonesty abetment
and wilful damage to the property and causing financial loss to the appellant. An FIR was also
filed to the CBI under section 120B read with 380, 408, 419, 420, 467, 468, 471 and 511 of the
Indian Penal Code, 1860 for such offences. The respondent was dismissed from service of the
appellant without retirement benefits vide order dated 22/01/2013. The respondent filed an
Industrial Dispute case No. 63/2014 before the CGIT against the said dismissal which is still
pending. The respondent also filed a claim application for gratuity before the CA on 8/5/2017
which was decided by the CA on 25/5/2018 in favour of the respondent. The finding of the CA
that a separate and independent inquiry is required to forfeit the gratuity in view of section 4(6) of
the Act is assailed by the appellant with the contention that after conclusion of detailed inquiry
where a show cause notice was issued requiring the respondent to show cause why punishment of
dismissal without retiral benefits be not imposed on him is sufficient in conformity with the
principles of natural justice. I am of the considered opinion that the contention of the appellant
holds good as the charges which were proved against the respondent after following a due
departmental procedure were also the basis of forfeiture of gratuity. The charges of theft, fraud,
dishonesty, abetment and wilful damage to the property etc are sufficient to invoke the right to
forfeit the gratuity in full under the provisions under section 4(6)(b)(ii) as all such acts involve an
element of moral turpitude. There is no requirement to specifically quantify the loss as loss is not
the only criterion for forfeiture. Such acts that involve moral turpitude are sufficient to forfeit the
gratuity in full. The prerequisite of conviction is also not the sine qua none to exercise the right to
forfeit the gratuity. It is an established fact that theft, fraud and misappropriation of public money
are such offences that involve moral turpitude. The CA has erred in interpreting the decision of the
High Court Jharkhand in Indian Aluminium Co. Vs RLC and High Court of Calcutta in UCO
Bank Vs Nityanand Paul and the High Court of Delhi in BR Sharma Vs Syndicate Bank as all the
case are relevant to the facts of the present case. The cases referred to by the respondent are not
relevant as the facts in this case are different. Since banks are the custodian of public property
therefore bank Rules provide for the strict adherence to the bank procedures and norms by the
bank employees and bank rules provide for the forfeiture of gratuity where a penalty of dismissal
from service without retiral benefits is imposed following a disciplinary proceeding. the CA or the
Appellate Authority under the Act have no power to adjudicate into the disciplinary proceedings
under the Bank Rules. The respondent was given an opportunity to show-cause before the
imposition of punishment of dismissal without retiral benefits after concluding the departmental
inquiry; hence in view of the above it is redundant to conduct a separate and independent inquiry
for forfeiture of gratuity for the same charges and action and no quantification of loss is
mandatory to invoke the provisions of section 4(6)(b) (ii) of the Act for forfeiture of gratuity for
any act that constitute an offence involving moral turpitude by an employee in the course of his
employment.
In view of the above the order of the CA dated 25/4/2018 is set aside. The appeal is
allowed.

Given under my hand and seal this on 9th October, 2018 and parties are informed
accordingly.

(Yashpal Tyagi)
Appellate Authority
Under Payment of Gratuity Act, 1972 &
Dy. Chief Labour Commissioner (Central)
New Delhi

Copy to the Controlling Authority and Asstt. Labour Commissioner (Central), Delhi-I.(By name)
for information w.r.t. his file No. ALC-I//36(52)/2017-NK

Dy. Chief Labour Commissioner (Central)


New Delhi

S-ar putea să vă placă și