METTUR SPINNING MILLS METTUR DAM DISTRICT Vs. DEPUTY COMMISSIONER OF LABOUR APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT 1972

JUDGEMENT

(1.) THE petitioner in this writ petition is Mettur Spinning Mills, Mettur Dam, Salem District. THE 3rd respondent was employed under the petitioner. On 3rd October, 1975, a charge memo was issued by the petitioner to the 3rd respondent. THE gravemen of the charge was that the 3rd respondent, during the period from February, 1975 to April, 1975 obtained a certificate from the doctor attached to the Employees'State Insurance Dispensary of Mettur Dam that he was sick on a number of days and he got sickness benefits from the Employees'State Insurance Corporation, and during the same period, when the petitioner mills was under lay-off, suppressing the above fact, he presented himself for work is the petitioner mills and obtained lay-off compensation. Admittedly there was no order of suspension of the 3rd respondent, pending enquiry into the above charge, passed by the petitioner. It is stated that an 10th October, 1975 the 3rd respondent wanted time to offer his explanation to the charge and he did not submit his explanation. Nothing further seemed to have been done towards the prosecution of the disciplinary action until March, 1976. On 4th February, 1976 the 3rd respondent wrote a letter to the petitioner resigning from his post. On 5th February, 1976 the petitioner informed the 3rd respondent that his resignation cannot be accepted till the pending charges are cleared. On 7th February, 1976, the respondent addressed a letter to the Labour Commissioner with a copy to the petitioner referring to his resignation and making a demand for settlement of his wages, bonus, gratuity, etc. On 11th February, 1976, the 3rd respondent addressed a letter to the Labour Commissioner with a copy to the petitioner referring to his resignation and making a demand for settlement of his wages, bonus, gratuity, etc. On 11th February, 1976, the 3rd respondent addressed, a letter to the petitioner insisting that his resignation should be accepted since he was not well and was under medical treatment, and further stating that he was not guilty of any misconduct. On 3rd March, 1976, the 3rd respondent addressed a further letter to the petitioner enquiring about the acceptance of his resignation. On 16th March, 1976, the petitioner wrote to the 3rd respondent referring to the payment of bonus for the year 1975-76 and stated that it would be kept in abeyance till the charges pending against the 3rd respondent are enquired into and orders passed thereon. On 18th March, 1976, the 3rd respondent wrote to the petitioner referring to his previous letters, complaining about the non-acceptance of his resignation pleading his inability to continue in work and demanding acceptance of his resignation and settlement of his gratuity and bonus. On 24th March, 1976, the enquiry into the charges was conducted and the 3rd respondent was present at the enquiry and even though he admitted the charges levelled against him, he pleaded that his resignation should be accepted and the loss, if any, suffered by the petitioner can be deducted from the gratuity amounts due to him and the balance paid to him. On 3rd April, 1976, the petitioner wrote to the 3rd respondent calling upon him to come to the petitioner's office on 5th April, 1976 and to have his accounts settled. On 6th April, 1976, the 3rd respondent wrote to the petitioner stating that his health was not all right and hence the amounts due to him may be sent by cheque. Obviously, finding no response from the petitioner, the 3rd respondeat prosecuted an application in Form-I as per the relevant rule under the Payment of Gratuity Act (XXXIX of 1972), hereinafter referred to as 'the Act'. In this form, the 3rd respondent has stated in the column relating to the date and cause of termination of services, that he resigned on 4th February, 1976. THE 3rd respondent followed this up by prosecuting the application dated 2nd June, 1976, in Form-N as per the relevant rule under the Act to the 2nd respondent and this application was received by the 2nd respondent on 4th June, 1976. On 8th June, 1976, the petitioner, on the basis of the finding rendered in the enquiry held on 24th March, 1976, and the report of the Enquiry Officer of even date, passed an order of dismissal of the 3rd respondent from service. On the same date, namely 8th June, 1976, the petitioner presented an application to the Labour Officer, Salem, under section 33 (2) (b) of the Industrial Disputes Act, 1947, for approval of the order of dismissal dated 8th June, 1976. THE said Labour Officer, by order dated 3rd March, 1977, accorded approval to the action taken by the petitioner. After contest by the petitioner of the application presented by the 3rd respondent, the 2nd respondent, on an assessment of the materials placed before him, by order dated 30th August, 1977, directed the petitioner to pay the 3rd respondent a sum of Rs. 5,167-80 as gratuity under the Act. THE petitioner appealed to the 1st respondent and the 1st respondent by order dated 24th October, 1978, declined to interfere in appeal and dismissed the appeal of the petitioner. THE petitioner challenges the orders of respondents 1 and 2 in the present writ petition and seeks quashing of the said orders under Article 226 of the Constitution of India.

(2.) THE learned counsel appearing for the petitioner would submit that the 3rd respondent has been dismissed from service for a misconduct which constitutes an offence involving moral turpitude in the course of his employment and hence he is not entitled for payment of gratuity under the Act and the matter would come within the mischief of section 4 (6) (b) (ii) of the Act and respondents 1 and 2 erred in countenancing the claim of the 3rd respondent for payment of gratuity Mr. N. G. R. Prasad, learned counsel appearing for the 3rd respondent, wants to sustain the award of gratuity in favour of his client by stating that the 3rd respondent resigned as early as 4th February, 1976, and this was in accordance with the concerned Standing Order, which I shell presently refer to, and the resignation became effective on the lapse of 14 days from the date of receipt of the letter of resignation, which date in the present case is 5th February, 1976, and the prosecution of disciplinary proceedings after the resignation became effective was wholly incompetent and has got to be ignored and hence it is not possible to sustain the case of the petitioner that it was a case of termination of the services of the 3rd respondent for a misconduct which involved moral turpitude. THE learned counsel for the 3rd respondent did not go into the question of the character of the misconduct as to whether it involved moral turpitude or not since he wanted to sustain the award of gratuity on the ground that the respondent resigned and this would attract section 4 (1) (b) of the Act entitling the 3rd respondent for payment of gratuity.

(3.) IT is not disputed before me that the letter of the 3rd respondent who was a permanent employee dated 4th February, 1975, was one given by him under the aforesaid clause. IT is true that the expression used is 'resignation or razinsma'. No issue has been raised before me on the ground that on account of the user of the aforesaid expression, the letter of the 3rd respondent dated 4th February, 1976, could not be said to be one issued under clause 13 (iv) of the Standing Orders. Hence we can take it that the 3rd respondent chose to terminate his services pursuant to clause 13 (iv) of the Standing Orders. IT is well settled that mere unilalteral resignation is not enough both in the case of a civil servant and in the case of an on ordinary master and servant governed by a contract'unless the resignation is accepted. A servant, who is bound by the agreement of service to serve till his services are put an end to, must first make an offer intimating his intention to terminate his services and that offer must be accepted. This is the primarp principle governing the contract of service irrespective of the fact whether it is the case of a civil servant or even if the matter is treated as a contract between the parties. But the condition of acceptance can be expressly or impliedly dispensed with either by the rules governing the services or by agreement between the parties. The rules or the contract will regulate the conditions for tendering of resignation as well as for its acceptance.