RAVINDRA v. GHUGE, J. DATE
Case Details
2024:BHC-AUG:113 247.24ca.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 901 CIVIL APPLICATION NO. 247 OF 2024 IN/WITHREVIEW APPLICATION (ST.) NO.2771 OF 2020IN WRIT PETITION NO.12405 OF 2019 SMT. BHARTIBAI RAMESH KAMBALEVERSUSMAHARASHTRA GRAMIN BANK, THROUGH ITS CHAIRMAN….Mr Wasudeo N. Nayse, Advocate for Applicant;Mr P. P. Shahane & Mr P. L. Shahane, Advocate for Respondent CORAM : RAVINDRA V. GHUGE, J. DATE : 5th January, 2024PER COURT:1.This Civil Application is filed for restoration of theReview Application (St.) No.2771/2020, which was dismissed by thelearned Registrar (Judicial) vide order dated 22/11/2021. By consentof the parties, this Civil Application is allowed. The ReviewApplication is restored and is taken up for hearing, by consent of theparties.2.I have considered the submissions of the learnedAdvocate for the Review Applicant, who was the Respondent in WritPetition No.12405/2019, filed by the Bank. His contention in theopen Court is plain and simple that, the Applicant’s husband had 247.24ca.odt(2)taken a note of Rs.500/- from the cashier’s box, surreptitiously. Fortaking such a note, the entire Gratuity amount of herhusband/deceased employee, cannot be forfeited.3.The learned Advocate further submits that the name of herhusband and the Petition Number is mentioned in the title clause ofthe Judgment dated 16/12/2019, in as much as, it is observed in theconcluding paragraph No.43 that the said Petition preferred by theBank/Employer, is allowed. It is pointed out that the name of thedeceased employee is not mentioned in the ready reference chartbelow paragraph No.2 of the said Judgment. This is a typographicalerror and the name of the deceased employee should be mentioned inparagraph No.2.4.The learned Advocate for the Respondent/Bank submitsthat the deceased employee had stolen an amount of Rs.500/- fromthe cashier’s box. This was noticed in the CCTV footage.Disciplinary proceeding was therefore initiated. The deceasedadmitted his guilt in the said proceeding and it was concluded that hehad indulged in an act of theft. Being a Bank, the service of thedeceased was dismissed on 17/10/2012. The said dismissal fromservice has not been challenged by the deceased before any Court andno proceedings in connection therewith, are pending.
Facts
247.24ca.odt(3)5.The learned Advocate for the Review Applicant/ widow,who represents the deceased employee and was Respondent in WritPetition No.12405/2019, submits that, a theft of Rs.500/- only shouldnot be a ground for forfeiture of the entire Gratuity amount of thedeceased employee. 6.The learned Advocate for the Review Applicant hascanvassed a point that, though the deceased did not challenge hisdismissal from service, which was punitive in nature for provedmisconduct, no misconduct is proved and robbing the Bank byRs.500/- by an employee of the Bank, is not a serious misconduct. Aloss of an amount of only Rs.500/- is caused to the Bank and,therefore, the entire Gratuity of the deceased employee should be paidto the Petitioner.7.I am unable to accept the above submission of the learnedAdvocate for the Review Applicant for two reasons. Firstly, that theorder of dismissal was never challenged by the deceased employeeand the same has attained finality, by which, the conclusion of theoffence of robbing had been proved and considering that the offencewas committed by a bank employee in the employer’s bank, it wasconsidered to be a serious misconduct. This punishment has attainedfinality and the Management has passed the order of forfeiture of the 247.24ca.odt(4)Gratuity, in view of the admitted position, that the deceased employeehad stolen an amount from the cashier’s box. 8.In view of the above, I do not find that the ReviewApplicant/widow has pointed out any error apparent on the face of theJudgment dated 16/12/2019.9.As such, this Review Application is dismissed.10.Since the name of the Review Applicant and the details ofthe offence were inadvertently not mentioned in the ready referencechart under paragraph 2, and the fact that the Applicant’s name wasmentioned in the title clause, in the concluding paragraph and in theentire judgment delivered in the cases of identically placedemployees, paragraph No.2 be corrected by including the names ofthe Review Applicant along with the details in relation to WritPetition Number, Reasons of dismissal, etc. The details are asunder :-12405/2019Bhartibai Wd/o. RameshKamble Widow ofLate RameshSopan Kamble(Died on02/09/2014)1. Charged fortaking outRs.500/- noteon 13/01/2012fromremittancebank whichwas capturedin CCTVFootage.2. Admittedthe guilt inenquiry on23/08/201217/10/201213/01/20151. Involvedin seriousacts ofmisconductinvolvingmoralturpitude.2.Dismissalnotchallenged.3.Application 247.24ca.odt(5)filed aftermore than2 years.4. Form“M”forfeitureof gratuityNoticeissued on09/11/201211.The order be corrected accordingly. Corrected order beuploaded. (RAVINDRA V. GHUGE, J.)sjk 247.24ca.odt(6)(This order dated 16/12/2019 stands corrected in view of theorder dated 05/01/2024, passed on Civil Application No.247/2024alongwith Review Application (St.) No.2771/2020.)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12405 OF 2019Maharashtra Gramin Bank Through its ChairmanVERSUSBharatibai Ramesh Kambale ***WITHCIVIL APPLICATION NO. 12139 OF 2019INWRIT PETITION NO. 12405 OF 2019Bharatibai Ramesh Kambale VERSUSMaharashtra Gramin Bank Through its Chairman***WITHCIVIL APPLICATION NO. 12140 OF 2019INWRIT PETITION NO. 12405 OF 2019Bharatibai Ramesh Kambale VERSUSMaharashtra Gramin Bank Through its Chairman***WITHWRIT PETITION NO. 9672 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSBhujang Sheshrao Shikhare ***WITHWRIT PETITION NO. 9674 OF 2018 247.24ca.odt(7)Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSBhujang Namdeoappa Kaware ***WITHWRIT PETITION NO. 9675 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSVijay Madhukar Koleshwar ***WITHWRIT PETITION NO. 9676 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSBalasaheb Maruti Dhas ***WITHWRIT PETITION NO. 9739 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSRajiv Vasantrao Kurundkar ***WITHWRIT PETITION NO. 10642 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSArun Bhanudasrao Jadhav ***WITHWRIT PETITION NO. 10643 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSGangadhar Babanrao Ingle ***WITH 247.24ca.odt(8)WRIT PETITION NO. 10644 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSSheshrao Mahadu Pandhavale ***WITHWRIT PETITION NO. 10645 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSSantosh Anantrao Mundhalwadkar***WITHWRIT PETITION NO. 10646 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSShakuntala Baburao Mandharne***WITHWRIT PETITION NO. 10647 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSPradeep Prabhakarrao Chikshe***WITHWRIT PETITION NO. 10648 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSShivaji Kashinath Katke ***WITHWRIT PETITION NO. 11344 OF 2018Maharashtra Gramin Bank Through Its ChairmanVERSUSGangaram Maroti Mundkar *** 247.24ca.odt(9)WITHWRIT PETITION NO. 11345 OF 2018Maharashtra Gramin Bank Aurangabad Through Its ChairmanVERSUSShivraj Chandramappa Tenkale***...Shri Pradeep L. Shahane a/w Shri Parag P. Shahane, Advocatesfor the petitioners. Shri D.Y.Nandedkar, Shri V.S.Undre, Shri Vinod M. Vibhute, ShriS.K.Adkine and Shri W.N.Nayse, Advocates for the respondentsin the respective petitions.... CORAM: RAVINDRA V. GHUGE, J. DATE :- 16th December, 2019Oral Order:1In all these matters, the petitioner bank/management has challenged the judgments delivered by theControlling Authority and the Appellate Authority under thePayment of Gratuity Act, 1972. Each of these respondents/employees was subjected to disciplinary proceedings under thestanding orders applicable to the petitioner bank. After theenquiry was concluded, they were awarded with punishments.Some challenged their dismissal from service. This Court hasdismissed the petitions of some workers challenging theirdismissal. Two petitions fled by the respondents, namely,Balasaheb Maruti Dhas (WP/9676/2018) and Gangaram Maroti
