9911796707
TMI Blog2020 (1) TMI 1671X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutes an offence can be decided only by a Competent Court. This is because, whether the material on record and acts attributed to a person indicate the ingredients of an offence would have to be judged on the basis of proceedings under criminal jurisprudence. The further question as to whether such an offence involves moral turpitude could perhaps be in the domain of a proceeding other than that under criminal jurisprudence, but what would constitute an offence, could certainly not be within the purview of departmental enquiry or any such enquiry by an employer. 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 [ 2018 (8) TMI 934 - SUPREME COURT] 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 - Hence, it becomes very c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice on 25/04/2013, to the respondent to show cause as to why gratuity payable to him ought not to be forfeited on the ground that he was dismissed for misconduct of giving false information regarding date of birth for the purpose of fraudulently seeking employment. The respondent No. 2 had submitted a form prescribed under the provisions of the said Act for claiming gratuity on the basis of his continuous service. On 30/09/2015, the Controlling Authority passed an order holding that the respondent No. 2 was entitled to receive gratuity for such continuous service and directed the petitioner to pay amount of Rs.4,25,557/- along with 10% simple interest w.e.f. 28/3/2013, till actual date of payment. 5. The petitioner deposited the said amount and filed an appeal under the provisions of the said Act before the Appellate Authority. The petitioner contended that it was entitled to forfeit gratuity amount payable to the respondent No. 2 by exercising power under Section 4(6)(b)(ii) of the said Act, as service of the respondent No. 2 had been terminated for providing false information regarding date of birth, which constituted an offence involving moral turpitude. The Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of information while seeking employment had been held to be an act of moral turpitude. It was submitted that if the law as laid down in the said judgment was applied to the facts of the present case, it was clear that the petitioner was entitled to forfeit the gratuity payable to respondent No. 2. 8. It was further submitted that even though the Hon ble Supreme Court in the case of Union Bank of India and Others Vs. C.G. Ajay Babu and another, (2018) 9 SCC 529, had held that the registration of criminal offence and conviction for an offence involving moral turpitude by the Competent Court of jurisdiction was necessary for invoking Section 4(6)(b)(ii) of the said Act, the said opinion of the Hon ble Supreme Court relying upon an earlier judgment in the case of Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. (2007) 1 SCC 663 , was obiter dicta, which was not binding on this Court. It was submitted that the said view taken in both the judgments of the Hon ble Supreme Court could not be said to ratio decidendi, as the question did not squarely arise for determination in these cases before the Hon ble Supreme Court. In order to support this argument, the learned counsel rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false information regarding his date of birth was proved against respondent No. 2 in the departmental enquiry and on the basis of such findings his service was terminated. The question is whether such an act, which was proved in a departmental enquiry by the petitioner would constitute an offence involving moral turpitude, justifying forfeiture of his gratuity under Section 4(6)(b)(ii) of the said Act. There is no doubt about the fact that, but for furnishing of such false information about his date of birth, the respondent No. 2 would not have been able to secure employment with the petitioner. Thus, the very inception of the respondent No. 2 into employment with the petitioner was based on a false information. There is substance in the contention raised on behalf of the petitioner that by such falsity the very process of securing employment was polluted by the respondent No. 2 and if such an act went unpunished and the respondent No. 2 was held entitled for gratuity, it would clearly send a wrong message to the society. It is on this basis that it has been strongly contended on behalf of the petitioner that the impugned orders passed by the two authorities below deserve to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uity 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. 2 had furnished false information regarding his date of birth, demonstrates that he had indulged in misconduct as specifically defined in service standing orders. It is on the basis of such proven misconduct that the respondent No. 2 stood dismissed from the service and thereby he was deprived of the balance years of service that he could have otherwise claimed. In a sense, he stood penalized for his misconduct. 15. The crucial question that arises for consideration is, as to whether such misconduct proved in a departmental enquiry, which had attained finality could be equated with an offence involving moral turpitude . In this context, the appellate authority is justified in examining as to what could be defined as an offence. The standing orders obviously cannot be referred to find the definition of the expression offence . In the Code of Criminal Procedure, 1973, offence means any act or omission punishable by any law for the time being in force. The question is whether the findings rendered in departmental enquiry conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Under clause (a), the forfeiture is to the extent of damage or loss caused on account of the misconduct of the employee whereas under clause (b), forfeiture is permissible either wholly or partially in totally different circumstances. Clause (b) operates either when the termination is on account of : (i) riotous, or (ii) disorderly, or (iii) any other act of violence on the part of the employee, and under clause (ii) of subsection (6)(b) when the termination is on account of any act which constitutes an offence involving moral turpitude committed during the course of employment. 16. Offence is defined, under the General Clauses Act, 1897, to mean any act or omission made punishable by any law for the time being in force [Section 3(38)]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 said case and in the context of the question framed, held in paragraph 19 as follows : In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no jurisdiction for the forfeiture of gratuity on the ground stated in the order dated 20-4-2004 that the misconduct proved against you amounts to acts involving moral turpitude . At the risk of redundancy, we may state that the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law . 21. Hence, it becomes very clear that the Hon ble Supreme Court did lay down its opinion regarding Section 4(6) (b)(ii) of the said Act, while deciding the specific question framed in the facts and circumstances of that case. Therefore, the said opinion of the Hon ble Supreme Court is binding on thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
