1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4897 OF 2009 M. S. R. T. C. Yavatmal -vs- The Additional Commissioner of Labour & Appellate Authority and another Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri Maldhure, Adv. for petitioner. Shri C. Jagdale, Adv. for R-3. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 9, 2010. 1) Heard Advocate Sou. Maldhure for petitioner and Advocate Shri Jagdale for respondent, challenges the concurrent orders passed by the competent authority and the appellate authority under Payment of Gratuity Act, whereby the act of withholding gratuity of respondent is found to be illegal and, therefore, petitioner-employer has been directed to pay that amount of gratuity with interest @ 10% from the date on which gratuity became payable till its realization. The amount of gratuity is Rs.84,180/-. 2) Advocate Sou. Maldhure points out that the respondent was dismissed from service for proved misconduct of misappropriation of M.S.R.T.C. revenue and that dismissal attained finality. After that dismissal on 11/10/1999 after departmental enquiry, the grievance about non-payment of gratuity was made for the first time on 27/12/2006 i.e. almost after seven years. She has relied upon a judgment reported at 1993 (67), F.L.R., 585, (M.P., 2 H.C.); M.P. State Road Transport Corporation -vs- Dy. Labour Commissioner M.P., Indore and others, wherein Hon’ble Division Bench of Madhya Pradesh High Court has held that such dismissal is for misconduct involving moral turpitude. The judgment of learned Single Judge of Gujarat High Court reported at 2005, Vol. I, L.L.J, 824; Union Bank of India -vs- K. R. Ajwalia is relied upon to urge that in such circumstances the opportunity of hearing can be given to respondent even today and the petitioner can be permitted to pass proper order. 3) Advocate Shri Jagdale for respondent is opposing the arguments. He states that rate of interest @ 10% is as prescribed in statute and the gratuity admittedly has not been paid. Therefore, there is no question of any delay in the matter and as there is no order of forfeiture, the opportunity cannot be granted. 4) The order of dismissing respondent from service for dishonest conduct has been passed, after departmental enquiry on 11/10/1999. However at that time and thereafter till today no order of forfeiture of gratuity has been passed. Thus, gratuity payable to respondent was withheld without any reason for more than seven years and hence, respondent approached authorities under Sec.7 for release of that amount. Even before said authorities the stand that order of forfeiture has been passed already was not taken. There is no such record even before this Court. There is no stand that later on order of forfeiture has been passed. The learned Single Judge of Gujarat High Court has considered the situation in which order of forfeiture of gratuity was already passed, but then that order came to be passed 3 without giving an opportunity of hearing to the employee. In view of this position, as gratuity was already forfeited, the employer was permitted to hear employee and the lacuna of absence of hearing was allowed to be cured. It is obvious that after the relationship of employer and employee has ceased to exist since 1999 in present facts after about eleven years, such opportunity cannot be given to petitioners. 5) The learned counsel for petitioner has urged that in many matters the opportunity of hearing has not been extended and there are no orders of forfeiture. It is for the management of the petitioner to take appropriate steps in the matter, so as to avoid recurrence of such lapses. The interest awarded is in accordance with the provisions of statute and hence, there is no interference warranted in the present writ petition. Writ petition is dismissed. No cost. JUDGE Khunte