Legal Reasoning
247.24ca.odt(10)Mundkar (WP/11344/2018), challenging their dismissal, arepending before the Central Government Industrial Tribunal,Nagpur and one case fled by the respondent Arun BhanudasraoJadhav (WP/10642/2018), is pending before this Court in WritPetition No.482/2016.2For ready reference, following are the details of therespondents/ employees as provided by the learned advocatefor the petitioner Bank :-WP No.RespondentNameand DesignationReason forDismissalDate ofDismissalDate offlingapplicationGrounds9672BhujangSheshraoShikhare (Cashier-cum-Clerk)Unauthorizedlyabsent from15.01.2002 to31.03.200431.03.200405.11.2015Delay ofmore than11 years9674BhujangNamdeoappaKaware(Messenger)Superannuated31.08.201516.06.2016Already paidgratuity ofRs.5,61,753/- at the timeofsuperannuation which isaccepted byRespondent.Delayedapplicationfor about 1year.9675Vijay MadhukarKoleshwar(Officer)Unauthorizedlydealing with thecustomer of theBank/ borrowedmoney from thepersons havingdealings withthe Bank.Acts detrimentalto the interest ofthe Bank.Unauthorizedly27.03.200415.10.2015Dismissedfor seriousacts ofmisconductofunauthorizedly dealingwith thecustomers ofthe Bankanddefraudingthe Bank. 247.24ca.odt(11)absent fromduty.Filedapplicationafter morethan 11years.9676BalasahebMaruti Dhas(CashierIncharge)Cash shortage of5 lacs(admitted).Dishonest andunfaithfulbehaviour whichis an act of grossmisconduct andbreach ofregulations.Not abiding withthe directions/procedure of theBank which isact of grossmisconduct.Act subversiveto discipline anddetrimental tothe interest ofthe Bank, whichis an act of grossmisconduct. 03.01.20132015Misappropriation of Rs.5lacsadmitted inwriting.Forfeiture inForm "M"communicated on09.01.2013.Acts of grossmisconductinvolvingmoralturpitude.Delay ofmore than 2years.9739RajeevVasantraoKurundkar(CashierIncharge)Cash shortage ofRs.65,000/-(admitted).Dishonest andunfaithfulbehaviour whichis an act of grossmisconduct andbreach ofregulations.Act not abidingwith thedirections/procedure of theBank which isact of grossmisconduct.Act subversiveto discipline anddetrimental tothe interest ofthe Bank whichis an act of grossmisconduct.29.05.201308.09.2015Misappropriation ofRs.65,000/-admitted.Forfeiture inForm "M"communicated on26.10.2013.Acts of grossmisconductinvolvingmoralturpitude.Delay ofmore than 2years. 247.24ca.odt(12)10642ArunBhanudasraoJadhav(BranchManager)Unauthorizedpurchase ofcheques of Rs.2lacs.Misappropriatedbank funds ofRs.15,000/-.Not disbursedfull loan ofRs.15,000/- forbusiness tocustomer.Not followedHead Officeinstructions/directions of theBank carefully.Did not servethe Bankhonestly andfaithfully.Acted in amannerdetrimental tothe interest ofthe Bank.09.08.200215.10.2015Applicationfled aftermore than13 years.Serious actsofmisappropriationinvolvingmoralturpitude.Misappropriated amountofRs.15,000/-.Unauthorized purchaseof chequesof Rs.2lakhs.Misconductsproved afterenquiry.10643GangadharBabanrao Ingale(BranchManager)Not followedHead Officeinstructions/directions of theBank carefully.Did not servethe Bankhonestly andfaithfully.Acted in amannerdetrimental tothe interest ofthe Bank.13.12.199919.04.2015Dismissalconfrmed bythe HighCourt in WPNo.330/2001as per orderdated20.06.2002.Applicationfled after 15years.Serious actsofmisconductinvolvingmoralturpitude.10644SheshraoMahaduPandhavale(Messenger)Superannuated31.10.201422.02.2016Already paidgratuity ofRs.4,47,710/- at the timeofsuperannuation which isaccepted byrespondent. 247.24ca.odt(13)Delayedapplicationfor about 1and 1/2years.Interest notawarded bycontrollingauthorityand awardedin appeal ofthe Bank bytheAppellateAuthority.10645SantoshAnantraoMudhalwadkar (Clerk)Misappropriationof Bank funds.(admitted inenquiry).Serious acts ofmisconduct.11.02.199716.11.2015After morethan 17yearsapplicationfled.Serious actsofmisconductofdefraudingthe Bankadmitted bytherespondentin enquiry.Form "M"forfeiture ofgratuityissued.10646Smt.ShakuntalaBaburaoMandharne(Officer)Fraudulentlywithdrewamount ofRs.72,000/- byfalsely makingsignatures.Fraudulentlytransferred theamount debited.Found to haveinvolved intoserious acts ofmisconduct ofmisappropriationof Bank funds ina fraudulentmanner anddefrauding theBank.02.09.199509.09.2015Applicationfled aftermore than20 years.Involved inserious actsofmisconductinvolvingmoralturpitude. 247.24ca.odt(14)10648ShivajiKashinath KatkeSanctionedadvances on thebasis of bogus7/12 extracts to29 borrowersand entireoutstandingamount ofRs.13.06 was injeopardy.Not served theBank honestlyand faithfully.Committed actsdetrimental tothe interest ofthe Bank.Not followedHead Officeinstructions/directions/ officeprocedure of theBank carefully.Remainedabsent fromHeadquarterovernightwithoutobtaining priorpermission fromCompetentAuthority.16.12.200815.10.2015Dismissalconfrmed bythe DivisionBench in WPNo.1139/2010 vide orderdated10.04.2012.Delay ofmore than 7years inapproachingthis Court.Involved inserious actsofmisconductinvolvingmoralturpitude. 11344GangaramMaroti Mundkar(Cashier)Cash ofRs.24,000/-found less whileinspection.Admitted lesscash ofRs.24,000/- inwriting.Dishonest andunfaithfulbehaviour whichis an act of grossmisconduct andan actsubversive todiscipline anddetrimental tothe interest ofthe Bank.06.01.20142015Serious actsofmisconductofmisappropriation of thebank fund ofRs.24,000/-.Dishonestandunfaithfulbehaviour.Form "M"notice wasissued on06.01.2014.Involved intoserious actsofmisconduct 247.24ca.odt(15)involvingmoralturpitude.11345ShivrajChandramappaTenkale(BranchManager)556 loandocuments werefound to bebarred andmissing anddefectivethereby, hugeamount of bankfunds to thetune of morethan 508 lacsturned totallyunsecured andunrecoverable.Not served theBank honestlyand faithfully.Displayed grossnegligence andindolence andacted in amannerdetrimental tothe interest ofthe Bank.29.06.2015(Retired)14.10.2015Serious actsofmisconductinvolvinghuge bankfunds ofRs.508 lacsturnedunrecoverable.Dishonestandunfaithfulbehaviour.Enquiry stillpending.Involved intoserious actsofmisconductinvolvingmoralturpitude.12405/2019Bhartibai Wd/o. RameshKamble Widow ofLate RameshSopan Kamble(Died on02/09/2014)1. Charged fortaking outRs.500/- noteon 13/01/2012fromremittancebank whichwas capturedin CCTVFootage.2. Admittedthe guilt inenquiry on23/08/201217/10/201213/01/20151. Involvedin seriousacts ofmisconductinvolvingmoralturpitude.2.Dismissalnotchallenged.3.Applicationfiled aftermore than2 years.4. Form“M”forfeitureof gratuityNoticeissued on09/11/2012 247.24ca.odt(16)3The issues raised in these matters are as regards,whether, the misconduct proved against these respondents canbe said to be an act amounting to moral turpitude, whether,their gratuity for moral turpitude can be forfeited and whether,such a forfeiture at the behest of the employer is permissibleonly if such an employee is held guilty of moral turpitude incriminal proceedings. 