IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11590 of 2006 Date of decision: 28th May, 2008 M/s Polymers Papers Ltd. … Petitioner Versus Appellate Authority under the Payment of Gratuity Act and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mrs. Abha Rathore, Advocate along with Mr. Kulbhushan Sharma, Advocate for the petitioner. Mr. Salil Sagar, Senior Advocate with Ms. Lovejinder Kaur, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by M/s Polymers Papers Ltd., 12/6, Mathura Road, Faridabad through its Director seeking quashing of order dated 12.12.2005 (Annexure P-6) passed by the appellate authority under the Payment of Gratuity Act, 1972. Gulshan Rai Anand-respondent No.2 was employed as Draftsman in the Engineering Division of the Company on 15.05.1983. It is stated that in year 2002, he was working as a design engineer. It has been averred that respondent- workman was in-charge and responsible of Drawing Section and all important files, documents and drawings were under his control and supervision. It has been further averred that respondent-workman deleted all important files, documents and drawings from the computers of the Civil Writ Petition No. 11590 of 2006 company, thereby caused loss to the company to the extent of lakhs of rupees. For this, petitioner-company lodged complaint on 22nd May, 2002 with the local police and FIR was registered on 21st September, 2002. It has been further stated that respondent-workman had tendered his resignation by post but the same was not accepted by the petitioner-company and respondent-workman was called upon to explain his misconduct. It has been further stated that no explanation was furnished by the respondent-workman in response to the show cause notice. Respondent-workman on 11th December, 2002 instituted an application (Annexure P-1) before the controlling authority under the Payment of Gratuity Act, 1972. He sought payment of gratuity amounting to Rs.55,246/- and in the column meant for ‘date and cause of termination of service, of the employee’, he mentioned ‘resignation on 10.05.2002’. In response to the application (Annexure P-1), company filed reply (Annexure P-2). In the reply, it reiterated that the employee has been responsible for deletion of important documents from the computers and FIR has been lodged and that he has been called upon to explain his misconduct. Respondent-workman appeared as witness and his testimony has been annexed as Annexure P-3, in which he has re-iterated that he tendered his resignation on 10th May, 2002 and demanded gratuity from the company, which had been refused. In cross-examination, he denied that all drawings were under his control and supervision. He further stated that he was not allowed to enter at the gate when he went there after 5-6 months from the date of explanation. Controlling authority under the Payment of Gratuity Act, decided the application of the respondent-workman on 22nd November, 2004 vide Annexure P-4. Controlling authority, in its order, noticed copy of 2 Civil Writ Petition No. 11590 of 2006 resignation letter mark ‘A’ and also the registered letter marked as mark ‘B’ and concluded as under: “In the present matter, the case of the applicant is that he had sent his resignation letter to the respondent company for acceptance. However, it has been admitted by the applicant that he had no evidence to prove that the resignation had been accepted by the respondent. I agree with the contention of the counsel for the respondent that the employer is not bound under the law to accept resignation submitted by an employee. The submission of the respondent is that the applicant was still on the rolls of the company (Ex. RW1/2 to Ex 1/6, Ex. RW1/7 and Ex. RW1/8). On the basis of the evidence led by the parties and oral arguments of the counsel for the parties, it becomes clear that the relationship between the applicant and the respondent as an employee and employer, respectively, has not got served and the applicant is still on the rolls of the company. The case of the applicant, therefore, falls as this is the only ground on which he has claimed that he was entitled to the gratuity amount under Section 4 of the Payment of Gratuity Act, 1972. This issue is, therefore, decided in favour of the respondent and against the applicant.” The application of respondent-workman too was dismissed. Aggrieved against the same, respondent-workman preferred an appeal under Section 7/7 of the Payment of Gratuity Act. The appellate authority came to conclusion that petitioner- company had intentionally not been accepting the resignation only in order to deny the amount of gratuity to the respondent-workman. The findings of the appellate authority