@b m: lg? $§§§§LE aEm§ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No. (agaé /2oo9 Kt Sarju Singh aged about 67 years, S/G Mukhdev Singh, R/o Subhash Block, C.T. C. Korba Petitioner Versus Respondents 1. South Eastern Coalfield Ltd.. through Chairman cum Managing Director, Seepat Road, Bilaspur 2.K/General Manager, Central (E and» M) Workshop, South Eastern Coalfield Ltd” Korba Colliery Korba / 3. Controlling Authority ALC (C), Torwa Naka, Bilaspur WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH z’BILASPUR Writ Petition (S) No, 6306 of 2009 Petitioner Sarju Singh Versus Respondents South Eastern Coalfield Ltd. 85 others WRIT PETITION UNDER ARTICLE 226 85 227 OF THE CONSTITUTION OF INDIA (SB: Hon’ble Shri Satish K. Agnihotri J.) Shri Parag Kotecha, Advocate for the petitioner. Shri N. N. Roy, Advocate for the respondents. ORDERIOran , (Passed on this 16th day of February, 2010) Heard. Learned counsel appearing for the petitioner submits that the respondents/authorities have not paid the amount of gratuity as also the arrears of salary for one year (2002 to 2003) to the petitioner. According to the petitioner, he has retired from service on 31.3.2003, While he was working on the post of Senior Mechanic. Immediately after attaining the age of superannuation the petitioner was entitled to the gratuity to the tune of Rs. 2,85,976/—. Being aggrieved, the petitioner submitted a representation on 15.12.2003 (Annexure P/l). The respondents/authorities directedthe petitioner to obtain a ‘no dues certiiicate’, to which the petitioner replied that he would vacate the official accommodation immediately after obtaining the amount of retiral dues. Learned counsel appearing for the petitioner further submits that the gratuity cannot bewithheld On any count, as is evident from \\ \ \ I / the provisions of Section 4 of the Payment of Gratuity Act, 1972 (for short ‘the Act, 1972’), which provides for payment of gratuity. On the other hand learned counsel appearing for the respondents submits that there was no intention of the respondents/authorities to delay the payment of gratuity to the petitioner in any way. It was on the part of the petitioner himself that he made a request (Annexure R/ 1) to the respondents not to deposit the amount of gratuity with the controlling authority and accordingly the petitioner is not entitled for even interest on the delayed payment of gratuity. Having heard learned counsel appearing for the parties, perusing the documents and records appended thereto, it is clear from the provisions of sub—section (6) of Section 4 of the Act, 1972 that in certain cases gratuity of an employee may be forfeited, sub—section (6) of Section 4 of the Act, 1972 which reads as under : "(6)Notwithstanding anything contained in sub-section (1) (a) the gratuity of an employee; 'whose services have been terminated for any act, willful 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 ( )The gratuity payable to an employee (may be wholly or partially forfeited) (i) 1f the serv1ces 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 ac‘t which constitutes an offence involving moral turpitude, providedlthat such offence is committed by him in the course of his employment. ” 6. The above provision of sub-section (6) of Section 4 of the Act, 1972 is a non-obstante clause, which has to be given over riding effect as that is always an exception to the main provision. The provision of sub—section (6) of Section 4 of the Act, 1972 clearly \ provides that notwithstanding anything éontained in sub‘section (1) the gratuity of an employee, whose services have been terminated for any act, willful 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 and 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 for any act which constitutes an offence involving moral turpitude. 7. On perusal of the papers it is found that the payment of gratuity has been determined. However, it could not be released for want of ‘no dues certificate’ from the employee. There is no dispute with regard to the fact that the petitioner is occupying an official accommodation even after superannuation from service Hon’ble Supreme Court in Wazir Chand Vs. Union of India and othersl, wherein the appellant (therein) even after superannuation continued to occupy the government quarter and after adjusting the dues of the Government, the balance amount of the gratuity, " which was payable, was offered 'to be paid; held that the appellant having unauthorisedly occupied the government quarter was liable to pay thepenal rent in accordance with rules and therefore there is no illegality in those dues being adjusted against the death—cum-retirement dues of the appellant. The ratio laid down in Wazir Chand (supra) was referred with approval in Gorakhpur University and others Vs. Dr. Shitla Prasad Nagendra and otherszl. ‘(2001) 6 scc 596 212001) 6 soc 591 we The stand of the petitioner that ‘no dues certiflcate’ is not ne’cevssary to be submitted before payment of gratuity appears to be contrary to the provisions of law. Sub-section (6) of Section 4 of the Act, 1972 makes it clear that payment of gratuity is not unconditionali Accordingly, having regard to the facts as afore-statd, the respondents are directed to examine the case of the petitioner for grant of gratuity in the light of the provisions of the Act, 1972 and pass appropriate order, as expeditiously as possible, preferably Within six weeks from the date of receipt of a copy of this order. The respondent authorities may also consider the prayer of the petitioner for grant of arrears of salary for one year, if the same is admissible and payable in accordance With law within the same period. In View of the foregoing, this petition stands disposed of. No order asto costs. K. ’ Mrs i “my Sdl— Satish K. Agnihotri Judge K’ Thakur