4One more issue has been raised which is limited totwo employees, namely, Bhujang Namdeoappa Kaware(WP/9674/2018) and Sheshrao Mahadu Pandhavale(WP/10644/2018), who were messengers with the petitionerbank and though they were paid their gratuity, the period forwhich they were daily wagers of about fve years and eightyears, respectively, has not been considered.5Insofar as the issue of non payment of gratuity forthe period of temporary employment is concerned, ShriShahane, learned advocate for the petitioner bank, vehementlysubmits that these messengers used to work for about two tothree hours in a day. They used to clean the place, fll in thedrinking water in containers and serve cups of tea. They werenot even working for half a day and therefore, it is urged thatthis period of temporary employment should not be reckoned 247.24ca.odt(17)for computing completion of fve years of employment insofaras the eligibility for payment of gratuity is concerned. 6It calls for no debate that even a part timeemployment or employees working for shorter durations or fewhours in the work place, has to be considered as having workedin the employment of the employer. In the matter of BalvantMohan Badve vs. Ahmednagar Municipal Corporation,2016 (3) Mh.L.J. 62, I have dealt with the issue as to whether,an employee, being temporary, could claim gratuity andwhether, being permanent in employment, is the only qualifyingcriteria to hold a person entitled for gratuity. The said issue wasformulated in paragraph 6, which reads as under :-"6. Mr.Barde submits that therespondent/Corporation preferred Appeal (PGA)No.4/2015 which was allowed by the impugnedjudgment dated 04/09/2015. The judgment ofthe Controlling Authority was quashed and setaside and the matter was remitted to theLabour Court for deciding the claim afresh.Grievance is that gratuity is payable to anemployee after he completes 5 years incontinuous employment. Whether he is a"temporary" or a "permanent" employee is notthe criteria for deciding whether he is entitledfor gratuity. Mr.Barde, therefore, submits thatthe impugned judgment is unsustainable." 7After framing the above issue in Balvant Badve(supra), I have observed in paragraphs 11 to 14 as under :-"11. It is, therefore, apparent that any employee,whether he be a temporary or a permanent, he 247.24ca.odt(18)would be entitled for gratuity after 30 days ofsevering employer-employee relationship if hesatisfies Section 2A and Section 4 of thePayment of Gratuity Act. There is no disputeabout the tenure of service of the petitionerfrom 07/09/1985 till 01/04/2007 and the factthat he was a Civil Engineer as on the date ofhis retirement. There is no dispute even asregards his last drawn salary. 12. I find that the Industrial Court, by itsobservations in paragraph No.13 of thejudgment on internal page Nos.11 and 12, hasarrived at a self-contradictory conclusion. Onthe one hand, it has concluded that the serviceof the petitioner is not legalized and thereforehe is not entitled for gratuity. On the otherhand, it has concluded that the matterdeserves to be remanded to the ControllingAuthority for a fresh adjudication. Needless tostate, these conclusions are perverse,erroneous and refect non-application of mind. 13. Even if it is presumed for the sake ofpresumption that the Government finally doesnot regularize the services of the petitioner,yet, he would be entitled for gratuity for havingworked continuously and having fulfilled therequirement of Section 2A and Section 4 of thePayment of Gratuity Act. Non-payment ofgratuity after 30 days from the date of severingemployer-employee relationship entails interestas may be granted by the competent authority.14. In the light of the above, this petition isallowed. The impugned judgment of theIndustrial Court dated 04/09/2015, beingperverse and erroneous, is quashed and setaside. The judgment of the ControllingAuthority dated 09/03/2015 is sustained.Appeal (PGA) No.4/2015 filed by therespondent stands dismissed." 247.24ca.odt(19)8In the case of Netram Sahu vs. State ofChhattisgarh and another, AIR 2018 SC 1545, theHonourable Supreme Court dealt with the case in which, anemployee had worked for twenty fve years out of which, hisinitial 22 years were as a daily wager and he was a permanentemployee for three years. It was concluded that he would beentitled for gratuity for the entire period of employmentinclusive of his temporary service with the employer. 9Considering the above, I fnd that the ControllingAuthority has rightly granted the diference in payment ofgratuity to Bhujang Namdeoappa Kaware and ShesheraoMahadu Pandhavale. In view thereof, Writ PetitionNos.9674/2018 and 10644/2018, being devoid of meritare, therefore, dismissed. 10In the case of Bhujang Sheshrao Shikhare (WritPetition No.9672/2018), the said employee was alleged to beunauthorizedly absent from 15.01.2002 till 31.03.2004. Since hewas alleged to be continuously absent, the petitioner bankissued a letter which carries the date 31.03.2004 by which, hisservices have been brought to an end by way of punishment.Neither any charge sheet was issued, nor was any enquiryconducted. It was only recorded that there was a meetingbetween the respondent employee along with the management 247.24ca.odt(20)on 29.03.2004 and that Shri Bhujang Shikhare had lost hismental balance since his wife had committed suicide. He hadpleaded guilty for his unauthorized absenteeism and assuredthat no such absenteeism would occur in future. It is, thereafter,that he was removed from service on 31.03.2004 and suchremoval was not to operate as a disqualifcation for futureemployment. 11As such, in the case of Bhujang Sheshrao Shikhare,no ofence can be said to be proved which would amount tomoral turpitude. His gratuity, therefore, cannot be forfeited, inview of Jorsingh Govind Vanjari vs. Divisional Controller,Maharashtra State Road Transport Corporation, Jalgaon,2016 (12) SCALE 511, in which, the Honourable SupremeCourt has held in paragraph 17 as under:-"17.In order to deny gratuity to an employee, it isnot enough that the alleged misconduct of theemployee constitutes an ofence involvingmoral turpitude as per the report of thedomestic inquiry. There must be termination onaccount of the alleged misconduct, whichconstitutes an ofence involving moralturpitude." 