Writ Petition No.1066 of 2011

29th February, 2012

Petitioner Counsel: Mr. P.V.BARDE
Respondent Counsel: Mr. A.B.KADETHANKAR

Cases Cited:
Jaya Hind Industries Ltd., Akurdi, Pune Vs. Vilas Vithalrao Takale, 2011(7) ALL MR 188=2011(3) Mh.L.J. 199 [Para 9]
Mackinnon Mackenzie & Co. Pvt. Ltd Vs. Ibrahim Mahommed Issak, AIR 1970 SC 1906 [Para 10]
Lalappa Lingappa and others Vs. Laxmi Vishnu Textile Mills Ltd, AIR 1981 SC 852 [Para 12]
Taylor Vs. Mc.Alpine and Sons & Southern Rly Co., (1924) 130 LT 793(D) [Para 14]
Nagar Palika Nigam Vs. Krishi Upaj Mandi Samiti and others, AIR 2009 SC 187 [Para 15]

JUDGMENT

JUDGMENT :- Heard. Rule. By consent of the learned Counsel, heard finally at the admission stage.

2. The petitioner was convicted in Sessions Case No.95/1991, for an offense under Section 363 and 344 of IPC, directing to undergo rigorous imprisonment for four years and fine, confirmed by High Court.

3. The petitioner was Sub Staff with the respondent from 2nd Sept.,1985. His services are terminated on 24.11.2004. He has, thus, rendered services of 19 years, 2 months. He has moved an application in Form N under sub rule (1) of Rule 10 under Payment of Gratuity Act (for short, "Gratuity Act") however, the same was declined by the controlling authority under the Act and, feeling aggrieved, he has preferred the present writ petition.

4. Learned Counsel for respondent informed that there is alternate remedy of appeal under Section 7(7) of the Gratuity Act read with Rule 18 of the Rules and hence, writ should not be entertained.

5. The recourse to the alternate remedy is not exhausted and, rightly, as the matter questions to interpretation of Section 4(6)(b) (ii) of the Gratuity Act. Hence the writ.

6. Section 4(6)(b) of the Gratuity Act deals with gratuity payable to an employee, as under:

"(4)(6) :Notwithstanding anything contained in sub-section (1), -

.......

(b) the gratuity payable to an employee (may be wholly or partially forfeited)shall be wholly 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."

According to Mr.Kadethankar, there is no scope to interpret Section (4)(6)(b)(ii) to the benefit of the petitioner - that the criminal act committed by him, facing conviction, being not in the "course of employment", he is entitled for gratuity.

7. In Law of Lexicon "course of employment" is indicated as under:

"The course of employment normally begins when the employee reaches his place of work. To extend it to the journey to and from work it must be shown that, in travelling by the particular method and route and at the particular time, the employee was fulfilling an express or implied term of his contract of service. One way of doing this is to establish that the home is the employee's base from which it is his duty to work and that he was travelling by direct route from his home to a place where he was required to work, but that is only one way of showing this; the real question at issue is whether on the particular journey he was travelling in the performance of a duty, or whether the journey was incidental to the performance of that duty and not merely preparatory to the performance of it. If the place where the accident occurs is a private road or on the employer's property, the accident is in the course of the employment because he is then at the scene of the accident by reason only of his employment and he has reached the sphere of his employment. The test is whether the employee was exposed to the particular risk by reason of his employment or whether he took the same risks as those incurred by any member of the public using the highway. (HALLSBURY's Laws of England, Vol.33, 4th Edn., para 490, as referred in Ranjana v. Union of India, (1995) Supp. (2) SCC 601, 606, para 12)."

8. There should not be a contest, that right to receive gratuity is a statutory right. The Gratuity Act provides for a closely knit scheme for payment of gratuity, clause (a) of sub-section (6) of Section 4 of the Gratuity Act speaks of termination of services of an employee for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, but the forfeiture would only be to the extent of damage or loss caused. Section 4(6)(b) of the Act, by itself, makes it clear that it would not favour an employer to forfeit gratuity payable to an employee. It has been settled position (reported in 2007 ILLJ 795 SC) -

"It is not subservient to the Common Law rights of the employer to terminate services of an employee. In our opinion, the absence of any such specific finding, it was not open for respondent no.2 Corporation to forfeit the payment of gratuity."

9. Learned Single Judge of this Court, in the matter of Jaya Hind Industries Ltd., Akurdi, Pune Vs. Vilas Vithalrao Takale (2011(3) Mh.L.J. 199) : [2011(7) ALL MR 188] was dealing with a situation in terms of Section 4, subsection 4 (6)(b)(i) and held that forfeiture of gratuity for disorderly conduct cannot be left to the whims or caprice of the employer. It is observed, "It must be borne in mind that the Payment of Gratuity Act is a welfare legislation to provide reward and security to employees in the evening of their lives for having worked diligently for an employer in order to increase his profits".

Learned Judge observed, "The only interpretation which is possible, in my view, is that the words 'riotous or disorderly" must be read to mean that such acts must be tinged with violence. This means that riotous or disorderly conduct which is violent in nature and causes a major disruption of the working in the establishment could result in the penalty of forfeiture of gratuity. The consequence of a workman found guilty of disorderly behaviour alone cannot lead to the deprivation of gratuity."

