Smt. Hema Sethi, w/o. late Panchu Sethi, resident of Bahaldih Khudabari, P.O. & P.S v. ………
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 3812 of 2015 ---------- Smt. Hema Sethi, w/o. late Panchu Sethi, resident of Bahaldih Khudabari, P.O. & P.S. Nawagarh, Dist. Dhanbad Versus ………. Petitioner 1. M/s. Bharat Coking Coal Ltd., Munidih Colliery, P.O. Munidih, P.S. Munidih, District Dhanbad. 2. The Project Officer, M/s. BCCL, Munidih Colliery, P.O. Munidih, P.S. Munidih, District Dhanbad. 3. Union of India through the Secretary, Ministry of Labour, Shram Mantralaya, Govt. of India, P.O. & P.S. Shram Sakti Bhawan, New Delhi. ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents
Legal Reasoning
06/ 11.01.2024 Heard the parties. ----------- : :
Legal Reasoning
Ms. Mohua Palit, Advocate Mr. Anil Kumar, ASGI Mr. Ravi Prakash, CGC Mr. Arpan Mishra, Advocate ---------- 2. Petitioner has approached this Court with a prayer for quashing order dated 6/25.05.2015, issued from the Office of Regional Labour Commissioner, Central Dhanbad, whereby the appeal preferred by the respondent-BCCL under the provisions of Payment of Gratuity Act, 1972 has been allowed and the order dated 17.05.2013 passed by the Controlling Authority has been quashed and set aside. 3. Shorn of unnecessary details, the husband of petitioner, late Panchu Sethi was working as Line Mazdoor under the respondent-BCCL since 31.01.1973. It is the case of petitioner that name of her husband was mentioned in Form ‘B’ Register and Identity Card was also issued in favour of her husband. It is the further case of petitioner that her husband was dismissed from service w.e.f. 10.02.1992 and subsequently, he died on 19.07.1992. After death of her husband, the petitioner submitted application in Form –IX before the competent authority for getting the amount of 2 gratuity of her deceased husband. When no action was taken by the respondents for extending the benefits of gratuity of her late husband, the petitioner approached the Controlling Authority under the Payment of Gratuity Act and the said Authority after hearing the parties vide order dated 17.05.2013, allowed the application of the petitioner and directed the respondents to calculate the amount of gratuity and pay the same to the petitioner within a period of 30 days. 4. However, the respondents instead of complying the order passed by the Controlling Authority, preferred an appeal being Appeal No. 28/13 before the Regional Commissioner, Central Dhanbad and the learned Appellate Authority vide order dated 06.05.2015 allowed the appeal preferred by the respondents and set aside the order dated 17.05.2013 passed by the Controlling Authority. Hence, the petitioner has been constrained to knock the door of this Court. 5. Ms. Mohua Palit, learned counsel appearing for the petitioner, assailing the impugned order argues that though the husband of petitioner has been dismissed from services but she is entitled for gratuity under Section 4(6) of the Payment of Gratuity Act. Learned counsel further argues that husband of the petitioner died just after few months from the date of his termination and as such, no appeal was preferred against the order of termination since the petitioner was an illiterate lady and has no knowledge of legal remedy. Learned counsel further argues that the learned Regional Labour Commissioner, Central Dhanbad had failed to take into consideration that the amount of gratuity has be paid to the petitioner under the provisions of Payment of Gratuity Act and the respondents cannot forfeit the same. 6. On the other hand, Mr. Shray Mishra, learned counsel appearing for the respondent-BCCL by vehemently opposing the contention of learned counsel for the petitioner argues that since husband of petitioner was dismissed from service on the ground of misconduct as mentioned in Clause-26.1.6 of the Certified Standing Orders for Workmen of 3 Establishment under BCCL, which constitute an offence of moral turpitude, hence, the payable amount of gratuity has rightly been forfeited. Learned counsel submits that husband of petitioner was held guilty of the charges and the ground for dismissal was fully established, as petitioner was found guilty of forgery, dishonesty and giving false information for the purpose of employment. The petitioner was an impersonator and the same was also established, therefore, the amount of gratuity has been forfeited as per the provisions of Payment of Gratuity Act. 7. Having heard the submissions of learned counsel for the parties and upon perusal of the documents brought on record, this Court is of the considered view that no interference is warranted in the instant writ application. Admittedly, the husband of petitioner was dismissed from the service of the respondent-BCCL w.e.f. 10.02.1992 for proved misconduct and subsequently, he died on 19.07.1992. The husband of petitioner entered into the employment of M/s. BCCL by impersonating himself and by giving false information. The allegation levelled against the petitioner’s husband was duly proved during the enquiry. The said order of dismissal was never challenged by the petitioner or her husband. 