12Shri Shahane, learned advocate for the petitionerbank, has canvassed the point of delay of eleven years causedby Bhujang Shikhare in approaching the Controlling Authorityand the Controlling Authority has granted interest on the 247.24ca.odt(21)amount payable. Shri Shahane further submits that theemployer is not at fault in not paying the gratuity since theemployer was under the bonafde belief that Bhujang Shikhareis not entitled for gratuity as he was terminated from service onaccount of remaining unauthorizedly absent for more than twoyears.13This Court has dealt with an identical situation in thematter of Chandrabhaga Machindra Dudhade vs.Mahatma Phule Krushi Vidyapeeth, 2016 (6) ALL MR 357.It is concluded in the said judgment in paragraphs 33 to 38 asunder :-"33.Going by the scheme of the Payment ofGratuity Act and the Rules thereunder, anobligation is cast upon the Employer to makethe payment of gratuity with promptitude. Ifthe University was of the firm belief that theseWorkers are not entitled for gratuity, they couldhave intimated the said Workers knowing fullywell that the provisions of the Payment ofGratuity Act would benefit those Workers whohad worked for five years or more continuously.Having failed to do so, it would not, therefore,mean that the delay has been caused only bythe Workers. 34.The Payment of Gratuity Act strikes a balance.An option is also given to the Workers to makea claim if the Employer has not paid thegratuity or if they are not satisfied with theamount of gratuity paid. As such, the initialburden lay upon the University and failure tomake the payment of gratuity, would then givethe Workers an opportunity of raising a claimunder the Act. In the peculiar backdrop asabove, even if it is presumed that the delay is 247.24ca.odt(22)only at the end of the Workers, I do not findthat the said delay could be termed as being soinordinate or deliberate so as to deprive theWorkers of the gratuity amount. 35.This Court in the matter of Chief ExecutiveOfficer, Zilla Parishad, Beed vs. AssistantLabour Commissioner and Controlling Authority,2014 (3) Mh.L.J. 639 : 2014 (3) All M.R.134, has considered the intent and objectbehind introduction of the Payment of GratuityAct and has traced its history in which theEmployer used to pay some amounts to theiremployees only to express gratitude for havingserved the factory or establishment for a longduration. Before the Act was introduced, it wasan act of gratis. This judgment need not beenlarged on this issue by considering the factthat the Workers have given up the interest onthe gratuity as noted above. Therefore,considering the judgment of this Court in theTransport Manager, Kolhapur MunicipalTransport (supra), the claim for gratuity cannotbe defeated only on the ground of delay.36.The issue of interest has been stronglycontested by both the sides. The submission ofthe University is that since they did not believethat they were required to pay the gratuity tothese Workers, the denial of gratuity amount inthese circumstances, should not entail anyinterest. The University would not be able toshoulder the burden of interest considering thenumber of workers involved in these cases aswell as several other workers, who are said tobe in larger number before the Industrial Court,Ahmednagar.37.As held herein above, since the Payment ofGratuity Act was a legal obligation cast uponthe University, Section 7(3-A) becomessquarely applicable. The Workers have waivedinterest upto 2005. The entire gratuity amount,as assessed by the Controlling Authority, hasbeen deposited by the University before theAppellate Authority on 16.01.2012. As such, the 247.24ca.odt(23)issue of interest will have to be considered onlyfor the period from January, 2006 uptoDecember, 2011, which is a period of six years.38.Considering the fact that the University is not aprivate establishment or industry or a cash richcompany as well as the fact that the Workershave been in litigation from 2006 till this date,over a period of 10 years, I deem it proper togrant interest at the rate of 6% per annum onthe gratuity amounts as are held payable bythe Controlling Authority for the period of sixyears from January, 2006 till December, 2011.Since the amounts have been deposited withthe Appellate Authority in January, 2012, thesaid amounts must have generated interestand the said accumulated interest would alsobe payable to these Workers."14The only diference in this case and ChandrabhagaDudhade case (supra) is that the respondent BhujangShikhare did not move the employer for eleven years forseeking gratuity. Even if it is presumed that the petitionermanagement has willfully not paid the gratuity, BhujangShikhare could have approached the petitioner managementearlier and demanded gratuity. He also was in slumber and theControlling Authority has granted 10% interest per annum for aperiod of about 14 years when the Controlling Authoritydelivered it’s judgment. As such, I fnd that the view taken byme in Chandrabhaga Dudhade (supra) of partly blaming theemployee for sleeping over his rights for which the rate ofinterest was reduced to 6%, is applicable in this case. 247.24ca.odt(24)15In the light of the above, Writ PetitionNo.9672/2018 is partly allowed by reducing the interest onthe gratuity from 10% per annum to 6% per annum from01.05.2004 when it became payable after one month ofrelieving Bhujang Shikhare on 31.03.2004. Consequentially, themanagement shall calculate the rate of interest at 6% perannum from 01.05.2004 till the date the amount is depositedwith the Controlling Authority and the said amount shall then bewithdrawn by Bhujang Shikhare. The amount equivalent to 4%interest for the said period shall be returned to the petitionerbank.16Insofar as Writ Petition Nos.9676/2018 (BalasahebMaruti Dhas) and 10642/2018 (Arun Bhanudasrao Jadhav) and11344/2018 (Gangaram Maroti Mundkar) are concerned, theseemployees are held guilty of misappropriation of large amounts.Departmental enquiries were conducted and the charges wereproved. An order of forfeiture of gratuity was also passed.However, in these cases, the employees have challenged theirdismissal and the matters of Balasaheb Maruti Dhas andGangaram Maroti Mundkar are pending before the CentralGovernment Industrial Tribunal, Nagpur and the matter of ArunBhanudasrao Jadhav is pending before this Court in Writ PetitionNo.482/2016. 247.24ca.odt(25)17Since I am dealing with the issue of what wouldamount to moral turpitude and whether, a criminal caseregistered with the police station followed by conviction in thecriminal case by the court of the competent criminal jurisdictionwould be necessary or not, the decision would equally bindthese three persons. However, I am keeping their Writ Petitions(to the extent of these three persons) pending in this Courtsince they are hopeful of succeeding in their pendingproceedings against their dismissal. If their dismissal is upheld,the verdict of this Court as regards moral turpitude would bindthem. However, if they succeed in getting their dismissalquashed and set aside, they are likely to be entitled for allservice benefts. 18Considering the above, RULE, in Writ PetitionNos.9676/2018, 10642/2018 and 11344/2018. The learnedadvocates waive service on rule in these three petitions. Thesethree matters would be decided fnally after the pending casesof these employees against their dismissal, are decided. Untilthen, these three respondents/ employees would be restrainedfrom withdrawing any gratuity amount and the ControllingAuthority shall invest the said amounts in fxed deposit receiptswith any nationalized bank at the local place, initially for a 247.24ca.odt(26)period of three years and renew such investment until theircases are decided.19In the remaining matters, the issue raised is as towhether, the proved misconduct of the employees wouldamount to moral turpitude and whether, it is necessary thatthey should be convicted by a court of criminal jurisdiction so asto be deprived of the gratuity, by way of forfeiture of gratuity. 