The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.191 of 2008 Raghabananda Dash …. Appellant Mr. B. Mohapatra, Advocate on instruction of Mr. A. K. Mohapatra, Advocate Orissa Forest Development Corporation -versus- …. Respondent Mr. Santosh Kumar Pattnaik, Senior Advocate assisted by Mr. P. K. Pattnaik, Advocate CORAM: THE CHIEF JUSTICE JUSTICE SAVITRI RATHO ORDER 24.08.2023 Order No. 09. 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Mr. B. Mohapatra, learned counsel appears on instruction of Mr. A. K. Mohapatra, learned counsel for the Appellant and Mr. Santosh Kumar Pattnaik, learned Senior Counsel assisted by Mr. P. K. Pattnaik, learned counsel appears for Orissa Forest Development Corporation-Respondent. 3. By means of this intra-court appeal, the Appellant has challenged the order dated 1st September, 2008 passed by the learned Single Judge in W.P.(C) No.16071 of 2006. By the said order, the learned Single Judge has observed that “fact remains, an amount of Rs.7,11,869/- is sought to be recovered from the petitioner’s Page 1 of 7 gratuity in consonance with the audit report which was confirmed by a Triangular Committee. Law is well settled that against the order passed by a Triangular Committee an appeal lies and the petitioner has not preferred any appeal. In the aforesaid facts this Court cannot issue a Writ of Mandamus directing the Corporation not to adjust the dues from the amount payable to the petitioner towards gratuity. In view of his own letter (Annexure-A to the counter affidavit) the petitioner is estopped from taking such stand. This Court therefore disposes of this Writ Petition giving liberty to the petitioner to file an appeal assailing the decision taken by the Triangular Committee. If such an appeal is filed within a period of
Decision
six weeks hence, the same shall be entertained and disposed of on its own merits. Realization of the amount if any from the gratuity will be subject to result of the appeal.” 4. The Appellant without taking the recourse of filing appeal has challenged the very order passed by the learned Single Judge by means of this appeal. 5. Learned counsel for the Appellant has stated that the opinion of the learned Single Judge is not sustainable inasmuch as when an order is passed against the express provision of the Statute, the order is amenable to the judicial review. Hence, under such Page 2 of 7 circumstances, amongst others, the writ petition can be filed even though there exists an alternative remedy of filing an appeal. In this regard, reference has been made to sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 (the 1972 Act), which provides as follows: “(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 16[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 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.” 6. Learned counsel for the Appellant has contended on the basis of the said provision that the gratuity can be forfeited in the event when an employee has been terminated for any act, willful omission Page 3 of 7 or negligence causing damage or loss to, or destruction of the property belonging to the employer in order to recoup that extent of the damage or loss. The other circumstances under which such forfeiture can be made, wholly or partially, are if the service of such employee is terminated for his riotous or disorderly conduct or any other act of violence on his part and if the service of such employee is 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. 7. There is no dispute that the Appellant was never terminated from service for any ground as aforenoted. As such, learned counsel for the Appellant has contended that in the present case there cannot be any order for recovery from the gratuity as recovery from the gratuity is protected and saved, except the circumstances as noted above. As such, the reliefs prayed in the writ petition being W.P.(C) No.16071 of 2006 ought to have been allowed by the learned Single Judge but the learned Single Judge by the impugned order has dismissed the said writ petition reverting the Petitioner with liberty to file an appeal from the order of the Triangular Committee. The relief sought in the writ petition is that why the decision of the Triangular Committee, as reflected in the order Page 4 of 7 dated 26th December 2005, should not be quashed and why the Petitioner should not be paid a sum of Rs.3,50,000/- towards gratuity with interest @ 12% per annum w.e.f. 1st November 1999, the date of the retirement of the Appellant. 8. The Writ Petitioner (the Appellant herein) has in respect of the recoverable due stated in Para 9 of the writ petition as follows: “The Opp. Party by order No.895 dt. 26.12.2005 issued an order sanctioning Rs.2,50,000/- towards gratuity in favour of the petitioner though under the payment of gratuity Act he was entitled to Rs.3,50,000/-. Further the Opp. Party without disbursing the amount so sanctioned to the petitioner, adjusted the same towards alleged recoverable dues. In the said order the Opp. Party also showed a sum of Rs.7,11,869/- as outstanding recoverable dues against the petitioner allegedly on the basis of audit reports mentioned therein. The Opp. Party further directed that a sum of Rs.4,61,869.00 is to be recovered from the petitioner by instituting legal action after adjustment of Rs.2,50,000/- sanctioned in favour of the petitioner towards gratuity.” 9. Mr. Pattnaik, learned Senior Counsel appearing for the Corporation-Respondent has submitted clearly that no legal action could have been taken by the Corporation against the Appellant under Section 4(6) of the 1972 Act. Page 5 of 7 10. Having appreciated the submission of the learned counsel for the parties, we find there is sufficient force in the submission of learned counsel for the Appellant. The exercise that has been taken by the Respondent-Corporation is wholly in contradistinction to sub-section (6) of Section 4 of the 1972 Act. Hence, the said recovery is bound to be declared as illegal. The liability as determined on the basis of the audit report has been determined without following the due process of law. When the Appellant has categorically stated that he does not admit any liability, a comprehensive inquiry was due and imperative. 11. In the circumstances, we direct the Respondent-Corporation to make payment of gratuity to the extent of Rs.3,50,000/- to the Appellant within a period of 30 days from today. But we are consciously not awarding any interest considering that the audit report cannot totally be overlooked by the Court. 12. Learned counsel for the Appellant has stated that the gratuity has been determined at Rs.2,50,000/- ignoring the amendment carried out in Section 4(3) of the 1972 Act. From the Office Order No.71 dated 18th / 19th January 2007, it is evident that the ceiling of gratuity of Rs.3.5 lakh has been given effect from 24th September 1997 and the said date is anterior to the date of the Appellant’s Page 6 of 7 retirement on superannuation. As such, the Appellant is entitled to get the sum of Rs.3.5 lakh as the gratuity. 13. We have observed that no recovery is permissible in view of the fact that there had been no valid proceeding toward recovery of the purported loss, occasioned by the Appellant. As the Appellant had retired w.e.f. 1st November 1999, the payment of the bare amount of the gratuity would draw the curtain on the controversy as projected in the writ petition. 14. With the above observations and direction, the appeal is disposed of. Consequently, the impugned order dated 1st September, 2008 is set aside. 15. There shall be no order as to costs. 16. A copy of this order be supplied to Mr. Pattnaik, learned Senior Counsel appearing for the Corporation forthwith. (S. Talapatra) Chief Justice (Savitri Ratho) Judge M. Panda Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 15:23:57 Page 7 of 7