AIRPORTS AUTHORITY OF INDIA vs V C SAXENA

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 26th April, 2024
+ W.P.(C) 5321/2017
AIRPORTS AUTHORITY OF INDIA ….. Petitioner
Through: Mr. K. K. Rai, Senior Advocate along with Mr. Digvijay Rai, Mr. Archit Mishra, Ms. Medha Tandon, Mr. Anshul Rai and Ms. Sreoshi Chatterjee, Advocates
versus
V C SAXENA ….. Respondent
Through: Ms. Ankita Patnaik, Advocate (Through VC)
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER

CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of the petitioner seeking quashing of the impugned order dated 22nd December, 2016 passed in claim application bearing no. ALC-HQTB/36(104) of 2015, by the learned Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter “the Act”) and Assistant Labour Commissioner (Central) Delhi, New Delhi.
2. The brief facts relevant for the adjudication of the instant petition are as under:
a. It is stated by the petitioner that the respondent was working as a Manager (Accounts) at Indira Gandhi International Airport, Cargo Complex and a criminal complaint was filed against him by the Central Bureau of Investigation for accepting bribe of Rs. 5,000/-.
b. Based on the said complaint, an FIR was registered against the respondent under Section 7, 13 (2), 13 (1) (d) of the Prevention of Corruption Act, 1988. Thereafter, the respondent was taken into custody and remained in judicial custody after which he was placed under suspension w.e.f. 11th July, 2001 by the petitioner.
c. Subsequently, vide order dated 25th April, 2009, the respondent was convicted by the Trial Court and sentenced to rigorous imprisonment for three years along with a fine of Rs. 25,000/-.
d. The respondent assailed the said conviction order before the Coordinate Bench this Court vide Criminal Appeal bearing no. 363/2009 wherein the respondent’s sentence was suspended vide order dated 14th May, 2009 and the said appeal is still pending for adjudication.
e. Thereafter, the petitioner issued a memorandum dated 1st September, 2009 invoking Regulation 33 of AAIE (CDA) Regulations, 2003 and imposed a major penalty by dismissing the respondent from his services with immediate effect.
f. In response to the aforesaid memorandum, the petitioner submitted a representation which was considered and dismissed by the Disciplinary Authority vide order dated 13th October, 2010. Against the said dismissal order, an appeal before the Appellate Authority was also filed by the respondent which was dismissed vide order dated 28th December, 2010.
g. The respondent further filed a writ petition bearing W.P (C) no. 480/2011 before the Coordinate Bench of this Court challenging his dismissal order which was also dismissed vide order dated 7th January, 2013. A Letter Patent Appeal filed against the said order was also dismissed by the Division Bench of this Court in LPA no. 148/2013 vide order dated 8th March, 2013
h. Thereafter, the respondent filed an application dated 10th October, 2013 before the Controlling Authority seeking release of his gratuity from the petitioner which was not pursued by the respondent.
i. The respondent then filed a writ petition bearing W.P (C) no. 5089/2015 before the Coordinate Bench of this Court, thereby, seeking directions against the petitioner to pay gratuity, encashment of earned leave and medical card. The said writ petition was dismissed as withdrawn vide order dated 22nd May, 2015. Furthermore, another writ petition bearing W.P (C) no. 9171/2015 was filed by the respondent before the Coordinate Bench of this Court seeking declaration of Regulation 3 (4) (b) of the AAI (Gratuity) Regulations, 2003 being ultra vires and the same was withdrawn vide order dated 3rd August, 2016.
j. During the pendency of writ petition bearing W.P (C) no. 9171/2015, the respondent filed an application dated 4th April, 2016 before the learned Controlling Authority, thereby, claiming gratuity on the ground that no departmental proceeding is pending against him as on date and termination of his services does not come under Section 4 (6) of the Act. The respondent also claimed parity with respect to the other employees with an allegation that the petitioner was biased against him. The respondent further claimed that as per law, gratuity can only be forfeited to the extent of damage or loss caused to the petitioner.
k. In the above said claim of the respondent, the petitioner filed his reply and after detailed arguments, the learned Controlling Authority, vide order dated 22nd December, 2016, directed the petitioner to pay the amount of Rs. 10,00,000/- to the respondent along with interest @10% per annum w.e.f. the date when it actually became payable, i.e., 13th October, 2010.
l. Thereafter, the learned Controlling Authority issued a show cause notice dated 2nd June, 2017, thereby, asking the petitioner to show cause as to why a recovery certificate under the Act not be issued.
m. Being aggrieved by the impugned order dated 22nd December, 2016, the petitioner has filed the instant petition seeking quashing of the same.
3. Mr. K. K. Rai, learned senior counsel appearing on behalf of the petitioner submitted that the impugned order has been passed without taking into consideration the entire facts and circumstances which makes the same liable to be set aside.
4. It is submitted that the impugned order is bad in law as well as facts since the learned Controlling Authority has acted without jurisdiction in view of the fact that the respondent had earlier filed a writ petition bearing W.P (C) no. 9171/2015 for the same relief, which he unconditionally withdrew on 3rd August, 2016 without taking leave to pursue any other remedy and hence, the impugned order is non-est in the eyes of law.
5. It is submitted that having failed to get relief from this Court in the above said writ petition, the respondent could not approach any other forum as the same amounts to forum shopping and abuse of the process of law.
6. It is submitted that the learned Controlling Authority held that the forfeiture of gratuity is not automatic upon termination of services of an employee and the employer has to take an independent decision in this regard after affording the employee an opportunity of being heard and to determine as to what extent gratuity of the employee is to be forfeited having regards to the facts and circumstances of each case. Hence, forfeiture of gratuity is subjective to the facts of the case.