20In Sarvjeet Chhotelal Tiwari alias S.C.Tiwari vs.Union of India, through General Manager, CentralRailways, Mumbai and others, 2015 I CLR 24 (BombayHigh Court- Division Bench- Coram : Naresh H. Patil & RavindraV. Ghuge, JJ.), it was held in paragraphs 16 and 17 as under :-"16.We neither have any hesitation nor any doubtin our mind that the misconduct proved to havebeen committed by the petitioner is of a graveand serious nature. We do not intend toenlarge this judgment by referring to severalreported judgments of the Apex Court as wellas many High Courts on the point thatmisappropriation of whatsoever nature,irrespective of whether it involves Rs.1/- orthousands, is a grave and serious misconduct.It is trite that such a misconduct could never betreated leniently on the ground that such amisconduct is of a minor nature. Quantum ofthe amount misappropriated is not theyardstick to be considered while awardingpunishment in cases of misappropriation, theft,fraud etc. 17.It has been held by the Division Bench of thisCourt (Coram : Ranjana Desai & Roshan Dalvi,JJ) in the case of Nilesh R Mandra V/s. Union of 247.24ca.odt(27)India & Others, 2008(4) ALL MR 789 , inparagraphs No.6, 7 and 8 as under :- 6. Though undoubtedly the overcharging isto a very limited extent, it is only with regard tothat decoy passenger. It is in respect of a casein which the petitioner has been watched andcaught. It leaves out the numerous instanceswhen the petitioner may not have beenwatched and caught. Each passenger is avictim. Each passenger has consequently beencheated and defrauded to that extent. The factthat the petitioner could overcharge apassenger whilst being under vigilance andscrutiny showed that the petitioner tookadvantage of either the ignorance or theilliteracy of the victim. It shows a dishonestattitude of the Government servant. It causesfinancial loss to the institution he serves. Itresults in criminal breach of trust between thethird party contracting with the institution asalso qua the petitioner in the service of thatinstitution. It results in misappropriation offunds as it would cause unlawful loss to thethird party and unlawful gain to the petitioner.In a given case, albeit to that limited extent,misappropriation of each small amount maycause unlawful loss to that extent to theinstitution and the corresponding unlawful gainto the petitioner by the use of such dishonestmeans and by misconducting himself. 7. It is in this light that it is a settled positionin law through various judgments of the ApexCourt that the quantum of the amountmisappropriated, stolen or defrauded is not theyardstick to determine the extent of thepunishment. No matter what is the amount theconduct betrays the trust of the institution in itsworker. The institution, therefore, losesconfidence in the worker. That institution,therefore, is entitled, upon proof of themisconduct, to remove such employee. 8. It is argued on behalf of the petitionerthat it is a small act of a small man and thepunishment is, therefore, disproportionate tohis misconduct. We cannot persuade ourselvesnot to consider the victim's point of view. Just 247.24ca.odt(28)as the petitioner is a small man and hascommitted a small misconduct, his victim is anequally a small man. Rs.25/- matters to apassenger taking a second class daily ticketfrom Khadavli to Pune. Such victims would beexpected to prefer a rate lesser even to thatextent to make that small saving. It is onlybecause of his illiteracy or the ignorance of theticket value that he could be cheated, albeit tothat extent. We must, therefore, not turn anelson's eye to the victim's point of view. Inthis light, we must refer to the judgments ofthe Apex Court cited before us by the counselfor the respondents." 21The Honourable Supreme Court has held, in the caseof Allahabad Bank and another vs. Deepak Kumar Bose(Bhola), 1997 I CLR 834, in paragraphs 9 to 12 as under :-"9.What is an ofence involving "moral turpitude"must depend upon the facts of each case. Butwhatever may be the meaning which may begiven to the term "moral turpitude" it appearsto us that one of the most serious ofencesinvolving "moral turpitude" would be where aperson employed in a banking companydealing with money of the general public,commits forgery and wrongfully withdrawsmoney which he is not entitled to withdraw. 10.This Court in Pawan Kumar v. State of Haryanaand another, JT 1996(5) SC 155 = (1996) 4 SCC17 at page 21 dealt with the question as towhat is the meaning of expression "moralturpitude" and it was observed as follows: "Moral turpitude" is an expression whichis used in legal as also societal parlance todescribe conduct which is inherently base, vile,depraved or having any connection showingdepravity". 11.This expression has been more elaboratelyexplained in Baleshwar Singh v. District 247.24ca.odt(29)Magistrate and Collector, Banaras, AIR 1959 All.71 where it was observed as follows: "The expression "moral turpitude' is notdefined anywhere. But it means anything donecontrary to justice, honesty, modesty or goodmorals. It implies depravity and weakness ofcharacter or disposition of the person chargedwith the particular conduct. Every falsestatement made by a person may not be moralturpitude, but it would be so if it disclosesvileness or depravity in the doing of any privateand social duty which a person owes to hisfellowmen or to the society in general. Iftherefore the individual charged with a certainconduct owes a duty, either to anotherindividual or to the society in general, to act ina specific manner or not to so act and he stillacts contrary to it and does so knowingly, hisconduct must beheld to be due to vileness anddepravity. It will be contrary to acceptedcustomary rule and duty between man andman" 12.In our opinion the aforesaid observationscorrectly spell out the true meaning of theexpression "moral turpitude". Applying theaforesaid test, if the allegations made againstthe respondent are proved, it will clearly showthat he had committed an ofence involvingmoral turpitude and, therefore, the appellanthad the jurisdiction to suspend him under theaforesaid clause 19.3. The High Court observedthat there was nothing on record to suggestthat the management had formed an opinionobjectively on the consideration of all relevantmaterial available against the petitioner that inthe circumstances of the case the criminal actsattributed to the petitioner implied depravityand vileness of character and are such aswould involve moral turpitude. It did not regardentering into a criminal conspiracy to committhe aforesaid ofences as being an ofenceinvolving moral turpitude. We one, to say theleast, surprised at the conclusion which hasbeen arrived by the Allahabad High Court.There was material an received before the 247.24ca.odt(30)appellant, in the form of the report of the C.B.I./S.P.E., which clearly indicated the acts ofcommission and commissions, amounting to"moral turpitude' alleged to have beencommitted by the respondent. further more therespondent has been charged with variousofences allegedly committed while he wasworking in the bank and punishment for whichcould extend upto ten years imprisonment (incase the respondent is convicted under SectionI.P.C.)