2014(1) ALL MR 71
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.V. MOHTA AND Z. A. HAQ, JJ.
Shri Ashok S/O. Ramchandra Nirmal Vs. Vidarbha Youth Welfare Society & Anr.
Writ Petition No.18 of 2013
24th July, 2013
Petitioner Counsel: Mr. R.D. WAKODE
Respondent Counsel: Mr. S.G. JAGTAP
(A) Constitution of India, Art.226 - Payment of Gratuity Act (1972), S.7 - Writ petition - Alternate remedy - Respondent employer withholding amount of gratuity receivable by petitioner employee - Ground that petitioner showed false date of birth and enjoyed two additional years of services - Challenge against said action of respondent not covered by S.7 of Gratuity Act - Alternate remedy not available - Writ petition hence, maintainable. (Para 8)
(B) Payment of Gratuity Act (1972), S.4(6) - Forfeiture of gratuity - Ground that petitioner illegally enjoyed services of two additional years on basis of false date of birth - Respondents were aware of wrong date of birth yet permitted petitioner to continue till superannuation - No justifiable explanation for permitting petitioner to continue - Forfeiture of gratuity to recover the salary of said two years, not permissible. (Para 9)
(C) Payment of Gratuity Act (1972), S.4(6) - Forfeiture of gratuity - Permissible only in cases where services of employee have been terminated on account of misconduct - Forfeiture not permissible after superannuation. (Para 10)
(D) Payment of Gratuity Act (1972), Ss.4(1)(a), 7(3) - Interest on gratuity - Payable from what date - Petitioner superannuated on 31.8.2011 - In terms of S.7(3) gratuity was to be paid within one month i.e. till 30.9.2011 - Since payment was not made on unjustifiable grounds, court directed interest on withheld amount at 12% and from 1.10.2011 till amount is actually paid. (Paras 14, 15)
Cases Cited:
K. Krishnamacharyulu Vs. Sri Venkateswara Hindu College of Engineering & Anr., (1997) 3 SCC 571 [Para 6]
Rajendra Kumar Nangia Vs. Rashtriya Chemicals & Fertilizers Limited, 2002(1) ALL MR 1031 =2002 (1) CLR 146 [Para 11]
State of Kerala & Ors. Vs. M. Padmanabhan Nair, (1985)1 SCC 429 [Para 13]
Murari Kawadu Kumbhre Vs. The Maharashtra State Cooperative Tribal Development Corporation Ltd. Nashik & Ors., W.P. No. 1681/2010, Dt.3/7/2013 [Para 13]
JUDGMENT
Z. A. HAQ, J. :- Heard Mr. Wakode, learned counsel appearing for the petitioner and Mr. Jagtap, learned counsel appearing for the respondents.
2. The case of the petitioner is that he was appointed as "Clerk" with respondent no.2-College on 23rd September, 1986 and, at that time, all the relevant documents including School Leaving Certificate were given to the respondents and on the basis of those documents, the entries were taken in the Service Book of the petitioner. The petitioner was promoted to the post of "Accountant" on 7th April 1997. The petitioner had made an application to the respondents on 19th December 2009 requesting for proper fixation of pay scale. On 12th May 2010 respondent no.2 issued communication to the petitioner stating that he had claimed his date of birth as 21st August 1953, but during verification of his personal file by the Grievance Committee, School Leaving Certificate was found which showed the date of birth as "21st August 1951" and, therefore, the petitioner was asked to submit original document regarding his date of birth. The petitioner submitted his date of birth certificate on 5th June 2010. The petitioner retired from service on 31st August 2011 on attaining the age of superannuation.
3. The case of the respondents is that the petitioner had misled the respondents at the time of his appointment and had given School Leaving Certificate showing his date of birth as "21st August 1953" when, in fact, subsequently, it was found that his date of birth was "21st August 1951". According to the respondents, the petitioner had continued in service till 31st August 2011 on the basis that his date of birth was 21st August 1953 and the petitioner had taken undue advantage of continuing in service for two more years, after attaining the age of superannuation. Respondent no.2, therefore, issued show cause notice dated 12th November, 2011 asking explanation of the petitioner in the matter. The petitioner had replied to the show cause notice and given his explanation. Respondent no.2-Principal, after receiving explanation of the petitioner, issued communication dated 27th January 2012 and informed the petitioner that he had enjoyed service period of additional two years on the basis of wrong information given by him regarding his date of birth and consequently, he was paid salary for those two years, which amounted to Rs. 5,03,298/- and that amount was to be recovered from the petitioner. It is stated in the above referred communication that the amount was to be recovered from gratuity amount and other amount payable to the petitioner.
4. The petitioner has challenged this communication dated 27th January 2012 and prayed that the respondents be directed to release gratuity of the petitioner.
5. Mr. Jagtap, learned counsel appearing for the respondents, raised objection that the respondents are not the State, within the meaning of Article 12 of the Constitution of India and, therefore, writ petition praying for directions to them, is not maintainable.
6. Mr. Wakode, learned counsel appearing for the petitioner, has submitted that respondent no.1-Society is administering respondent no.2-College, which was imparting education and discharging public functions and, therefore, the respondents are amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. In support of his submission, he has relied upon the judgment reported in (1997) 3 SCC 571 (K. Krishnamacharyulu Vs. Sri Venkateswara Hindu College of Engineering and another). It is laid down by the Hon'ble Supreme Court that the State has obligation to provide facilities and opportunities to people to avail of right to education and that private institutions cater the needs of providing educational opportunities. The petitioner is admittedly employed in respondent no.2- College and he is seeking to enforce his legal right of being paid amount of gratuity for which he is entitled according to law. In the present case, the petitioner is being deprived of his legitimate claim, arbitrarily and illegally and contrary to the provisions of the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act" and, therefore, we have no hesitation in holding that the writ petition is maintainable.