7. It is submitted that the learned Controlling Authority erroneously arrived at a conclusion that since no opportunity was given to the respondent in this regard, the learned Authority should have directed the petitioner to give the respondent an opportunity to be heard and to decide the extent to which the gratuity of the respondent was to be forfeited instead of granting full gratuity of Rs. 10,00,000/- to the respondent.
8. It is submitted that the learned Controlling Authority has arrived at a finding that the AAI (Gratuity) Regulations, 2003 cannot override the provisions of the Act and the provisions of the Act shall prevail over the rules relied upon by the petitioner. It is further submitted that the said finding is erroneous since the afore stated Regulations are duly notified by the Government of India.
9. It is submitted that the learned Controlling Authority failed to appreciate that the gratuity was claimed by the respondent after a lapse of more than five years and the same is hence barred by the law of limitation.
10. It is submitted that the respondent, being convicted for corruption, is not entitled to any gratuity and the petitioner has rightly forfeited the same in accordance with Regulation 3.3 and 3.4 of the AAI (Gratuity) Regulations, 2003 as well as Section 4(6) of the Act.
11. It is submitted that since the respondent was convicted and the said conviction has not been overturned by any Court of law, therefore, the same has now attained finality. It is further submitted that pursuant to the respondent’s conviction, the petitioner passed the dismissal order following which the respondent’s right to gratuity was forfeited and the same is in accordance with the law.
12. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be allowed and the reliefs be granted as prayed for.
13. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that the same is liable to be dismissed on the grounds of maintainability itself since the petitioner has approached this Court seeking quashing of the impugned order without exhausting the alternative remedy provided under Rule 10 of the Payment of Gratuity Act and Rules, 1972 (hereinafter “Gratuity Rules”).
14. It is submitted that in accordance with the Rules, any appeal against the order of the learned Controlling Authority lies before the Regional Labour Commissioner, however, instead of approaching the Regional Labour Commissioner, the petitioner has approached this Court under writ jurisdiction despite the fact that there exists an alternate remedy and therefore, this writ petition is liable to be dismissed.
15. It is submitted that the instant petition is also liable to be dismissed being devoid of any merit as the gratuity payable to the respondent could not have been forfeited without affording an opportunity to him to defend his case. It is further submitted that admittedly no show cause notice was issued to the respondent, informing him that the petitioner had decided to forfeit his entire gratuity amount of Rs. 10 Lakhs.
16. It is submitted that admittedly no independent decision was taken by the petitioner directing the forfeiture of the gratuity payable to the respondent and consequently, no opportunity was afforded to the respondent to defend his case.
17. It is submitted that the respondent had made multiple representations dated 27th March, 2012, 15th October, 2012, 3rd September, 2013, 18th September, 2013, 10th October, 2013 and finally on 15th December, 2015, to the petitioner regarding release of gratuity however, no reply was received from the petitioner which led the respondent to approach the learned Controlling Authority.
18. It is also submitted that the fact that the respondent had already approached the learned Controlling Authority while writ petition bearing W.P.(C) No. 9171 of 2015 was pending adjudication was informed to this Court pursuant to which vide order dated 3rd August, 2016, the respondent was permitted to withdraw the said writ petition.
19. It is further submitted that there was no requirement of any liberty being granted to the respondent, since he had already approached the learned Controlling Authority before the said writ petition was disposed of by this Court.
20. It is submitted that upon a bare reading of the provision of Clause (ii) sub section (6) of Section 4 of the Act it becomes clear that forfeiture of gratuity under the said provision is not automatic upon termination of services of an employee for the reasons mentioned therein.
21. It is submitted that the words ‘may be wholly or partly forfeited’ connotes that the forfeiture of gratuity is not automatic upon the termination of services of an employee and the employer has to take an independent decision in this regard after affording an opportunity of being heard and to determine as to what extent gratuity is to be forfeited having regard to the facts and circumstances of the case. Before forfeiting the gratuity, it is imperative for the management under Section 4 (6) of the Act to afford an employee a reasonable opportunity of being heard.
22. It is submitted that the learned Controlling Authority has passed the impugned order after taking into consideration the entire facts and circumstances and the same does not suffer from any legal infirmity.
23. Therefore, in view of the foregoing submissions, it is submitted that the instant petition may be dismissed.
24. Heard the learned counsel appearing on behalf of the parties and perused the record.
25. At the outset, it has been contended on behalf of the respondent that the instant petition may be dismissed on the grounds of maintainability itself since the petitioner has failed to exhaust the alternative remedy prescribed under the Gratuity Rules and has approached this Court directly under Article 226/227 of the Constitution of India.
26. Therefore, this Court deems it imperative to first discuss upon the issue of maintainability of the instant petition which has been raised by the respondent.
27. Sub-Section 7 of Section 7 of the Act provides for the provision of appeal where any person aggrieved by an order determining gratuity may prefer an appeal before the Appropriate Government within sixty days. The relevant portion of the same reads as under:
“….7. Determination of the amount of gratuity.—
(7) Any person aggrieved by an order under sub-section (4) may, within sixty days from the date of the receipt of the order, prefer an appeal to the appropriate Government or such other authority as may be specified by the appropriate Government in this behalf:
Provided that the appropriate Government or the appellate authority, as the case may be, may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, extend the said period by a further period of sixty days:
[Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount.]…”

