Civil Writ Petition No. 3291 of 2006 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: January 23, 2008 D.S. Chauhan ............ Petitioner versus The Food Corporation of India and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri Sunil Panwar,Advocate for the petitioner Shri Heman Aggarwal, Advocate for the respondents HEMANT GUPTA, J. The petitioner, who was earlier working as Assistant Manager, Quality Control, with the respondent Corporation, was charge-sheeted for failing to maintain supervisory control. In pursuance of the said charge- sheet, order of dismissal from service was passed on 30.08.1999. The petitioner was paid 90% of the Contributory Provident Fund vide cheque dated 14.12.2005. The petitioner claims interest on the said amount on account of delayed payment. The petitioner also claimed amount of gratuity for the services rendered with the Corporation for about 30 years 2 months and 24 days. The said request for gratuity was declined vide order dated 15.02.2006, Annexure P-12, on the basis of circular of the Corporation dated 03/07.06.2005. Civil Writ Petition No. 3291 of 2006 [2] Learned counsel for the petitioner has vehemently argued that the gratuity could be withheld only if the order of punishment is on account of causing financial loss to the employer. Since the services of the petitioner have been dispensed with on account of lack of supervisory control, the amount of gratuity could not be withheld. It was also argued that in the circular Annexure P-13, the matter was considered by the respondent- Corporation keeping in view the provisions of Payment of Gratuity Act, 1972 (hereinafter to be referred as “the Act:), Discipline and Appeal Regulations of FCI (Staff) Regulations, 1971 as well as opinion / views of Panel Advocates. It was communicated that, as per section 4(6)(a) of the Act, the gratuity of an employee whose services have been terminated for any act, wilful omission or negligence causing any damage or loss or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. The learned counsel for the petitioner has relied upon clause (4) of the said instructions to submit that since there is no specific order of forfeiture of gratuity in the penalty order of dismissal from service, the order of forfeiture of gratuity is not tenable. Clause (4) of the aforesaid instructions reads as under:- “ It is necessary to make specific mention in the penalty order of dismissal or removal from service or compulsory retirement for forfeiture of gratuity wholly or partially according to the amount of loss ordered to be recovered by the Disciplinary Authority”. Having heard learned counsel for the parties at some length, we do not find any merit in the present petition. The order of punishment is Annexure R-2. The relevant extract from the said order reads as under:- Civil Writ Petition No. 3291 of 2006 [3] “ Now since he has been reverted from the post of A.M. (QC) to the post of T.A.I., the undersigned is competent to take disciplinary action against him. Therefore, keeping in view the facts of the case and also the fact that the charges have been proved and financial loss of over rupees one crore which cannot be recovered from this official. Moreover on examination, I find no merit in the defence plea of the official and also do not have ground to differ with the findings of the Inquiry Officer. I accept the findings of the Inquiry Officer as such and hold the official accountable for the lapses enumerated in the charge sheet served to him. Now, therefore, I, Dhanpat Singh, I.A.S. Sr. Regional Manager, FCI, Haryana, by virtue of the powers conferred under Regulation-56 read with Regulation-54 (IX) of FCI (Staff) Regulation, 1971, hereby impose upon Shri D.S. Chauhan, now Technical Assistant Grade-I, the penalty of dismissal from service which shall also disqualify him for future employment in the Corporation”. No doubt, there is no specific order of forfeiture of gratuity in the order of dismissal passed against the petitioner but the fact remains that the competent authority has considered the fact that charges have been proved against the petitioner and financial loss of over rupees one crore cannot be recovered from the official. Therefore, it is apparent that lack of supervisory control by the petitioner has led to financial loss of rupees one crore to the respondent Corporation. The relevant provisions of Payment of Gratuity Act, 1972, reads as under:- “ 4(6) Notwithstanding anything contained in sub-section (1),- (a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused. Civil Writ Petition No. 3291 of 2006 [4] (b) the gratuity payable to an employee may be wholly or partially 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”. A perusal of the aforesaid provision would show that the gratuity of an employee shall be forfeited to the extent of damage or financial loss caused by his act, wilful omission or negligence. In a case falling under sub-clause (6) (a), the forfeiture of gratuity is mandatory to the extent of loss caused. However, in the case falling under sub-clause (6) (b), the competent authority is required to pass an order for forfeiture of gratuity wholly or partially. In the present case, lack of supervisory control by the petitioner has led to loss of rupees one crore. The gratuity payable was in the tune of Rs.2 lacs or so. Therefore, the entire amount of gratuity has rightly been forfeited. Thus, we do not find any illegality or irregularity in the impugned order passed by the respondent Corporation forfeiting the amount of gratuity. Consequently, the present writ petition is dismissed. (HEMANT GUPTA) JUDGE January 23, 2008 (MOHINDER PAL) ks JUDGE