7. Mr. Jagtap, learned counsel appearing for the respondents, has submitted that the petitioner has alternate efficacious remedy under Section 7(4) (a) of the Act. According to Mr. Jagtap, the petitioner has to make application to the Controlling Authority for adjudication of the dispute as is being raised in the petition.
8. The submission made on behalf of the respondents is not proper and not acceptable. Section 7 of the Act, provides a scheme for determination of amount of gratuity. In this context, Section 7 (4)(a) of the Act provides that any dispute as to the amount of gratuity payable to an employee under the Act or as to the admissibility of any claim of, or in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity. Section 7(4)(b) of the Act lays down that where there is a dispute with regard to any matter or matters specified in clause (a), the employer or employee or any other person raising the dispute may make an application to the controlling authority for deciding the dispute. The situation in the present case does not fall within the ambit of Section 7(4) (a) of the Act, therefore, it cannot be said that the petitioner has to make an application under Section 7(4) (b) of the Act and that alternate efficacious remedy is available to the petitioner.
9. The respondents have tried to justify their action on merits by submitting that the respondents are entitled to recover the amount from the gratuity payable to the petitioner as he has illegally worked for additional period of two years on the basis of wrong information given by him regarding his date of birth. Even, according to the respondents, they were aware that the date of birth of the petitioner is 21st August 1951 and not 21st August 1953 and it is incorporated in the communication dated 12th May 2012, which is on record as Annexure-D to the writ petition. The respondents allowed the petitioner to continue in service till his superannuation i.e. 31st August 2011. The respondents have not given any justifiable explanation for continuing the petitioner's service though they were aware about the difference in the date of birth of the petitioner. It is an admitted fact that the petitioner is paid salary for the work he has done in the College administered by respondent no.1- Society. The respondents cannot be permitted to recover amount of salary paid to the petitioner for the period for which he has worked in the College.
10. The respondents are seeking to recover the amount by withholding gratuity payable to the petitioner. Section 4(1) of the Act provides that gratuity shall be payable to an employee on termination of his employment after he has rendered continuous service for not less than five years. The termination of employment may be on his superannuation or resignation or death or disablement due to accident or disease of the employee. Sub-section (6) of Section 4 of the Act is an exception to sub-section (1) and provides forfeiture of the gratuity wholly or partially in the circumstances mentioned therein. According to sub-section (6) of Section 4 of the Act, gratuity of an employee may be forfeited to the extent of damage or loss caused to the employer if service of that employee has been terminated for any act, wilful omission or negligence on that ground. The gratuity payable to an employee may also be forfeited wholly or partially, if the service of such employee has been terminated for his riotous or disorderly conduct or any other act of violence on his part or service of such employee has been terminated for any act constituting an offence involving moral turpitude. In the present case, the petitioner has retired on attaining the age of superannuation and the respondents cannot take any action by resorting to Section 4(6) of the Act.
11. Mr. Wakode, learned counsel for the petitioner, has relied upon the judgment reported in 2002 (1) CLR 146 : [2002(1) ALL MR 1031] (Rajendra Kumar Nangia vs. Rashtriya Chemicals & Fertilizers Limited) in support of his submission which, in our opinion, squarely covers the present case.
12. Therefore, impugned communication dated 27th January 2012 is quashed and the respondents are directed to pay the amount of gratuity withheld by them, to the petitioner.
13. Mr. Wakode, learned counsel for the petitioner, has also submitted that respondents 1 and 2 have withheld the amount of gratuity illegally and they be directed to pay interest. The learned counsel for the petitioner has relied upon the judgment reported in (1985)1 SCC 429 (State of Kerala & Ors. Vs. M. Padmanabhan Nair) and the judgment delivered by this Court in Writ Petition No. 1681/2010 (Murari Kawadu Kumbhre Vs. The Maharashtra State Cooperative Tribal Development Corporation Ltd. Nashik and others) on 03.07.2013.
14. As per Section 4(1) (a) of the Act, the petitioner is entitled for the gratuity on his superannuation. As per section 7(3) of the Act, the employer is under an obligation to pay the amount of gratuity, within 30 days from the date it becomes payable. The petitioner has been superannuated on 31st August 2011. Therefore, respondents 1 and 2 were under an obligation to pay the amount of gratuity to the petitioner till 30th September 2011. Respondents 1 and 2 have withheld the amount of gratuity payable to the petitioner on unjustifiable grounds. Respondents 1 and 2 are liable to pay interest on the amount of the gratuity payable to the petitioner as laid down in Section 7(3) (a) of the Act.
15. The facts on record show that the petitioner is unnecessarily deprived of his legitimate claim and the payment has been delayed on unjustifiable grounds. The petitioner is entitled for interest @ 12% per annum on the amount withheld by the respondents, the interest being calculated from 1st October, 2011 till the amount is actually paid to the petitioner. The respondents to pay amount of gratuity withheld by them to the petitioner along with interest calculated @ 12% per annum on that amount from 1st October 2011 within one month from today. The amount of interest should be calculated and paid to the petitioner till actual payment is made.