9911796707
TMI Blog2023 (9) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... ood Corporation of India (hereinafter referred to as 'FCI') on January 31, 1978. The petitioner was first promoted to the post of AG-II(D) and then to the post of AG-I(D) in 2001. The petitioner was depot-in-charge/overall in-charge of two sheds at F.S.D. Chanpatia. b. In 2012, a physical verification of such sheds was conducted by a team of officials of District Office, FCI, Champaran (Motihari), Regional Office, Patna and Zonal Office, Kolkata team where a shortage of food grains was found. Subsequently, the FCI, Zonal Office, Kolkata and FCI Headquarters, New Delhi conducted an audit of accounts of the depot. The petitioner, along with other officials, was placed on suspension by the General Manager, FCI on June 1, 2012, and the suspension was revoked on October 17, 2012. After such revocation, the petitioner was posted at FCI District Office, Suri (West Bengal) and thereafter at the depot in Abdarpur, West Bengal. c. On January 19, 2013, a charge sheet was issued against the petitioner and disciplinary proceedings were initiated. Soon after, the petitioner superannuated on November 30, 2013. Following were the findings of the inquiry officer which were mentioned in the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a CBI case bearing No. RC 203 2012 A 0028 dated December 27, 2012, had been registered against the petitioner; (iii) That another police case bearing No. 512/2004 dated December 12, 2004 under Section 120 of the Indian Penal Code, 1860 was also pending against him; (iv) That a CBI case bearing No. RCO23 2014 A0018 dated August 30, 2014, under Section 120B and 420 of the Indian Penal Code, 1860 and under Section13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 had been registered by CBI/ACB/Patna against the petitioner; (v) That an amount of Rs. 2,47,523/- (Rupees Two Lacs Forty-Seven Thousand Five Hundred and Twenty-Three only) was outstanding against the petitioner for which a demand notice under Ref. No. A/23(Vig)/NDC/2006- 15/261(II) dated June 6, 2016 had been served on him; g. The Deputy Chief Labour Commissioner considered the aforementioned material placed before him as evidence of the petitioner's guilt and deemed this to be a case of "offence involving moral turpitude" as stipulated in Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972. The order of the Deputy Chief Labour Commissioner dated March 16, 2018, allowed the appeal filed by FC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also highlighted that two police cases at the PS Chanpatia, including case No. 512 of 2004 dated December 12, 2004, and case No. 170 of 2010 dated July 10, 2010, have been registered against the petitioner. Furthermore, an amount of Rs. 2,47,523/- (Rupees Two Lacs Forty-Seven Thousand Five Hundred and Twenty- Three only) has remained outstanding against the petitioner for which a demand notice dated June 6, 2016, has been served. Keeping all such issues in mind, the respondent authorities have argued before this Court that the petitioner did not serve faithfully to his employer, i.e., FCI and the same would count as offence constituting "moral turpitude" within the scope of Section 4(6) of the Payment of Gratuity Act, 1972. b. The respondent authorities have argued that the petitioner's pay was reduced to Rs. 9,300/- (Rupees Nine Thousand Three Hundred only) after the penalty order dated August 31, 2015 and that the petitioner has the aforementioned cases pending against him which are both grounds for finding the petitioner guilty of "offence involving moral turpitude". The respondents submit that the Deputy Chief Labour Commissioner had taken consideration of both such issues an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent is convicted by the Hon'ble CBI Court, what then? If he is convicted of the offences it would be offence(s) constituting moral turpitude and Payment of Gratuity Act, 1972 prohibits payment of gratuity to such persons." 8. Aside from the aforementioned observations, the Deputy Chief Labour Commissioner discussed not only the etymology of "moral turpitude" but offered insight on the phrase by quoting an expansive collection of philosophers and dictionaries. The said order followed this rather drawn-out discussion over "moral turpitude" by citing judgements from a plethora of High Courts of this country. This Court does not find any reason to delve into the etymological and philosophical scope of "moral turpitude", nor does it find any relevance in the judgements cited by the Deputy Chief Labour Commissioner, that may be applicable to the factual matrix of the present case. The primary reason for the inapplicability of such judgements is because the judgements cited by the Deputy Chief Labour Commissioner pertain to an employee who was dismissed or terminated from service due to their actions during the course of employment. The Deputy Chief Labour Commissioner d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude." 13. In Union Bank of India & Ors. Vs. C.G. Ajay Babu & Anr., reported in (2018) 9 SCC 529 the Supreme Court further affirmed that forfeiture of payment of gratuity is not permissible unless the same is done in lieu of the specific circumstances mentioned in Section 4(6) of the Payment of Gratuity Act, 1972. The relevant paragraphs of the judgement have been reproduced below:- "17. Though the learned counsel for the appellant Bank has contended that the conduct of the respondent employee, which leads to the framing of charges in the departmental proceedings involves moral turpitude, we are afraid the contention cannot be appreciated. It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non obstante clause vis-à-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, wilful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent 1 was more than the amount of gratuity payable to the appellant. Clause (b) of sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature specified in clauses (a) and (b) of sub-section (6) of Section 4 of the Act that he forfeits his right to receive gratuity under the Act and not otherwise. ......" 17. Lastly, one may consider the case of Oriental Bank of Commerce Vs. The Deputy Chief Labour Commissioner (Central), Kolkata & Ors., reported in 2017 SCC OnLine Cal 3479 wherein a similar factual matrix was before a co-ordinate bench of this High Court. The learned Single Judge had directed the employer to make payment of gratuity with interest, to the petitioner despite the departmental inquiry penalizing the petitioner with a demotion. The court reached such a decision by relying on the aforementioned Supreme Court judgements pertaining to Section 4(6) of the Payment of Gratuity Act, 1972. Summary and Conclusion 18. For the sake of brevity, I have extracted the relevant principles emerging from the aforementioned discussion of the law: a. Payment of gratuity is not charity, rather is a statutory right recognized by the Payment of Gratuity Act, 1972. b. Section 4(6) of the Payment of Gratuity Act, 1972 stipulates specific conditions where the employer may forfeit gratuity. Through the aforemention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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