28. In the present petition, after passing of the impugned order, the petitioner did not prefer an appeal before the appropriate government, as warranted under the Act, instead, the petitioner filed the instant writ petition under Article 226/227 of the Constitution of India on the ground that the learned Controlling Authority exceeded its jurisdiction by determining the amount of Rs. 10,00,000/- as gratuity to the respondent.
29. Before adverting to the adjudication of the instant petition, this Court finds it imperative to set out the relevant principles of law where it has been discussed as to whether the powers of a High Court under Article 226/227 of the Constitution of India can be exercised if an alternate remedy has not been exhausted by the party approaching this Court.
30. This Court is of the view that not entertaining writ petitioner under Article 226/227 of the Constitution of India when an efficacious alternative remedy is available is a limitation which is self-imposed by the Courts in order to prevent unnecessary burden on the Writ Courts and to circumvent the parties to assert their legal rights in accordance with the statutes enacted for a specific purpose.
31. This Court is further of the view that the writ jurisdiction must be invoked to protect violation of any legal or fundamental rights and only in the cases when an alternative remedy has been exhausted. However, it is pertinent to mention that there is no bar upon a writ Court which would restrict the invocation of such powers given to it under Article 226/227 of the Constitution of India. The basis of the same lies in the fact that the writ Courts have discretion to grant reliefs under the above said provision if the party invoking writ jurisdiction has made out an exceptional case warranting interference or if there exist sufficient grounds to invoke the extraordinary writ jurisdiction. In this regard, this Court deems it appropriate to refer to the judgment of the Hon’ble Supreme Court passed in CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603, wherein, the following was observed:
“…11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh [AIR 1958 SC 86] , Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] , Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499])

15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation….”

