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TMI Blog2009 (4) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... part, he was liable to pay outstanding house rent of Rs. 36/- and outstanding electricity charges of Rs. 41,891/- apart from bearing the charges of a missing RRC slab worth Rs. 400/-. The company was ready and willing to pay gratuity to the first respondent after deducting a sum of Rs. 1,23,889.50p from the gratuity payable; being Rs. 1,99.185/-. The net payable amount of Rs. 75,295.90p was offered to the first respondent who refused to accept it. In terms of the Gratuity Rules of the company, it was authorised to deduct gratuity payable to an ex-employee if he did not vacate accommodation provided to him. It was. therefore, contended that over and above the sum which was offered to the first respondent, he was not entitled to anything more. 3. The Controlling Authority did not accept the contention of the company and by its order dated 24.7.2006, directed the company to make full payment of gratuity i.e. Rs. 1,99,185/- within 30 days from date of the order. 4. Feeling aggrieved, the company preferred an appeal before the appropriate appellate authority under the Act. The Appellate Authority by its order dated 28.2.2008 dismissed the appeal and confirmed the order of the Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and, accordingly, returned findings which are erroneous in law. 10. In support of the contention that deduction from gratuity could be made for realisation of penal rent, reliance was placed by him on the decision in Wazir Chand v. Union of India and Ors., reported in (2001) 6 SCC 596. A Division Bench decision of this Court in M.A.T. No. 427 of 2005 (Bhola Mishra v. The Union of India) dated 5.5.2005 was also relied on in this regard. For the proposition that forfeiture of gratuity is not the same as deduction therefrom of an amount payable by an employee to his employer, reliance was placed by him on the decision of a learned Judge of this Court in Sardar Sohan Singh v. Union of India and Ors., reported in 2007 Lab IC 1345. 11. Based on the aforesaid submissions, he prayed for setting aside of the orders of the authorities under the Act. 12. Upon hearing Mr. Gupta, the issues that arise for a decision on this petition are as follows: (1) Whether the company was justified in its action of offering Rs. 75,295.90p to the first respondent after deducting a sum of Rs. 1,23,889.50p from the total amount of gratuity of Rs. 1,99,185/-payable to the first respondent? (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court that the same were approved by the Board of Directors of the company in its 46th meeting held on 8.8.1978 and are effective from that date. The company is a Central Government undertaking. It is, therefore, clear that the Gratuity Rules of the company have not been framed in pursuance of any statute and have no statutory force. 15. The decision in Wazir Chand (supra), cited by Mr. Gupta, has been looked into. It does not lend any assistance to this Court to decide the issue. In its short judgment, the Apex Court held that we are unable to accept this prayer of the Appellant in the facts and circumstances of the present case. No principle of law, thus, was laid down. This Court does not consider the decision to be one, which in view of Article 141 of the Constitution is having a binding effect. 16. The Division Bench decision in Bhola Mishra (supra) was rendered on concession of the employee and does not lay down any law, which ought to be followed. 17. It is true that the decision in Sardar Sohan Singh (supra) is one directly on the point. If this Court could share the view expressed by the learned Judge therein, the contention advanced by Mr. Gupta ought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th him that in view of provisions in Sections 4(6), 13 14 of the Payment of Gratuity Act, 1972 an employer cannot withhold payment of gratuity on the ground that the employee concerned failed to surrender his property (there it was land). The question in that case, however, was not whether the employer could deduct his dues from the gratuity payable to his employee under provisions of that Act. Putting such a prohibition against the employer's right, in my opinion, will simply amount to rewriting the legislation itself. Forfeiture or attachment of the gratuity of a part thereof is not the same thing as deduction therefrom of an amount payable by the employee to his employer is. If it is said that because of provisions in Section 4(6) deduction is a forbidden thing, then even for admitted dues, the employee, without making his employer contravene the provisions, will not be in a position to ask his employer to deduct the dues from his gratuity. I do not see any reason why the Court should see a prohibitory provision that the legislature never made. Nothing prevented the legislature from putting a prohibition as visualised and contended by counsel for the petitioner. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and obligations of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act. 24. The Bombay High Court, after noticing the aforesaid decision, in Ramjilal Chimanlal Sharma v. M/s. Elphinstone Spinning and Weaving Mill Co. Ltd., reported in 1984 Lab IC 1703 observed as follows: 5. ***The contention cannot be accepted because the right to the among of gratuity is not circumscribed or made dependent on the conduct of the employee subsequent to the date of his retirement. A right to secure-gratuity amount cannot be defeated or cannot be used as lever by the employer for securing back possession of the premises from the company It is not permissible under the Payment of Gratuity Act to withhold the amount for any reason and in my judgment even though the conduct of the company in holding back possession of the premises is not very praiseworthy still that is not a sufficient reason to deprive him of the right of gratuity.