." 22The learned advocates appearing on behalf of theworkers have relied upon the following judgments :-(a)Union Bank of India and others vs. C.G. AjayBabu and another, Civil Appeal No.8251/2018decided on 14.08.2018, (2018) 9 SCC 529.(b)Nanubhai Nichhabhai Desai vs. Deputy GeneralManager, UCO Bank and others, 2017 (4) ALLMR 1 : 2017 (4) Mh.L.J. 271.(c)Netram Sahu vs. State of Chhattisgarh andanother, AIR 2018 SC 1545.(d)State of Jharkhand and others vs. JitendraKumar Srivastava and another, AIR 2013 SC3383.(e)Ashok Munjappa Potphale and others vs. ChiefSecretary, Union of India and others, WritPetition No.1347/2016 (Aurangabad Bench)decided on 17.02.2017. 247.24ca.odt(31)(f)Jaswant Singh Gill vs. Bharat Coking Coal Ltd.and others, 2007 (1) SCC 663.23In Nanubhai Nichhabhai Desai (supra), this Courtdealt with the allegations against the employee and concludedin paragraphs 11, 12 and 13 that unless a case involving anofence is not proved by the management under it’s standingorders or by any court, as the case may be, there cannot be aconclusion that the employee is guilty of an ofence, whichamounts to a misconduct and involves moral turpitude. 24In the State of Jharkhand vs. Jitendra Kumra(supra), the Honourable Supreme Court concluded that afterthe completion of a departmental enquiry, it is permissible forthe Government to withhold pension only if there is a fnding bythe enquiry officer that the employee has committed a gravemisconduct in the discharge of his duties. 25In Jaswant Singh Gill (supra), the HonourableSupreme Court concluded that the gratuity can be forfeitedpartially or wholly when the service of the employee isterminated for any act which constitutes an ofence involvingmoral turpitude provided that such an ofence has beencommitted by him in the course of his employment. 247.24ca.odt(32)26The learned advocates appearing on behalf of therespondents/ employees, who were charged withmisappropriation and their charges were proved and theirgratuity was forfeited, place heavy reliance on the judgmentdelivered by the Honourable Supreme Court on 14.08.2018 inthe Union Bank of India vs. C.G.Ajay Babu (supra),especially on the conclusions in paragraphs 20, 21 and 22,which read as under :-"20.In the present case, there is no conviction ofthe respondent for the misconduct whichaccording to the Bank is an ofence involvingmoral turpitude. Hence, there is no justificationfor the forfeiture of gratuity on the groundstated in the order dated 20.04.2004 that the“misconduct proved against you amounts toacts involving moral turpitude”. At the risk ofredundancy, we may state that therequirement of the statute is not the proof ofmisconduct of acts involving moral turpitudebut the acts should constitute an ofenceinvolving moral turpitude and such ofenceshould be duly established in a court of law. 21.That the Act must prevail over the Rules onPayment of Gratuity framed by the employer isalso a settled position as per Jaswant Singh Gill(supra). Therefore, the appellant cannot takerecourse to its own Rules, ignoring the Act, fordenying gratuity. 22.To sum-up, forfeiture of gratuity is notautomatic on dismissal from service; it issubject to sub-Sections (5) and (6) of Section 4of The Payment of Gratuity Act, 1972."27While considering the judgment delivered inJaswant Singh Gill (supra), which is the foundation in Union 247.24ca.odt(33)Bank of India vs. C.G.Ajay Babu (supra), my learnedBrother (Justice S.C.Gupte) has held in Laxman Balu Deualkarvs. Chief Executive Ofcer, Kolhapur District Central Co-op. Bank Ltd., 2018 III CLR 8, in paragraphs 4, 5 and 6 asunder :-"4.Section 4 of the Act provides for payment ofgratuity. Gratuity is payable to an employee onthe termination of his employment after he hasrendered a continuous service for not less thanfive years. Clause (a) of Sub-section (6) ofSection 4 provides that not-withstandinganything contained in sub-section (1), thegratuity of an employee, whose services havebeen terminated for any act, wilful omission ornegligence causing any damage or loss to, ordestruction of property belonging to, theemployer, is liable to be forfeited to the extentof the damage or loss caused. Clause (b) ofSub-section (6) provides for forfeiture of wholeor partial gratuity (i) if the services of theemployee are terminated for riotous ordisorderly conduct or any other act of violence,or (ii) if the services of the employee havebeen terminated for any act which constitutesan ofence involving moral turpitude, providedit is committed by him in the course of hisemployment. On its plain terms, clause (b)refers to termination for any "act whichconstitutes an ofence involving moralturpitude". The clause does not contemplateactual conviction of the employee concernedfor an ofence involving moral turpitude. Anyact, which if proved, would constitute anofence, would be covered by the first part ofthe clause. Anything done contrary to justice,honesty, modesty or good morals involvesmoral turpitude. If the act constituting anofence is, thus, contrary to justice, honesty,modesty or good morals, it enables theemployer to forfeit, wholly or partially, thegratuity payable to the concerned employee. 247.24ca.odt(34)There is nothing in the clause to suggest thatactual conviction for an ofence involving moralturpitude is a pre-condition for forfeiture ofgratuity under it.5.Sub-section (6) of Section 4, read as a whole,also does not lend itself to any suchconstruction. Clause (a) of it provides forforfeiture of gratuity in case of terminationinter alia for "any act, wilful omission ornegligence causing any damage or loss" to theemployer; whereas as Clause (b)(i) provides forforfeiture in case of termination for "riotous ordisorderly conduct or any other act ofviolence". If these acts or omissions orconducts need not be proved in any court oflaw as a condition of forfeiture and can only bea matter of domestic inquiry, there is no basisfor claiming that the act referred to in clause(b)(ii), namely, "act which constitutes anofence involving moral turpitude", must beproved in a criminal court of competentjurisdiction. The termination may well be basedon proof of such act in a domestic inquiry.Besides, considerations of purposiveinterpretation also negate any suchconstruction of clause (b). As noted by theSupreme Court in the case of Management ofTournamulla Estate v. Workmen (1973) 2 SCC502, the object of a gratuity scheme is toprovide retirement benefits to workmen whohave rendered long and unblemished service tothe employer and thereby contributed to theprosperity of the employer and therefore, itmay not be correct to say that no misconduct,however grave, can be visited with forfeiture ofgratuity or part thereof. Even in a recent case,U.P. State Sugar Corporation Ltd. vs. Kamal Swaroop Tondon,AIR 2008 SC 1235 the Supreme Court has heldthat retiral benefits "are not paid to theemployee gratuitously or merely as a matter