32. Upon perusal of the above stated judgments, it is made out that the Constitution Bench of the Hon’ble Supreme Court has time and again interpreted the powers of a writ Court and held that the power so conferred to a High Court is very wide since the issuance of a writ is the discretion of Court. In case the High Court is satisfied that the aggrieved party has an alternate remedy, it can refuse to exercise its powers, however, in extraordinary circumstances, the Court may exercise the power if it comes to the conclusion that there has been breach of principles of natural justice or the due procedure has not been adopted.
33. In one of the earlier judgment of the Hon’ble Supreme Court titled as State of U.P. v. Mohd. Nooh, 1957 SCC OnLine SC 21, a five Judge bench categorically observed that, provided the requisite grounds exist, a writ of certiorari may be issued even though a right of appeal has been conferred by a statute. Relevant paragraphs of the above said judgment are as under:
“…10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury’s Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster General Ex parte Carmichael [(1928) 1 KB 291] a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read [(1942) 1 KB 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction. At p. 284 Viscount Caldecote, C.J. observed:
“It remains to consider the argument that the remedy of certiorari is not open to the applicant because others were available. It would be ludicrous in such a case as the present for the convicted person to ask for a case to be stated. It would mean asking this Court to consider as a question of law whether Justices were right in convicting a man without hearing his evidence. That is so extravagant an argument as not to merit a moment’s consideration. As to the right of appeal to quarter sessions, it may be that the applicant could have had his remedy if he had pursued that course, but I am not aware of any reason why, if in such circumstances as these, he preferred to apply for an order of certiorari to quash his conviction, the court should be debarred from granting his application.”
Likewise in Khurshed Modi v. Rent Controller, Bombay [AIR (1947) Bom 46] it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. To the same effect are the following observations of Harries, C.J., in Assistant Collector of Customs v. Soorajmull Nagarmul [(1952) 56 CWN 453, 467] at p. 470:
“There can, I think, be no doubt that Court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appears to me that there can be cases where the Court can and should issue a certiorari even where such alternative remedies are available. Where a court or tribunal, which is called upon to exercise judicial or quasi-judicial functions discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice then it appears to me that the court can and must interfere.”
It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari. (See Corpus Juris Secundum, Vol. 14 Article 40, p. 189). If, therefore, the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi-judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e.g. by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision? The case of In re Authers [(1889) LR 22 QBD 345] referred to in Janardan Reddy case [1951 SCC 217 : (1951) SCR 344] furnishes the answer. There the manager of a club was convicted under a certain statute for selling beer by retail without an excise retail licence. Subsequently he was convicted of selling intoxicating liquor, namely, beer without a license under another statute. Upon hearing of the later charge the Magistrate treated it as a second offence and imposed a full penalty authorised in the case of a second offence by the latter statute. His appeal to the quarter sessions having been dismissed, he applied for a writ of habeas corpus and it was granted by the King’s Bench Division on the ground that the Magistrate could not treat the later offence as a second offence, because it was not a second offence under the Act under which he was convicted for the second time. Evidently the point was taken that if there had been any error, irregularity or illegality committed by the Magistrate, the quarter sessions could have on appeal corrected the same and that the quarter sessions having dismissed the appeal, the Court of Queen’s Bench Division could not issue the writ of habeas corpus. This was repelled by the observation of Hawkins, J.:
“This is true as a fact, but it puts the prosecution in no better position, for if the Magistrate had no power to give himself jurisdiction by finding that there had been a first offence where there had been none, the Justices could not give it to him.”….”

34. The Hon’ble Supreme Court in one of its recent judgments namely Godrej Sara Lee Ltd. v. Excise & Taxation Officer, 2023 SCC OnLine SC 95 reaffirmed the view taken by it in earlier judgments holding that the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him, the High Court cannot mechanically take the said ground for dismissing the writ petition. It is axiomatic that the High Courts, bearing in mind the facts of each particular case, have a discretion whether to entertain a writ petition or not. The relevant extracts of the said judgment are as under:
“…4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
5. A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in 1958 SCR 595 (State of Uttar Pradesh v. Mohd. Nooh) had the occasion to observe as follows:
“10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury’s Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. ***”..”

