1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4205 of 2009 (Divisional Controller, M.S.R.T.C. v. Smt. Ushatai wd/o Madhukar Shelare and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri V.G. Wankhede, Advocate for Petitioner. Shri N.R. Saboo, Advocate for Respondent no.1. AGP for Respondent Nos.2 and 3. Coram : R.M. Borde, J. Dated : 17 th June, 2010 1. This petition is directed against the order passed by the Assistant Commissioner of Labour and Controlling Authority under the Payment of Gratuity Act, 1972 on 8-7-2008 and confirmed by the Additional Commissioner of Labour and Appellate Authority under the said Act on 16-4-2009. 2. Respondent No.1, who is the legal heir of the deceased-employee, who was serving with the petitioner-employer as a Conductor since 1976, and who had died on 20-2-2005, has filed an application before the Assistant Commissioner of Labour, for grant of gratuity of Rs.96,000/- with interest thereon. 2 3. The petitioner-employer appeared and controverted the claim made by respondent No.1 by filing reply. According to the petitioner-employer, the deceased-employee was dismissed from service on 15-6-2000. He was again given fresh appointment on 12-5-2001. However, his services were again terminated on 31-8-2002. 4. It is contended on behalf of respondent No.1 that the order of termination of the deceased-employee was set aside by the Labour Court and he was granted reinstatement with service benefits from the date of his fresh appointment. On revision filed by the petitioner-employer, the Industrial Court did not grant back wages, but confirmed the rest of the order of the Labour Court. 5. It is contended on behalf of the petitioner-employer that the deceased-employee had worked for a short duration of one year from 12-5-2001 till his dismissal on 31-8-2002. It is, therefore, contended that the deceased-employee was not entitled to the benefit claimed in the application. 6. The Assistant Commissioner of Labour, after considering the rival contentions of the parties, allowed the application tendered 3 by the legal heir of the deceased-employee and held that the employee is entitled to the gratuity of Rs.48,154/- as well as the special gratuity of Rs.37,940/- with interest thereon at the rate of 10% per annum from 20-3-2005. 7. The order passed by the first authority was subjected to challenge before the appellate authority. After hearing the rival contentions of the parties, the appellate authority was pleased to dismiss the appeal of the petitioner-employer. 8. I have perused both the orders passed by the authorities below. 9. It is vehemently contented by the learned counsel for the petitioner that the deceased-employee had worked as a fresh candidate since 12-5-2001 and he did work till he was dismissed from service from 30-8-2002, and, therefore, he is not entitled for any gratuity as claimed in the application. The learned counsel for the petitioner has also invited my attention to the provisions of Section 4(6)(1)(b) of the Payment of Gratuity Act, 1972 and contended that the gratuity payable to the employee is liable to be forfeited on account of termination of his services. 4 10. It is to be noted that Section 4(6)(1)(b) of the said Act authorizes the employer to forfeit the gratuity payable to an employee 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 if the services of such employe 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. 11. In the instant case, the petitioner-employer is unable to prove that the services of the employee had been terminated for the reasons stated in clause (b) of Section 4(6)(1) of the said Act. Considering the provisions of Section 4(6)(1)(a) of the said Act, the employer also cannot withhold the gratuity, as there has been no evidence placed on record to substantiate that any damage, loss or destruction of property belonging to the employer was caused. 12. So far as the argument advanced by the learned counsel for the petitioner-employer that the deceased-employee had been in the employment for one year and his services were terminated on 30-8-2002, is concerned, the Labour Court quashed and set aside the order of dismissal of the employee and he was held entitled for back wages during the relevant period. While entertaining the 5 appeal preferred by the petitioner-employer, the Industrial Court set aside the order of the Labour Court so far as it relates to payment of back wages only and confirmed the rest of the order. 13. Thus, it is clear that the alleged termination of the employee dated 30-8-2002 is non est, inasmuch it has been set aside by the Labour Court and said order is confirmed by the Industrial Court. 14. In this view of the matter, the order passed by the Assistant Commissioner of Labour holding the employee entitled to payment of gratuity cannot be faulted. There is no merit in the petition and same deserves to be rejected. 15. The petition is, therefore, rejected. Judge. pdl.