Petitioner was working as Sub Inspector in the Police Department. During tenure of his service career a criminal case was registered against the petitioner in which petitioner has been convicted by the learned Trial Court. On account of filing of the criminal case, he was placed under suspension and had retired from the service after attaining the age of superannuation on 30.4.2005 without initiation of any departmental proceedings. When his retiral dues including Gratuity was not paid, he preferred a Civil Misc Writ Petition No. 25431 of 2006 which was disposed of vide order dated 9.5.2006 with a direction to consider the claim of the petitioner expeditiously. In pursuance to the said direction, respondents have refused to release the gratuity vide order dated 13.8.2006 on the ground that a criminal trial is pending against the petitioner therefore, in view of the G.O. dated 28.10.1980 his gratuity could not be released. It is this order which is subject matter of challenge before this Court.
It is contended by learned counsel for the petitioner that the pensionary benefits including Gratuity, pension etc. of the petitioner is not being released without any rhymes or valid reasons as the petitioner had retired after attaining the age of superannuation on 30.4.2005 and till then neither the suspension of the petitioner has been revoked nor any inquiry was conducted against the petitioner.
Stand of the respondents is that the petitioner being convict of Sessions Trial N0. 329 of 1990, under Sections 147, 149/304, 323, 210 IPC will not be entitled to any pensionary benefits including Gratuity etc. However, he has been released his inerim pension to the tune of Rs. 7700/-.
Heard learned counsel for the parties and perused the material on record.
The provision of payment of Gratuity has been provided under Section 4 of the Act,. Section 4 (1) says that 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; (b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; wherein sub Clause (6) spells out the conditions under which gratuity of an employee can be stopped or withheld. Section 4(6) of Payment of Gratuity Act 1972 is quoted below:-
(6) Notwithstanding 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 forfeited.
(i)if the services of such employee have been terminated for his riotous or disorderly conduct or any other act 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.
While examining the import of the aforesaid section, it contemplates the following conditions on which Gratuity can be withheld (a) if the order of termination is based upon any act, wilful omission or negligence causing any damage or loss to the property belonging to the employer; (b) if the services of an employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part; (c) if the employee is found guilty of moral turpitude provided that said offence has been committed during tenure of his service career. These are the only conditions which empowers the respondents to withhold the Gratuity of the petitioner. In the present case what has been alleged is that the petitioner is convict as such his gratuity cannot be released in his favour while none of the conditions as aforesaid do exist as the petitioner's services were not terminated nor he falls under any of the conditions otherwise given in sub Section (6) and its sub clauses. Termination of services for any of the causes enumerated in Sub- section (6) of Section 4 of the Act, therefore, is imperative.
Perusal of the impugned order reveals that reliance has been placed on G.O. dated 20.10.1980 which contemplates the following things:-
(a) the provisional pension shall be authorized for the period commencing from the date of retirement up to including the date on which judicial proceedings of the departmental or administrative Tribunal, as the case may be, final orders are passed by the competent authority.
(b) No death cum retirement gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative Tribunal.
These rules are contrary to the Section 4(6) of the Act which does not prescribed any such conditions. Even though the expression judicial proceedings have been used for the purpose of any administrative action or which may have given rise to a judicial proceedings relating to the conduct of the Government Servant. One of the main object of withholding gratuity is to compensate the Government from the loss caused by the Government servant during his tenure in the service. In the present case petitioner stands convicted under section 304 IPC and in such eventuality withholding of Gratuity during pendency of the criminal proceedings cannot be accepted.
However, Section 14 of the Act provides that the provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. The overriding effect of any law and amount of gratuity is protected by statutory provisions. Therefore, such amount cannot be denied by the employer to the employee or employer has no power to withhold or forfeit the said amount unless the provisions of Section 4(6) of Payment of Gratuity Act is satisfied. It is not the case of the respondents that procedure which is required under Section 4(6) of the Act was followed by the respondents because it is not the case of termination but it is the case of superannuation. Therefore, Section 4(6) of the Act procedure has not been followed by the respondents.
Hon'ble Apex Court in Balbir Kaur and Another v. Steel Authority of India Ltd. and Another [(2000) 6 SCC 493], has opined "...As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee..."
Perusal of the Act shows that it is a neat scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for 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 to the extent of damage or loss caused. Conditions laid down therein are also not satisfied.
In the circumstances, the writ petition is allowed. The impugned order dated 13.8.2006 is hereby quashed. Respondents are directed to release the entire post retiral dues of the petitioner including the Gratuity, pension, etc within a period of three months from the date of production of certified copy of this order. The petitioner shall be allowed to continue to be paid the interim pension within the said period. The respondents shall fix the final pension and shall pay the same regularly thereafter. The petitioner shall also be entitled to interest at the rate of 6 % per annum towards the delayed payment of gratuity, namely from the date when it became payable and till it is actually paid.
Order Date :- 24.1.2012 RKS/