35. Adverting to the issue at hand, the petitioner in the instant case has sought for issuance of a writ in the nature of certiorari by submitting that the learned Controlling Authority has failed to appreciate that the respondent having been convicted for corruption charges cannot be granted the gratuity amounting to Rs. 10,00,000/-.It has been argued on behalf of the petitioner that the same is in violation of Section 4 (6) (ii) of the Act since upon finding an employee guilty of moral turpitude, his gratuity ought to be forfeited either wholly or partially. The petitioner has contended that the respondent was found guilty of corruption charges and even after the same was on the record of the learned Controlling Authority, it granted the respondent full gratuity which is an error of law.
36. This Court is of the view that although the petitioner failed to exhaust the alternate remedy provided under Section 7 sub section 7 of the Act, certain arguments have been made before this Court which demonstrates that there are some errors apparent on the face of the record which makes this Court inclined to exercise its extraordinary powers conferred under Article 226/227 of the Constitution of India.
37. Furthermore, bearing in mind that the present petition was filed in the year 2017 and as of now almost eight years have passed. Therefore, it is not expedient to reject the instant petition only on the grounds of maintainability as after the lapse of eight years it would be unreasonable to direct the petitioner to seek the alternative remedy by way of filing an appeal under sub section 7 of Section 7 of the Act.
38. Accordingly, in light of the above observations, this Court finds the instant petition maintainable and the same shall now be decided upon its merit.
39. Now delving into the merits of the instant petition and in order to adjudicate upon the merits, this Court deems it fit to frame the following issue:
Whether the learned Controlling Authority rightly granted the gratuity of Rs. 10,00,000/- to the respondent?

40. It is the case of the petitioner that the learned Controlling Authority has wrongly passed the impugned order as it failed to take into account the principle enumerated qua Section 4 (6) of the Act as per which, on account of commission of an act involving ‘moral turpitude’ by the responent employee, his gratuity has to be forfeited either partially or wholly. The learned senior counsel appearing on behalf of the petitioner contended that the respondent having being convicted by the Trial Court on the charges of corruption cannot be held to be entitled to gratuity and even if the learned Controlling Authority was of the opinion that the petitioner erred by not giving the respondent an opportunity to be heard, it should have remanded back the matter for fresh adjudication. It has also been contended that the learned Controlling Authority erred by failing to direct the petitioner to give the respondent an opportunity to be heard and further adjudicate upon the extent to which the gratuity of the respondent was to be forfeited instead of granting full gratuity of Rs. 10,00,000/-. Therefore, the impugned order may be set aside.
41. In rival submissions, it has been contended that the impugned order has been passed in accordance with the law and there is no illegality of any kind thereto. Furthermore, the learned Authority rightly held that the petitioner’s failure to give the respondent an opportunity to be heard is against the law. It has been also contended that the learned Controlling Authority rightly appreciated the settled principles of law qua the provision of ‘moral turpitude’ whereby, the forfeiture of the respondent’s gratuity is not automatic upon termination and the same has to be considered on the basis of peculiar facts and circumstances. Therefore, the instant petition being bereft of any merit is liable to be dismissed.
42. Before discussing the issue, it is relevant to set out the settled law pertaining to the principle of forfeiture of gratuity. The provision for the same is provided under Section 4 (6) of the Act, which reads as follows:
“….4. Payment of gratuity.—
(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;

(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 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….”