are reproduced below: “4. After receiving the appeal both the parties were called on 22.2.2005, 2.3.2005, 11.03.2005, 22.3.2005, 7.4.2005, 27.4.2005, 29.4.2005, 19.5.2005, 31.5.2005, 9.6.2005, 16.6.2005, 15.7.2005, 25.7.2005, 29.7.2005, 16.8.2005, 9.9.2005, 12.9.2005, 3 Civil Writ Petition No. 11590 of 2006 19.9.2005, 6.10.2005, 10.10.2005, 11.10.2005 in order to advance their arguments. During the proceedings mentioned above, the representatives of the management used to get the matter adjourned on one pretext or the other simply to linger on the matter. The management was categorically made aware of the legal complications during the proceedings but the management neither submitted any written statement with regard to the fact the workman was still in their employment nor advanced any arguments with regard to the appeal filed by the appellant win spite of the fact that sufficient opportunities were provided to them to do so. 5. After going through the grounds taken and arguments advanced in this regard by the appellant in the appeal and applying my mind, I am of the considered opinion that the act of the management by not accepting the resignation so submitted by the appellant on 10.5.2002 till date is not justified which could be taken into account that the appellant was still in the employment of the respondent company, as nothing cogent had been down by them against the workmen since had been absenting himself from the duty 10.5.2002. On the other hand the respondent management was also in receipt of Form I on 23.10.2002 duly sent by the appellant on 22.10.2002by registered AD post on which the management deliberately did not take any action in order to prevent the appellant from claiming the gratuity for he was rightly entitled to. When the appellant had already submitted his resignation on 10.5.2002 and since then he had also stopped doing duty with the respondent management also sent Form I for payment of gratuity, there was no occasion to disbelieve the fact that the appellant had not severed his relationship of employee and employer with the management. As such the balance of convenience goes in favour of the appellant. Keeping in view the facts given above and in the interest of natural justice, I am of the firm view that the order dated 22.11.2004 passed by the then Controlling Authority needs to be quashed and the appeal of the appellant deserves to be allowed. I therefore, order accordingly and direct the management to pay Rs.55246/- the amount of gratuity claimed by the appellant together with interest @ 9% p.a. from the date the appellant submitted his resignation i.e. 10.5.2002s.” 4 Civil Writ Petition No. 11590 of 2006 Mrs. Abha Rathore appearing for the petitioner-company has stated that till the resignation is accepted, respondent-workman is not entitled to the payment of gratuity. It has been further stated that petitioner- company is instituting disciplinary proceedings against the employee. We find that the reasons stated by the appellate authority are cogent, just and apt. The petitioner-company cannot sit over the resignation for all times to come. A period of six years is going to elapse. Disciplinary proceedings have made no headway. Non-acceptance of the resignation is simply for the reason that the respondent-workman is denied his due gratuity. Therefore, we cannot appreciate this approach of the petitioner-company. The connected writ petition (CWP No. 11789 of 2006) preferred by the company against another employee, Anoop Singh, respondent-employee therein has also annexed order of acceptance of cancellation report given in the FIR, which has been lodged against the workman, which reads as under: “Present: APP for the State. None on behalf of the complainant. Heard, complainant not appeared so far the against the action of police. File perused, which shows that none has been named as accused by the complainant, hence, notice to the complainant is not required. Consequently, this cancellation report submitted by the police is accepted subject to the condition that investigation will be initiated again as and when any clue of culprit is found. File be returned to the office of S.P., Faridabad. Sd/- Judicial Magistrate Ist Class, Faridabad. 29/9/96” 5 Civil Writ Petition No. 11590 of 2006 It has been held by Hon'ble Apex Court in Balbir Kaur v. Steel Authority of India Ltd., 2000 (6) SCC 493, as under: “As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee.” Non-acceptance of the resignation is not a valid ground, when it is being used for denial of the due right of payment of gratuity to the workman. Hence, we find no merit in the present writ petition and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 28, 2008 rps 6