*** 25. A learned Judge of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service rendered by him and, therefore, gratuity payable to him could not have been linked with alleged illegal retention thereof. An employee covered by the provisions of the Act is entitled to gratuity for service rendered by him and the right which has accrued in his favour cannot be allowed to be impaired except to the extent permitted by the Act. 28. The maxim expressum facit cessare taciturn meaning when there is express mention of certain things, then anything not mentioned is excluded would apply in constructing the Act. This well-known maxim which is principle of logic and common sense and not merely a technical rule of construction has been applied by the Apex Court in a number of cases reference to which, however, is not considered necessary. 29. The silence in the Act must be held not to have allowed withholding/ deduction from gratuity payable to an employee and it is not necessary to construe the statute in a manner construed by the learned Judge in Sanku Sohan Singh (supra) that there is no requirement of reading a prohibition provision that the legislature never made. In this connection, it would also be useful to refer to the decision in Moniruddin Bepari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceptions provided in Section 4 (6) of the Act. The Division Bench also ruled that service Regulations or rules inconsistent with Section 4(6) of the Act has to yield to the provisions contained in Section 4(6) of the Act and shall stand superseded by reason of section 14 thereof. 33. The Gratuity Rules (insofar as it permits the employer to deduct any sum towards dues payable by the employee) which are not statutory in nature and are wholly inconsistent with the scheme of the Act can have no effect having regard to provision of Section 14 thereof. Such non-statutory rules could not have been pressed into service to render the scheme of the Act nugatory. To the extent the decision in Sardar Sohan Singh (supra) fails to consider Section 14 of the Act in the proper perspective, it ceases to have the effect of a binding precedent. This Court is conscious that a misreading of a provision in a decision would as much be binding on a subsequent Bench of coordinate strength but apart from a casual reference to Section 14 of the Act in the portion quoted above, there appears to be no real consideration of its effect in the decision as well as appreciation of the law laid down in Jaswant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dues without the company having to contravene the provisions of the Act, a situation which the learned Judge deciding Sardar Sohan Singh (supra) perhaps missed to visualize. 38. It is also noticed from the pleadings before the authorities under the Act that the first respondent did not vacate the official accommodation allotted to him soon after his retirement because the company deliberately delayed release of retirement benefits in his favour. The contention could be right or wrong. It is not for this Court to decide this issue. However, this fact is referred only to emphasize that in a given case even if the employer is at fault in not releasing retiral benefits in favour of the employee on time results in the employee not vacating the official which accommodation according to the employer's House Allotment Rules and if the dispute takes a sufficiently long time to be resolved and in the process gratuity payable under the Act is withheld for no good reason than that the employee has not vacated the residential accommodation, the very purpose of enactment of a social welfare legislation like the Act providing for immediate payment of gratuity after retirement would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for riotous or disorderly conduct or any other act of violence; (iii) termination of service due to an offence involving moral turpitude committed in course of this employment. 8. Reliance was placed in this regard on three Apex Court decisions which are as follows: (1) AIR 1985 SC 996 (Calcutta Dock Labour Board and Anr. v. Sandhya Mitra and Ors.) (2) AIR 1990 SC 1923 (D.V. Kapoor v. Union of India and Ors.) 13. In our view, the learned judge correctly approached the situation and rightly held against the Appellant and directed them to pay the deducted amount to the respective employees being the writ companys/respondents and we do not find any scope of interference. 14. As a result, the appeals fail and are hereby dismissed. ******* 42. To distinguish the decision in Mining Allied Machinery Corporation (supra), the learned Judge in Sardar Sohan Singh (supra) observed as follows: The first question for decision is whether the matter directly in issue in the present case is covered by any binding precedent. I am unable to agree with counsel for the parties that it is. In so far as the Division Bench decision of this Court in Mining A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 6(20 of the VRS lays down that the payment under VRS shall be made after handling over all charges of the posts including tools, materials, accessories and residential accommodation by the Corporation. In my opinion the aforesaid paragraph 6(2) of VRS cannot be made available in respect of payment of gratuity under Payment of Gratuity Act, 1972 because if the said paragraph is made applicable in respect of payment of gratuity then it shall violate the mandate of the provisions of the Payment of Gratuity Act and cannot but be termed to be illegal in the nature. 45. It is clear from a bare perusal of the decision of the learned single Judge as extracted above that gratuity was sought to be withheld not on invocation of any provision of rules framed by the employer but on the basis of a condition in its Voluntary Retirement Scheme. Payment of gratuity was not released because the accommodation had not been vacated. The Scheme is also an instrument as referred to in Section 14 of the Act. The impugned action was not found to be authorised in law by the learned single Judge and the view was upheld by the Division Bench. 46. From whichever angle one looks at, the conclusion is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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