ofboon", but they are paid to the employee "forhis/her dedicated and devoted work". In casesinvolving termination of an employee formisconduct, the law of gratuity, i.e. Section4(6), makes a distinction between various actsof misconduct. There are acts or wilful 247.24ca.odt(35)omissions (i) which cause damage or 5 (1973)2 SCC 502 6 AIR 2008 SC 1235 5 / 10 sat wp9044-2017.doc loss to, or destruction of,property belonging to, the employer, (ii) whichamount to riotous or disorderly contract or anyother act of violence, and (iii) which constitutean ofence involving moral turpitude, each ofwhich are visited with diferent consequencesin the matter of forfeiture. In case of (i) theforfeiture is to the extent of damage or losscaused, whilst in case of (ii) and (iii) theforfeiture may be whole (or partial). These acts,in the first place, lead to termination of theemployee and thereafter forfeiture of gratuityin the manner stated by law. If the terminationon the ground of any of these acts is justifiable,the forfeiture may follow. If termination isjustifiable by reason of the act proven in adomestic inquiry, there is no reason why afurther proof of any of these acts in a court ofcompetent jurisdiction may be necessary forapplying the provisions of forfeiture of gratuity.No such proof is insisted upon in case of actslisted in (i) and (ii) above; and there is nolegislative purpose in requiring such proof incase of acts mentioned in (iii) above. 6.A learned single Judge of our court in the caseof Bank of India vs. R.V. Deshmukh, 2015 (1)Bom. C.R. 561, has considered the contentionof the employee sufering forfeiture of gratuity.The learned Judge has held that there is nomerit in the contention that the provisions ofSection 4(6)(b)(ii) authorize forfeiture ofgratuity only where an employee is convictedof an ofence involving moral turpitude."Neither the express wordings of the sub-section nor does the legislative intent", heldthe learned Judge, "support any such strainedconstruction"." 28My learned Brother has then dealt with the viewtaken by the Honourable Supreme Court in Jaswant Singh Gill(supra), in paragraphs 9, 10 and 11 as under :- 247.24ca.odt(36)"9.Learned Counsel for the Petitioner relies on thejudgment of the Supreme Court in the case ofJaswant Singh Gill (supra) and submits thatforfeiture in case of clause (b)(ii) of sub-section(6) of Section 4 can only be ordered "if theemployee has been convicted for an ofenceinvolving moral turpitude". No doubt, whilstdiscussing Section 4(6)(a) and (b) in this case,the Supreme Court does make a reference toconviction for an ofence involving moralturpitude, but that is merely a stray sentence.It cannot be picked out of the context andmade the basis for interpretation of a provisionof law, which is clear in its plain meaning. TheSupreme Court in the case of Jaswant Singh Gillwas considering an order of forfeiture issued bythe disciplinary authority of the employer. Theforfeiture was ordered under disciplinary rulesframed by the employer (called "Coal IndiaExecutives' Conduct, Discipline and AppealRules, 1978"). Rule 27 of those Rules providedfor penalties including "recovery from pay orgratuity of the whole or part of any pecuniaryloss caused to the company by negligence orbreach of order or trust". The short questionbefore the Supreme Court was, whether theprovisions of Payment of Gratuity Act shallprevail over the rules framed by the company.The court held that the rules framed by CoalIndia Limited were not statutory rules and theprovisions of the Act would prevail over theserules; the power to withhold gratuity containedin the rules was subject to the provisions of theAct. Whilst explaining how gratuity was astatutory right, the court set out a gist of theclose-knit scheme of the Act providing forpayment of gratuity and in doing so, made areference to Clause (b) of Sub-section (6) ofSection 4 of the Act, stating that it "provides forforfeiture of the whole amount of gratuity orpart in the event his services had beenterminated for his riotous or disorderly conductor any other act of violence on his part or if hehas been convicted for an ofence involvingmoral turpitude. Conditions laid down thereinare also not satisfied." The court was clearly 247.24ca.odt(37)not considering the interpretation of Section4(6)(b)(ii) of the Act to test whether or notconviction by a criminal court of competentjurisdiction was a condition precedent forforfeiture of gratuity under that provision. 10. Relying on this judgment, High Court ofChhattisgarh in the case of Jitendra KumarShrivastava (supra) has held that in order toinvoke Section 4(6)(b)(ii) of the Act to forfeitthe amount of gratuity payable to anemployee, the condition precedent is that theterminated employee should have beenconvicted for an ofence for the time being inforce and that ofence must be an ofenceinvolving moral turpitude. The High Court hasobserved that unless the aforesaid conditionsare fully established, mere termination ordismissal of an employee concerned would notepso facto constitute an ofence, that too anofence involving moral turpitude, so as toattract the provisions of Section 4(6)(b)(ii) ofthe Act. I am afraid I am unable to concur withthe observations of the High Court ofChhattisgarh. The observations run counter tothe plain terms of Clause b(ii) of sub-section (6)of Section 4 and, as I have observed above,the Supreme Court in Jaswant Singh Gill's caselays down no such proposition of law. 11. There is no substance in the submission thatthe employee cannot be made to face a secondshow cause notice or inquiry for forfeiture. It isno double jeopardy. The first show cause noticeas also domestic inquiry was for termination ofservice; the second is to show cause why, inaddition, gratuity should not be forfeited. Thereason for forfeiture is nothing but terminationon account of proven misconduct in pursuanceof the first show cause notice and inquiry. Thecause to be shown is whether or not thistermination falls within the provisions ofSection 4(6) of the Act. That is perfectlylegitimate. The case of UCO Bank (supra) citedby learned Counsel is on an altogether diferentpoint. That was a case where the employee 247.24ca.odt(38)was terminated upon being found guilty ofmisconduct without quantifying the actual losssufered by the employer as a result of suchmisconduct. The charges against the employeewere (a) failure to protect the interest of thebank, (b) acts contrary to the instructions ofthe superiors and (c) failure to discharge dutieswith integrity. These charges were proved, butnone mentioned actual loss caused to thebank. Thereafter, a separate inquiry wasordered in the same misconduct for provingand quantifying the loss with a view to forfeitgratuity. That was held impermissible by thecourt, holding that employee could not besubjected to two inquires for the samemisconduct."29In my view, considering the law referred to above, itis within the domain of the employer to enquire into the chargeslevelled against an employee. It is the employer’s obligation toprove the charges so as to hold the employee guilty of thecharges levelled upon him. In service jurisprudence, it is not theduty or obligation of the charge-sheeted workman to prove hisinnocence. The principle of onus probandi would exclusivelyapply to an employer who levels the charge of misconductagainst the employee. The burden would never shift(A.Raghavamma vs. A.Chenchamma, AIR 1964 SC 136). Itis the employer who has to prove the misconduct andthereafter, the employee would lead evidence to disprove theallegations levelled upon him by the employer. Eventually, if thecharge is proved, it is for the employer to consider as to 247.24ca.odt(39)whether, the misconduct proved against an employee wouldamount to an act of moral turpitude, before passing an order offorfeiture of gratuity. 