Sheo Shankar Prasad vs Jharkhand State Mineral Development Corporation and Others

R.R. Prasad, J.—Heard learned Counsel appearing for the Petitioner and learned Counsel appearing for the Corporation.

Learned Counsel appearing for the Petitioner submits that the Petitioner got retired from the post of Assistant Mining Manager, Jharkhand State Mineral Development Corporation on 31.1.1999. When the amount payable towards gratuity and leave encashment were not paid, the Petitioner made representation before the Respondent for making payment but No. order was passed and therefore, there was No. option left with the Petitioner but to move to this Court for a direction to the Respondents to make payment of the amount of gratuity and leave encashment.

A counter affidavit has been filed wherein it has been stated that a sum of Rs. 2,43,636/-is payable to the Corporation as the Petitioner had put the Corporation to loss to that extent.

Learned Counsel appearing for the Petitioner submits that even it is accepted for the sake of argument that on account of some negligence the Corporation has been put to loss to the extent claimed by the Corporation, the authority does not have any power under the Payment of Gratuity Act, 1972 or any other law to recover or to adjust that amount from the amount payable towards gratuity and the leave encashment and, therefore, the authority be directed to make payment of the amount which is admissible to the Petitioner towards leave encashment and the gratuity.

Learned Counsel appearing for the corporation submits that the employees of the Corporation are not governed by the Bihar Pension Rules rather they are governed by the Payment of Gratuity Act.

In the context of the submission, relevant provision of the Payment of Gratuity Act needs tobe taken notice of. Section 4(1) of the Payment of Gratuity Act speaks about the payment of gratuity which reads as follows:

Payment of gratuity (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, -

(a) on his superannuation, or

(b) on his retirement or resignation, or

(c) on his death or disablement due to accident or disease:

Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement.

[Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or,if No. nomination has been made, to his heirs,and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.]

Explanation.-For the purpose of his section, disablement means such disablement as incapacitates an employee for the work which he was capable of performing before the accident or disease resulting in such disablement.

Further Sub-section (6) of Section 4 reads as follows:

(6) "Not with standing anything contained in Sub-section(1), -

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee [ may be wholly or partially for feited]

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.

From perusal of Clauses (a) and (b) of Sub-section (6) of Section 4, it does appear that the amount of gratuity can be forfeited in full or part in a case where services of the employee of the Corporation is terminated on account of wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer or in case of riotous or disorderly conduct or for an act constituting an offence involving moral turpitude.

It is never the case of the Corporation that the services of the Petitioner has ever been terminated on any of the aground mentioned in Clause (a) and (b) and as such, the amount which is payable towards gratuity can never be forfeited simply on the allegation that the Petitioner has put the Corporation to loss to huge extent and, therefore, the amount which is payable to the Petitioner towards gratuity which has been withheld by the Corporation is liable to be released in favour of the Petitioner.

So far payment towards leave encashment is concerned, nothing has been placed before me entitling the employer to withhold the amount payable towards leave encashment.

In that view of the matter, the Petitioner is also entitled to have the amount payable towards leave encashment.

Accordingly, this writ application is disposed of directing the Managing Director of the Corporation, Respondent No. 1 to make payment of the amount payable to the Petitioner towards gratuity and leave encashment with statutory interest, if any, within a period of six weeks from the date of receipt/production of a copy of this order.

In case of non-payment of any other claim which is admissible to the Petitioner, the Petitioner would be at liberty to file representation before the Respondent No. 1 within a period of four weeks upon which decision be taken by the Respondent No. 1 within a period of eight week thereafter.