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TMI Blog2020 (1) TMI 1671X X X X Extracts X X X X X X X X Extracts X X X X ..... ears 6 months and 8 days put in by the respondent No. 2 with the petitioner. The said authorities have concurrently rejected the contention of the petitioner that it was entitled to forfeit gratuity payable to the respondent No. 2 under Section 4(6)(b)(ii) of the said Act. 3. The respondent No. 2 joined service with the petitioner in the year 1990 and he was regularized in general Mazdoor category - I on 01/01/1992. On 21/4/2002, when the respondent No. 2 was working on the post of Fitter (Auto) Category IV, a complaint was received at the headquarters of the petitioner, stating that while the actual date of birth of the respondent No. 2 was 01/07/1953, he had entered service by falsely claiming his date of birth as 01/07/1960. On this basis, chargesheet was issued against the respondent No. 2 on 07/09/2012, for giving false information on his date of birth by reducing his age for the purpose of employment. Pursuant to the said enquiry, report dated 05/02/2013 was submitted and on the basis of findings in the enquiry report, the respondent No. 2 was dismissed from service on 28/3/2013. 4. The petitioner issued show cause notice on 25/04/2013, to the respondent to show cause as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of birth of the respondent No. 2 was 01/07/1953, while he had falsely got his date of birth recorded while obtaining employment with the petitioner as 01/07/1960. If his actual date of birth is taken into consideration, he would not have been even eligible for employment with the petitioner. It was submitted that such falsehood polluted the inception of the respondent No. 2 into the employment of the petitioner and, therefore, it was clearly an act of moral turpitude, thereby showing that the petitioner was entitled to forfeit the gratuity payable to the respondent No. 2, under Section 4(6)(b)(ii) of the said Act. It was submitted that the authorities below wrongly held that unless criminal proceedings were initiated and offence was registered against respondent No. 2 for the said conduct on his part and then conviction was rendered against him, that gratuity could be forfeited. The learned counsel appearing for the petitioner relied upon judgment of the Hon'ble Supreme Court in the case of Devendra Kumar Vs. State of Uttaranchal and others (2013) 9 SCC 363, to contend that in the said case, suppression of information while seeking employment had been held to be an act of moral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent No. 2 having been convicted for any such offence. By placing reliance on the judgment of the Hon'ble supreme Court in the case of Union Bank of India and Others Vs. C.G. Ajay Babu and another (supra), it was submitted that the writ petition deserved to be dismissed. 10. Heard learned counsel for rival parties and perused the material on record. Considering the nature of submissions made before this Court, a reference to Section 4(6)(b)(ii) of the aforesaid Act is necessary, which reads as follows : "4. Payment of gratuity - 1 .... 2 .... 3 .... 4 .... 5 .... 6. Notwithstanding anything contained in sub-section (1) - (b) the gratuity payable to an employee [may be wholly or partially forfeited] - (i) .... (ii) if the services of such employee have been terminated for any act which constitute an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment." 11. In the present case, there is no dispute about the fact that the misconduct of having given false information regarding his date of birth was proved against respondent No. 2 in the departmental enquiry and on the basis of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfies the requirements specified in Section 4 of the said Act. Gratuity is an amount paid to an employee in consideration for continuous service that is put in by such an employee for years together (minimum service required being five years of continuous service). It is, therefore, directly relatable to every completed year of service and it is based on the rate of wages last drawn by the employee. The requirements under Section 4 of the said Act are clearly spelt out and the quantum of gratuity can be ascertained based upon the facts pertaining to each employee. There is no doubt about the fact that in the present case the respondent No. 2 had completed 22 years 6 months and 8 days continuous service with the petitioner. Therefore, on the basis of number of years of service put in by respondent No. 2, he was clearly eligible for payment of gratuity under the provisions of the said Act, particularly Section 4 thereof. 14. Since Section 4(6)(b)(ii) of the said Act is an exception to the whole object and purpose of the said Act to pay gratuity to an employee for the continuous service put in, it has to be interpreted strictly. The fact that it was proved that the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e would otherwise be eligible, based on long years of continuous service. 17. In this context, the Hon'ble Supreme Court in the case of Union Bank of India and Others Vs. C.G. Ajay Babu and another (supra), has categorically held as follows : "15. Under sub-section 6(a), also the gratuity can be forfeited only to the extent of damage or loss caused to the Bank. In case, the termination of the employee is for any act or wilful omission or negligence causing any damage or loss to the employer or destruction of property belonging to the employer, the loss can be recovered from the gratuity by way of forfeiture. Whereas, under clause (b) of sub-section (6), the forfeiture of gratuity, either wholly or partially, is permissible under two situation : (i) in case the termination of an employee is on account of riotous or disorderly conduct or any other act of violence on his part, (ii) if the termination is for any act which constitutes an offence involving moral turpitude and the offence is committed by the employee in the course of his employment. Thus, clause (a) and clause (b) of subsection (6) of Section 4 of the Act operate in different fields and in different circumstances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of this Court relied upon by the learned counsel appearing for the petitioner in the cases of Mohandas Issardas and others Vs. A. N. Sattanathan and others (supra) and Shankar Amrita Deshmukh Vs. M/s Paper and Pulp Conversions Ltd. and another (supra) on the question of precedents, ratio decidendi and obiter dicta, would also not come to the assistance of the petitioner. This is because, it has been categorically held therein that opinion of the Hon'ble Supreme Court on a question that arises for determination, is binding on the High Courts. 20. A perusal of the judgment of the Hon'ble Supreme Court in the case of Union Bank of India and Others Vs. C.G. Ajay Babu and another (supra), shows that in the opening paragraph the question framed for consideration was, whether forfeiture of gratuity under the Payment of Gratuity Act, 1972, is automatic on dismissal from service. In the process of deciding this specific question and upon hearing the counsel, the Hon'ble Supreme Court examined whether Section 4(6)(b)(ii) of the said Act would apply in the case before it and then laid down the law as quoted above. In fact, the Hon'ble Supreme Court after referring to the facts of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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