30Once an employer proves the charges and theofence held to be committed by an employee appears to beinvolving moral turpitude to any prudent man, an employer canthen invoke Section 4(6)(b)(ii) of the Payment of Gratuity Act,1972 so as to pass an order of forfeiture of gratuity. Section 4(6)(b)(ii) reads as under :-"4.Payment of Gratuity :-(6)Notwithstanding anything contained in sub-section (i) :-(a)......(b)the gratuity payable to an employee may bewholly or partially forfeited.(i)......(ii)if the services of such employee have beenterminated for any act which constitutes anofence involving moral turpitude, providedthat such ofence is committed by him in thecourse of his employment."31Considering the view expressed by my Brother(Justice S.C.Gupte) in Laxman Balu Deualkar (supra) and thelaw holding the feld, I am also of the view that after anemployer proves an ofence in disciplinary proceeding againstan employee, which involves moral turpitude, the employer isnot required to go to the police station and initiate a proceeding 247.24ca.odt(40)for proving the said charge in a court having criminaljurisdiction. 32The view taken in C.G.Ajay Babu (supra) would notapply to the cases in hand since, in the said case, there was abipartite settlement in the appellant bank which provided forforfeiture of gratuity only if fnancial loss was caused to thebank on account of a misconduct, which led to the employee’sdismissal. It was in this backdrop that the Honourable SupremeCourt concluded, in C.G. Ajay Baba case (supra), thatrecourse to Section 4(6) of the Payment of Gratuity Act, 1972for forfeiture of gratuity was not possible as the bipartitesettlement introduced special clauses and protected theworkmen from forfeiture of gratuity until a fnancial loss wasproved to have been caused to the employer.33It is strenuously canvassed that Section 4(6)(b)provides for forfeiting the entire gratuity or a portion of thegratuity. In the matter of Bharath Gold Mines Limited vs.Regional Labour Commissioner, 1987 (1) CLR 189 : ILR1986 Karnataka 2755, the Karnataka High Court held thateven a theft is an act having serious repercussions and a thiefcannot be rewarded with payment of gratuity. The gratuitycould be forfeited wholly or to the extent of the amount stolen,which is the prerogative of the employer. 247.24ca.odt(41)34In the case of Janatha Bazar (South KanaraCentral Cooperative Wholesale Stores Ltd.) vs.Secretary, Sahakari Noukarara Sangha, 2000(7) SCC517 : AIR 2000 SC 3129, the Honourable Supreme Court hasheld that an act of misappropriation is a grave and seriousofence. The amount of money misappropriated is not decisive.The fact that a person has indulged in misappropriation, issufficient to dismiss him from service since such a person doesnot deserve to remain in employment. 35In Kumaon Mandal Vikas Nigam Ltd.. vs. GirjaShankar Pant and others, 2001 (I) CLR 12 : (2001) 1 SCC182 : AIR 2001 SC 24, the Honourable Supreme Court hasconcluded that a person guilty of misappropriation cannot beretained in employment. 36The learned Division Bench of this Court has alsotaken a view in the matter of P.R.Shele vs. Union of Indiaand others, 2008 (2) Mh.L.J. 33 wherein, it was concludedthat the misappropriation cannot be pardoned in anycircumstances. The learned Division Bench of this Court inSarvjeet Chhotelal Tiwari (supra) has also taken the sameview. 37As is evident from the chart reproduced above, theconcerned respondents/ employees have committed grave and 247.24ca.odt(42)serious misconducts of misappropriating large amounts andhave indulged in unauthorized and nefarious dealings with thecustomers of the bank by misusing their authority. These actswould undoubtedly amount to moral turpitude. 38Section 4(6)(b), to the extent of partial deprivation ofgratuity is concerned, could be invoked only if the employer isof the view that the amount misappropriated by the employeecan be recovered from the gratuity amount and themanagement decides to pay the remainder gratuity amount toan employee. Gratuity cannot be forfeited for an ofence of anymagnitude until the said ofence amounts to moral turpitude.Once it amounts to moral turpitude, it would be open to theemployer to consider the gravity of such ofence and thequantum of gratuity that would have normally been payableand the employer can then take a decision as to whether, thegratuity could be partially forfeited. 39Any banking institution operates on the trust andconfdence of it’s customers, depositors or investors. If it fndsthat an ofence committed by an employee is likely to afectsuch trust and confdence of it’s customers, the bank can adopta strict stand and in case of moral turpitude, such management/bank may consider forfeiting a part of the gratuity.
Decision
247.24ca.odt(43)40A loss caused to the employer due to the misconductof the employee can also be a ground for partially forfeitinggratuity to the extent of the monetary loss caused, in the lightof U.P.State Sugar Corporation Ltd. and others vs. KamalSwaroop Tondon, (2008) 2 SCC 41.41In view of the above, as the concerned employeesare guilty of misappropriation of diferent amounts, it will haveto be left to the employer to decide whether, it desires to partlyforfeit the gratuity amount to the extent of the misappropriationor adopt a strict stand of forfeiting the entire gratuity in order tosend out a clear message that the misappropriation in thebanking or fnancial institutions or for that reason in anyestablishment cannot be countenanced. Since the petitionerbank has already taken a stand in these matters that thegratuity amounts of the employees have to be forfeited, I do notfnd that such a decision could be faulted.42In view of the above, it is evident that the ControllingAuthority and the Appellate Authority under the Payment ofGratuity Act, 1972, have not decided these matters with properapplication of mind. They granted gratuity amounts onmisplaced sympathy and such misplaced sympathy would haveno place in the justice dispensation system if the act committed 247.24ca.odt(44)by the employee amounts to moral turpitude and causes graveand serious consequences.43In the light of the above, Writ PetitionNos.12405/2019, 9674/2018, 9675/2018, 9739/2018,10643/2018, 10644/2018, 10645/2018, 10646/2018,10647/2018, 10648/2018 and 11345/2018 are allowed.The impugned judgments are quashed and set aside and theamounts deposited by the employer with the controllingauthority can be withdrawn by the employer bank with accruedinterest, after a period of six weeks from today. 44The pending Civil Applications in these matters wouldnot survive and stand disposed of. (RAVINDRA V. GHUGE, J.)sjk