Baldeo Ram vs South Eastern Coal Fields Ltd. and Another

S.K. Agnihotri, J.

With the consent of learned counsel appearing for the parties, the petition is heard finally.

By this petition, the petitioner seeks a direction to the respondents to pay gratuity amount along with interest. The petitioner also prays for quashment of the order dated 15-11-1995 (Annexure - P/21) whereby the gratuity amount of the petitioner has been forfeited.

The facts, in nutshell, for adjudication of the case, are that the petitioner was working in the respondent company as Deputy Chief Mining Engineer. The petitioner retired from his service on 1-1-1994. During the service period of the petitioner on 21-12-1992 (Annexure - P/10) a memorandum was issued to him with regard to misconduct by failing to maintain absolute integrity and devotion towards duties and acted in a manner prejudicial to the interest of the company in causing coal stock shortage to the tune of 79456.20 tonnes. The petitioner submitted his reply on 8-1-1993 (Annexure -P/11). Therefore, the respondents initiated departmental enquiry proceedings against the petitioner and after concluding the enquiry by \\order dated 15-11-1995 (Annexure-P/21) the entire gratuity amount of the petitioner was forfeited Thus, this petition.

Learned counsel appearing for the petitioner submits that the departmental enquiry has been conducted against the petitioner, contrary to the principles of natural justice and proper opportunity of hearing was also not afforded to the petitioner. The procedure prescribed in service rules has not been adopted in the case of the petitioner in its true perspective and the major penalty has been imposed on the petitioner. Thus, the action of the respondent authorities is unjust, improper and not at all sustainable in the eye of law.

In the identical facts of the case, the Supreme Court in Jaswant Singh Gill v. Bharat Coking Coal Ltd. and Others (2007) 1 SCC 663 observed as under:

A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. It will bear repetition to state that the Rules framed by Respondent 1 or its holding company are not statutory in nature. The rules in any event do not proved for withholding of retrial benefits or gratuity.

The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also 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-�-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, willful omission or negligence causing any damage. However, the amount liable to be forfeited would be only top 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 offence involving moral turpitude. Conditions laid down therein are also not satisfied.

In the case on hand, the impugned order of forfeiture of full gratuity amount was not granted on account of any loss or damage caused by the petitioner to the respondent company, but on account of alleged misconduct committed by him.

Accordingly, in view of decision of the Supreme Court in Jaswant Singh Gill (supra), the order dated 15-11-1995 (Annexure - P/21) is quashed. The petition is allowed. No order asto costs.