8. The Hon’ble Apex Court in case of Y.P. Sarabhai Vs. Union Bank of India, reported in (2006) 5 SCC 377 held that dismissed employee is not entitled to receive gratuity. The relevant para of the said judgment reads as under: “11. We have considered the submissions made by both sides. Irrespective of order of dismissal of the appeal filed by the appellant, we feel that the request fervently made by the counsel for the appellant should be sympathetically considered to meet the ends of justice. The appellant was dismissed from service on 4-9-1998. He is without pay for all these years in view of the order of dismissal. According to the appellant, his wife also died of cancer. It is settled law that a person who is dismissed from service is entitled to get only the provident fund but no gratuity. In the instant case, the total amount of provident fund payable to the appellant comes to Rs 3,36,158 and gratuity comes to Rs 1,49,215. The appellant is liable to pay a sum of Rs 2,60,228 towards outstanding dues to the Bank for the various loans availed by him from the Bank. Therefore, after deducting sum of Rs 2,60,228 from and out of the total 4 the the peculiar totality of all amount of provident fund of Rs 3,36,158 the balance comes to Rs 75,930. The appellant has now crossed 58 years of age and getting a new job at this juncture is also not possible for him. Considering facts and circumstances of this case, we feel that if we direct the Bank to pay a sum of Rs 1,50,000 which includes the balance provident fund of Rs 75,930 after adjusting the loan amount due to the Bank, that would meet the ends of justice. We also make it clear that the appellant will have no other claims against the Bank hereafter. In order to give quietus to this long-standing litigation, we direct the Bank to pay to the appellant by demand draft a sum of Rs 1,50,000 towards full and final settlement of all claims between both the parties. If there is any discrepancy with regard to the amount payable to the appellant by way of provident fund and the loan amount, the appellant is at liberty to approach the Bank for any clarification and if such a letter is received from the appellant, the Bank shall consider the same and do the needful at the earliest.” Further, in case of R.Vishwanatha Pillai Vs. State of Kerala & Ors., reported in (2004) 2 SCC 105, the Hon’ble Apex Court has held that right accrues from a valid appointment and not from a void appointment. The Hon’ble Apex Court also examined the decision of Full Bench of Hon’ble Patna High Court in case of Rita Mishra Vs. Director, Primary Education, Bihar, reported in AIR 1988 Pat. 26, in which the Hon’ble Court held that right to salary, pension and other benefits are entirely statutory in nature in public service. Therefore, these rights spring from a valid and legal appointment to the post. The relevant para of judgment of Hon’ble Apex Court in case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. (supra) reads as under: 17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar [AIR 1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] . The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) “13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal 5 appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of the law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the forgery, no very appointment statutory right can flow from it.” is rested on This Court in case of Manohar Singh Neech (Tak) Vs. Regional Labour Commissioner (C) Dhanbad-cum-Appellate Authority and Ors., reported in 2004 (4) JCR 320 (Jhr), held that Section 4(6)(b) of the Payment of Gratuity Act stipulates that the gratuity payable to an employee may be wholly or partially forfeited 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 during course of his employment. The Hon’ble Court further held that in terms of Section 3(6)(b) of the Payment of Gratuity Act when there is a conviction for offence involving moral turpitude the gratuity is automatically forfeited and there is no need to pass separate order for forfeiting the same. 9. In the case in hand, since the husband of petitioner got employment by impersonating himself which has been proved in the enquiry conducted by the respondents, in view of settled propositions of law, the petitioner is not entitled to receive the amount of gratuity of her deceased husband and rightly the same has been forfeited by the respondents. 10. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, this Court is in full agreement with the observations of the Appellate Authority and no interference is required in the same. 11. Resultantly, the writ petition being devoid of any merit, is hereby dismissed. kunal/- (Dr. S.N. Pathak, J.)