A PADMANABHAN Vs. JOINT COMMISSIONER OF LABOUR

JUDGEMENT

(1.) .Petitioner seeks writ of certiorarified mandamus to quash the orders of the 1st Respondent in P.G.A.No.38 of 2005 on 26.12.2005 and to direct the 2nd Respondent to pay a sum of Rs.59,466/- as gratuity.

(2.) BRIEF facts which led to the filing of the writ petition are as follows: (i) 2nd Respondent is a commercial establishment acting as an agent for other manufacturers. Petitioner joined the services of the 2nd Respondent in 1957 and was deputed to the holding company and he was working as a salesman in charge of sale of CO2. Petitioner was in constant touch with dealers and he was overseeing the maintenance of records relating to cylinders in the CO2 department of Nellikupam Factory.(ii)In March 1990, certain discrepancies relating to receipt of empty cylinders from A.E.Doraiswamy & Co, Pondichery delivered on 30.11.1988 in the cylinder ledger account came to be noticed. It was also noticed that there were manipulation of entries in the cylinder ledger account and the bills and there was payment of gratification to the Petitioner and CO2 clerk Nicholas in March/April 1989, which came to light only in March 1990. After issuing charge memo enquiry was held against the said Nicholas and the Petitioner. Enquiry Officer held that charges against the Petitioner and the said Nicholas proved. (iii)On the basis of the report of the Enquiry Officer on 22.08.1991 second show cause notices were issued to the Petitioner and Nicholas proposing punishment of dismissal. After considering their representations, orders were passed on 10.09.1991 dismissing the Petitioner and Nicholas from service. Nicholas accepted the order of dismissal. (iv)Petitioner raised an industrial dispute challenging his dismissal in I.D.No.146/92 before the II Additional Labour Court, Madras. The Labour Court passed an award dated 14.06.1994 directing reinstatement of the Petitioner with continuity of service and attendant benefits. The 2nd Respondent challenged the award of the Labour Court in I.D.No.146/92 in the High Court, Madras in W.P.No.19032/94. The High Court by its order dated 10.12.1997 allowed the writ petition and set aside the award of the Labour Court and upheld the dismissal of the Petitioner. The writ appeal No.1668/97 preferred by the Petitioner before the Division Bench of High Court, Madras was dismissed on 19.11.1999, against which the Petitioner took up the matter to Supreme Court by way of SLP which was also dismissed on 10.04.2000.(v)After the order of dismissal from service was issued to the Petitioner, on 10.09.1991, a show cause notice was issued to the Petitioner asking to give explanation as to why the gratuity should not be forfeited for his proved misconduct of dishonesty in connection with company's business. On 13.09.1991, the Petitioner submitted his explanation. After taking into consideration the explanation submitted by the Petitioner, on 09.10.1991 orders were passed forfeiting gratuity amount to the Petitioner. (v)Being aggrieved by the order of forfeiting of gratuity amount the Petitioner filed appeal before the Controlling Authority in P.G.No.48/2004. By order dated 29.11.2004 the Controlling Authority under the payment of Gratuity Act held that the dismissal of the Petitioner was for the offence involving moral turpitude and therefore Management was justified in forfeiting the gratuity amount.

(3.) LEARNED counsel for the 2nd Respondent, Mr.V.Karthik, has contended that dismissal of the Petitioner having been upheld by the Honourable Supreme Court, the Court cannot take a different view in respect of payment of gratuity. Drawing Court's attention to the facts the learned counsel for 2nd Respondent would further submit that the 2nd Respondent was justified and well within the limits to forfeit the gratuity of the Petitioner. It was further argued that the act of manipulation of records and receiving illegal gratification would certainly be an offence involving moral turpitude and therefore forfeiture of gratuity by the management was legal and permissible.