43. Perusal of the above stated provision states that forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a Court of competent jurisdiction. For the purposes of application of Section 4 (6) of the Act, the legislature has imposed a precondition stating that the services of the concerned employee should have been terminated for any ‘act’ and such ‘act’ should be about wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, and in such event, the gratuity shall be forfeited to the extent of the damage or loss so caused.
44. Furthermore, for the purposes of application of Section 4(6)(b) of the Act, the employee’s services should be terminated for his such riotous or disorderly conduct or any other act of violence, etc on his part, or the services of such employee must have been terminated for any act constituting moral turpitude, and only then the gratuity can be forfeited either wholly or partially.
45. The Hon’ble Supreme Court has interpreted the above said provision in the judgment of Jaswant Singh Gill v. Bharat Coking Coal Ltd., (2007) 1 SCC 663, wherein, the Hon’ble Court enunciated the objective and applicability of the above said provision by stating that the Act is a social welfare legislation containing the schemes of payment of gratuity to the employees who have rendered their services for prolonged years. It was further held that the Act not only creates a right for grant of gratuity but also lays down the circumstances where the said right could be denied. The said denial of gratuity is provided under Section 4 (6) of the Act and it contains certain circumstances as to when gratuity could be denied. Relevant extracts of the said judgment are as follows:
“…13. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. As noticed hereinbefore, sub-section (6) of Section 4 of the Act contains a non obstante clause vis-à-vis sub-section (1) thereof. As by reason thereof, an accrued or vested right is sought to be taken away, the conditions laid down thereunder must be fulfilled. The provisions contained therein must, therefore, be scrupulously observed. Clause (a) of sub-section (6) of Section 4 of the Act speaks of termination of service of an employee for any act, wilful omission or negligence causing any damage. However, the amount liable to be forfeited would be only to the extent of damage or loss caused. The disciplinary authority has not quantified the loss or damage. It was not found that the damages or loss caused to Respondent 1 was more than the amount of gratuity payable to the appellant. Clause (b) of sub-section (6) of Section 4 of the Act also provides for forfeiture of the whole amount of gratuity or part in the event his services had been terminated for his riotous or disorderly conduct or any other act of violence on his part or if he has been convicted for an offence involving moral turpitude. Conditions laid down therein are also not satisfied.

14. Termination of services for any of the causes enumerated in sub-section (6) of Section 4 of the Act, therefore, is imperative.
***
19. Reliance has been placed by Mr Rana Mukherjee, learned counsel appearing on behalf of Respondent 1 on Tournamulla Estate v. Workmen [(1973) 2 SCC 502 : 1973 SCC (L&S) 510 : (1973) 3 SCR 762] . In that case, this Court was concerned with a scheme of gratuity. The scheme contained a provision which was in pari materia with Section 4(6)(b) of the Act. The said scheme was upheld stating: (SCC p. 504, para 4)
“Although the provisions of this statute would not govern the decision of the present case, the importance of the enactment lies in the fact that the principle which was laid down in the Delhi Cloth Mills case [Delhi Cloth & General Mills Co. Ltd. v. Workmen, AIR 1970 SC 919] with regard to forfeiture of gratuity in the event of commission of gross misconduct of the nature mentioned above, has been incorporated in the statute itself. Even otherwise, such a rule is conducive to industrial harmony and is in consonance with public policy.”

20. Reliance has also been placed upon a decision of the Karnataka High Court in Bharath Gold Mines Ltd. v. Regional Labour Commr. (Central) [1986 Lab IC 1976 : (1986) 53 FLR 340 (Kant)] . In that case it was held that before the amount of gratuity can be directed to be forfeited, an opportunity of hearing must be given. The said decision may not have any application to the fact of the present case as opportunity of hearing was given both to the employer as also the employee by the authority.

21. Reliance placed by Mr Mukherjee on a decision of this Court in D.V. Kapoor v. Union of India [(1990) 4 SCC 314 : 1990 SCC (L&S) 696 : (1990) 14 ATC 906] is misplaced. Therein having regard to the provisions of the Civil Services and Conduct Rules, it was held that a departmental proceeding can be continued even after allowing the delinquent employee to voluntarily retire. However, therein the Rules provided for withholding or withdrawing pension permanently. In that case itself, it was opined: (SCC pp. 319-20, para 10)
“The right to gratuity is also a statutory right. The appellant was neither charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.”

46. The judgment of Jaswant Singh Gill (Supra) was also followed by the Hon’ble Supreme Court in Union Bank of India v. C.G. Ajay Babu, (2018) 9 SCC 529, wherein, the Hon’ble Court discussed as to when forfeiture of gratuity is permissible. Relevant paragraphs of the same are as follows:
“..15. Under sub-section (6)(a), also the gratuity can be forfeited only to the extent of damage or loss caused to the Bank. In case, the termination of the employee is for any act or wilful omission or negligence causing any damage or loss to the employer or destruction of property belonging to the employer, the loss can be recovered from the gratuity by way of forfeiture. Whereas under clause (b) of sub-section (6), the forfeiture of gratuity, either wholly or partially, is permissible under two situations: (i) in case the termination of an employee is on account of riotous or disorderly conduct or any other act of violence on his part, (ii) if the termination is for any act which constitutes an offence involving moral turpitude and the offence is committed by the employee in the course of his employment. Thus, clause (a) and clause (b) of sub-section (6) of Section 4 of the Act operate in different fields and in different circumstances. Under clause (a), the forfeiture is to the extent of damage or loss caused on account of the misconduct of the employee whereas under clause (b), forfeiture is permissible either wholly or partially in totally different circumstances. Clause (b) operates either when the termination is on account of: (i) riotous, or (ii) disorderly, or (iii) any other act of violence on the part of the employee, and under clause (ii) of sub-section (6)(b) when the termination is on account of any act which constitutes an offence involving moral turpitude committed during the course of employment.