10. In Mackinnon Mackenzie & Co. Pvt. Ltd vs Ibrahim Mahommed Issak (AIR 1970 SC 1906), the Honourable Supreme Court, while dealing with matter involving Workmen's Compensation Act, 1923 and employer's liability for compensation, dealt with the term "arising out of and in the course of employment" and, in paragraph No.5, it is observed as under:

"5. To come within the Act the injury by accident must arise both out of and in the course of employment. The words "in the course of employment" mean in the course of work which the workman is employed to do and which is incidental to it. The words "arising out of the employment" are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered. The expression is not confined to the mere nature of the employment but applies to the employment as such to its nature, its conditions, its obligations and its incidents. If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises 'out of employment'. To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act. In Lancashire and Yorkshire Railway Co. v. Highley(1) Lord Sumner laid down the following test for determining whether an accident "arose out of the employment":

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury ? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment, that the workman should have acted as he was. acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury."

11. It is well settled principle that the words of a Statute are first understood in their natural ordinary of popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or there is something in the context or the object of the Statute to suggest to the contrary. The true way is to take the words as the Legislature have given them and to take the meaning which the words naturally imply unless where the construction of those words is controlled either by the preamble or by the context of the words in question, controlled or altered.

12. In the matter of Lalappa Lingappa and others V. Laxmi Vishnu Textile Mills Ltd (AIR 1981 SC 852), the Honourable Supreme Court held in para 13 as under:

"In construing a social welfare legislation, the court should adopt a beneficient rule of construction; if a Section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that case, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the courts must not yield to the temptation of seeking ambiguity when there is none. Craies on Statutes. 6th Edn. Pp.84-91."

13. The term 'moral turpitude' is a rather vague and it may have different meaning in different contexts. The language in Section 4(6)(b)(ii) "in the course of his employment" is preceded by "such offense is committed by him". There could not be any other meaning, the Legislature desired to imply than to construe that, such act involving moral turpitude must have been committed by such an employee in the course of his employment. Reverting to the facts, it is not the case of the respondent employer that the act of so called kidnapping a girl, studying in Xth Standard remaining with the petitioner for 39 days, could be branded to be in the course of his employment. The legal position again needs to be construed that the expression "in the course of employment" suggests the point of time that such act involving moral turpitude must be caused in the course of employment i.e. during the currency of the employment.

14. Lord Atkinson formulated the test in Hewiston case:

"A workman is acting in the course of his employment when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service."

In Taylor v. Mc.Alpine and Sons & Southern Rly Co. ( (1924) 130 LT 793(D), it is observed,

"In that case it has been clearly explained and laid down that where it is no part of the duty of the workman as part of his contract with the employer to use facilities provided for his transport, where there is no obligation or duty on the part of the workman, it cannot be charged as against the employer that what happened at the time when the workman was making use of facilities afforded to him that the employer is responsible for an injury incurred by the workman during the use of those facilities but before the actual employment began."

15. In Nagar Palika Nigam v. Krishi Upaj Mandi Samiti and others (AIR 2009 SC 187), the Honourable Supreme Court observed in para no.15 as under:

"15. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent."

In para no.16, it is observed:

"16. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

16. In the Objects and reasons of the Payment of Gratuity Act, 1972, while dealing with clause 4(1) and sub clause (i), it was suggested that there should be no qualifying period in cases of superannuation / retrenchment / discharge; while qualifying period might be prescribed in cases of resignation and termination of service as a result of disciplinary action and that the qualifying period of five years might be reduced to three years or even less.

Clause 3(b)(ii) is re-numbered as sub-clause 6(b)(ii) - provides that the gratuity is to be forfeited if the services of the employee are terminated for any act which constitutes an offense involving moral turpitude, to treat that such offense is committed by him in the course of his employment or any place which is in the vicinity of the place of employment.

It was observed, " This provision may, however, be interpreted to mean that gratuity might be forfeited if an offense was committed by an employee in the place of employment or in its vicinity, otherwise than in the course of employment. The Committee feel that it should be made clear that gratuity be subjected to forfeiture only if the offense is committed in the course of his employment but not otherwise. In order to provide for the aforesaid matters, the sub clause has been amended suitably".

17. This legal position being made quite clear with the intention of the Legislature, the term "in the course of his employment" employed in sub-clause (ii) will have to be restricted to involvement of moral turpitude while, at the place or in the course of employment. Consequently, rejection of claim for gratuity by interpreting that such criminal act was during the course of employment, being illegal, is set aside. The act of kidnapping a girl had nothing to do with the act of employment. The nature of duties which the petitioner - a sub staff - was discharging, also does not warrant a specific discipline or pursuit amounting to a riotous or disorderly behaviour, while in the employment.

Again, by using the words, "Provided that such offense is committed by him in the course of his employment" the Legislature desired to restrict it to the period of duty, otherwise the terminology could be different. In a situation where the language used is "arising out of his employment", the Legislature meant that injury to a person must be out of his employment, must mean caused by employment. The term "in the course of his employment" in the light of beneficial legislation of Gratuity Act will have to be given plain meaning, such act involving moral turpitude should be restricted while on duty.

The order refusing gratuity by the controlling officer dated 19th April, 2010 is set aside.

Writ Petition allowed in above terms. Rule made absolute.

Petition allowed.