The Area Manager, Food Corporation of India v. Rajwant Upadhyay

the background aforesaid, controlling authority has rightly allowed 3 the application which has been upheld by the appellate authority though direction to deny payment of interest till the date of the order of the controlling authority is illegal thus a separate writ petition bearing SB Civil Writ Petition No. 12774/2011 has been preferred to grant relief to the employee by allowing interest at the rate of 10% per annum i.e. by maintaining the order of the controlling authority in toto. I have considered the submissions of learned counsel for the parties and perused the record. It is a case where respondent employee is entitled to payment of gratuity to sum of Rs.3,30,293.00. The amount aforesaid has not been forfeited but adjusted towards the amount recoverable pursuant to the penalty orders quantifying the amount by different orders, an amount of Rs.8,19,000.00 is imposed as punishment thus same order of penalty are placed on record along with the application for taking documents on record. The total sum recoverable against the respondent employee pursuant to the penalty orders comes to Rs.8,19,000.00 and the amount of gratuity payable to him has been adjusted towards recoverable amount. For remaining amount, a civil suit has been filed. 4 Two fold issues have been raised by learned counsel for respondent employee which are in regard to section 13 and section 4(6) of the Act of 1972. I find that as per section 13 of the Act of 1972, the amount of gratuity is not liable to attachment in execution of any decree or order of any civil, revenue or criminal court. I find that the amount is not attached pursuant to the decree or order passed by any civil, revenue or criminal court. It is not even attachment in execution of the decree. It is an amount which is recoverable out of penalty orders passed by the Corporation from time to time and becomes recoverable from the employee thus amount of gratuity has been adjusted towards recovery. Learned counsel for petitioner Corporation placed reliance on the judgment of the Supreme Court in the case of “Secretary, Oil & Natural Gas Commission Ltd. & anr versus V.U. Warrier”, reported as 2005 (3) LLN 74. Therein, recovery of certain amounts were made permissible out of gratuity amount. In the background aforesaid, section 13 does not cast a bar to adjust the amount of recovery towards punishment imposed against an employee. This is more so when it is not attachment pursuant in execution of any decree or order of any civil, revenue or criminal 5 court. Accordingly, section 13 of the Act of 1972 has no application in the matter. Coming to section 4(6) of the Act of 1972, I find that aforesaid provision provides for forfeiture of gratuity. Firstly, it is not a case of forfeiture of gratuity amount but the amount of gratuity has been adjusted towards penalty imposed. The question of forfeiture comes when services of the employee have been terminated for any act of wilful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer. In that case, amount of gratuity can be forfeited to the extent of the damage or loss caused. However, the case in hand is not of forfeiture of gratuity amount but it is an adjustment of the gratuity amount towards the amount recoverable from the employee. In view of above, section 4(6) of the Act of 1972 has no applicable in this case. Another question which has been raised by learned counsel for the employee is that amount has not been quantified so as to make it recoverable from the amount of gratuity. Reference of the judgment of this court in the case of “State Bank of Bikaner & Jaipur versus Controlling Authority under the Payment of Gratuity Act 1972 & Regional Labour Commissioner (Central), 6 Jaipur & ors”, SB Civil Writ Petition No. 7002/2008, decided on

27.3.2012 has been given. On perusal of the above judgment, I find that facts of the above case are distinguishable. In the present matter, orders of penalty itself quantify the amount, thereby, total amount recoverable is Rs.8,19,000/-. In the case cited above, the issue was decided in view of section 4(6) of the Act of 1972 as the punishment was not in terms of money. Accordingly, the judgment aforesaid has no application in the present matter. Learned controlling authority so as the appellate authority failed to consider the aforesaid aspects more so when the judgment of the Punjab & Haryana High Court in the case of “Devinder Singh versus Food Corporation of India & ors”, CWP No.16555 of 2006 covers the issue. Same view was taken by the High Court in the case of “DS Chauhan versus Food Corporation of India & ors”,. CWP No.3291 of 2006, decided on 23.1.2008. It seems that the authority concerned decided the matter in reference to section 4(6) of the Act of 1972 without realising difference between forfeiture of the amount of gratuity and recovery of amount due towards the employee. 7 In the present case, total amount recoverable is more than the amount of gratuity thus the amount of gratuity has been adjusted towards the recoverable amount which comes to Rs.8,19,000/-. The amount aforesaid has been given in different orders of penalty thus no separate exercise is required for the aforesaid purpose. In the light of the discussion made above, I cannot endorse the orders passed by the controlling authority so as the appellate authority thus writ petition is allowed. The orders passed by the controlling authority so as the appellate authority are set aside. bnsharma (MN BHANDARI), J. All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed. (BN Sharma) PS-cum-JW