BHARAT COKING COAL LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition the Petitioner has prayed for quashing the order dated 12.12.08 (Annexure-4) passed by the Controlling Authority under Payment of Gratuity Act, 1972-cum-Assistant Labour Commissioner (Central), Dhanbad-I and the order dated 5.5.2009 (Annexure-5) passed by the Appellate Authority under Payment of Gratuity Act 1972-cum-Regional Labour Commissioner (Central), Dhanbad. By the impugned order Annexure-4 to the writ petition, the controlling authority has held that the applicant-Respondent is entitled to receive gratuity amount of Rs. 3,50,000/- under the Payment of Gratuity Act, 1972. The appellate authority by his order as contained in Annexure-S to the writ petition, has upheld the order of the controlling authority.

(2.) According to the Petitioner, the applicant was not entitled to get the gratuity amount until conclusion of the departmental proceeding, which was pending till the date he had retired. Mr. Mehta submitted that Clause 34.2 of the Conduct, Discipline and Appeal Rules, 1078 (hereinafter referred to as the C. D. A Rules') provides for continuation of the proceeding against an employee even after his retirement. Clause 34.3 of the said Rules gives power to the disciplinary authority to withhold payment of gratuity, for ordering recovery of the whole or part of any pecuniary loss caused to the Company out of the gratuity amount or in case the employee is found guilty of the offence/misconduct, as mentioned in Sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972 or found to have caused pecuniary loss to the Company by his misconduct or negligence, during his service period.

(3.) It has been submitted that since the disciplinary proceeding against the concerned employee is still pending, the Management is entitled to withhold the payment of gratuity till conclusion of the departmental proceeding. Learned controlling authority as well as learned appellate authority failed to take into consideration the said aspect of the matter and have erroneously directed for payment of gratuity to the employee.