Western Coal Fields Ltd. v. Manohar Govinda Fulzele & Anr.
Yes. A further discretion is conferred on the authority to decide whether the forfeiture should be of the whole or only a part of the gratuity payable, and that depends on the gravity of the misconduct.
Payment of Gratuity Act, 1972 — s.4(5) — s.4(6)(b)(ii) — General Clauses Act — Forfeiture of gratuity — Offence involving moral turpitude — Conviction not required — Departmental enquiry — Extent of forfeiture —
Payment of Gratuity Act, 1972 — s.4(6)(b)(ii) — Forfeiture needs no conviction —
Held: Section 4(6)(b)(ii) requires only that the act for which the employee is terminated constitutes an offence involving moral turpitude. The words "duly established in a Court of Law" cannot be supplied to the provision, and the contrary interpretation was obiter. (¶9)
General Clauses Act — Offence — Standard of proof in a departmental enquiry —
Held further: An offence is any act or omission made punishable by law and does not call for a conviction. A departmental enquiry proceeds on preponderance of probabilities, not on proof beyond reasonable doubt. (¶10)
Payment of Gratuity Act, 1972 — s.4(6) — Notice before forfeiture —
Held further: The Disciplinary or Appointing Authority must decide whether the misconduct constitutes such an offence. Notice must issue to the terminated employee, who may represent on that question and on the extent of forfeiture, which turns on the gravity of the misconduct. (¶10)
Payment of Gratuity Act, 1972 — s.4(6)(b)(ii) — Suppression of date of birth — Extent of forfeiture —
Held further: An appointment obtained by suppressing the actual date of birth is itself illegal, and forfeiture of the entire gratuity was upheld. Where conductors misappropriated meagre amounts, forfeiture is confined to 25%; appeals allowed with that modification. (¶13, 15)
In the Court's own words
Paragraph 10As has been argued by the learned Solicitor General and the learned Counsel appearing for MSRTC, sub-clause (ii) of Section 4(6)(b) enables forfeiture of gratuity, wholly or partially, if the delinquent employee is terminated for any act which constitutes an offence involving moral turpitude, if the offence is committed in the course of his employment. An ‘Offence’ as defined in the General Clauses Act, means ‘any act or omission made punishable by any law for the time being’ and does not call for a conviction; which definitely can only be on the basis of evidence led in a criminal proceeding. The standard of proof required in a criminal proceeding is quite different from that required in a disciplinary proceeding; the former being regulated by a higher standard of ‘proof beyond reasonable doubt’ while the latter governed by ‘preponderance of probabilities’. The provision of forfeiture of gratuity under the Act does not speak of a conviction in a criminal proceeding, for an offence involving moral turpitude. On the contrary, the Act provides for such forfeiture; in cases where the delinquent employee is terminated for a misconduct, which constitutes an offence involving moral turpitude. Hence, the only requirement is for the Disciplinary Authority or the Appointing Authority to decide as to whether the misconduct could, in normal circumstances, constitute an offence involving moral turpitude, with a further discretion conferred on the authority forfeiting gratuity, to decide whether the forfeiture should be of the whole or only a part of the gratuity payable, which would depend on the gravity of the misconduct. Necessarily, there should be a notice issued to the terminated employee, who should be allowed to represent both on the question of the nature of the misconduct; whether it constitutes an offence involving moral turpitude, and the extent to which such forfeiture can be made. There is a notice issued and consideration made in the instant appeals; the efficacy of which, has to be considered by us separately .
Paragraph 15The appointment itself being illegal, there is no question of the terminated employee seeking fruits of his employment by way of gratuity. We uphold the decision of the PSU forfeiting his entire gratuity. However, in the case of conductors (Civil Appeal No._____________ @SLP (C) No.21957 of 2022), we see that the act alleged and proved is of misappropriation of meagre amounts. It is trite that even if minimal amounts are misappropriated it would constitute a misconduct warranting termination, as held by this Court. However, on the question of forfeiture of gratuity, we are of the opinion that the Appointing Authority should have taken a more sympathetic approach. We do not propose to send back the matter for fresh consideration but direct the Appointing Authority to limit the forfeiture to 25% of the gratuity payable and release the balance amounts to the respondent employees.
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