16. “Offence” is defined, under the General Clauses Act, 1897, to mean “any act or omission made punishable by any law for the time being in force” [Section 3(38)].

17. Though the learned counsel for the appellant Bank has contended that the conduct of the respondent employee, which leads to the framing of charges in the departmental proceedings involves moral turpitude, we are afraid the contention cannot be appreciated. It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law. It is not for the Bank to decide whether an offence has been committed. It is for the court. Apart from the disciplinary proceedings initiated by the appellant Bank, the Bank has not set the criminal law in motion either by registering an FIR or by filing a criminal complaint so as to establish that the misconduct leading to dismissal is an offence involving moral turpitude. Under sub-section (6)(b)(ii) of the Act, forfeiture of gratuity is permissible only if the termination of an employee is for any misconduct which constitutes an offence involving moral turpitude, and convicted accordingly by a court of competent jurisdiction.
***

19. In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude. Hence, there is no justification for the forfeiture of gratuity on the ground stated in the order dated 20-4-2004 that the “misconduct proved against you amounts to acts involving moral turpitude”. At the risk of redundancy, we may state that the requirement of the statute is not the proof of misconduct of acts involving moral turpitude but the acts should constitute an offence involving moral turpitude and such offence should be duly established in a court of law.

47. Upon perusal of the above judgments, this Court is of the view that for the forfeiture of gratuity under Section 4 (6) of the Act, merely terming that the act of the employee constitutes ‘moral turpitude’ is not the only factor which is needed to be considered, rather, after having been found guilty of the alleged act involving moral turpitude, such employee must be terminated.
48. The above stated observation of this Court has also been followed by the Hon’ble Supreme Court in Jorsingh Govind Vanjari v. Maharashtra SRTC, (2017) 2 SCC 12, relevant paragraph of which is as under:
“…15. In order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry. There must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude….”

49. The settled position of law qua the principle of moral turpitude has been discussed in the preceding paragraphs, wherein, it has been shown that in order to forfeit the gratuity, termination of the employee on account of act constituting moral turpitude is necessary. It has further been inferred from the perusal of the above judgments of the Hon’ble Supreme Court that it is true that the said forfeiture is not automatic or mandatory and it is purely the employer’s discretion which can be decided on the basis of peculiar facts and circumstances. The said inference can be drawn from the fact that the word ‘may’ is used in the provision while stating that forfeiture may be in part or in whole.
50. Since the settled legal principle has now been enumerated, this Court will now delve into the merits of the instant petition.
51. The learned Controlling Authority passed the impugned order whereby it directed the petitioner to pay the respondent an amount of Rs. 10,00,000/- payable towards his gratuity. The relevant extracts of the same are reproduced herein below:

“…The applicant was working as Asstt. Manager (F&A) with the management. He was charged with the offence of accepting bribe and an FIR was registered against him under section 7, 31 (2), 13 (1) (d) of the Prevention of Corruption Act. The court held him guilty of the offences charged and sentenced him. He challenged the order of the special Court in the High Court by filing an appeal No. 363/2009. The Hon’ble Delhi High Court suspended the sentence vide order dated 14.05.2009 and admitted the appeal of the applicant and same is pending till date. The said appeal is still pending in the Hon’ble Delhi High Court. Meanwhile, the nonapplicant terminated the services of the applicant vide order dated 13.10.2010 on account of conviction by a criminal court by invoking the Regulation 33 of the AAIE (CDA) Regulation 2003.

The applicant challenged the said action of the Non-applicant by filing a writ No. 480/2011 in the Hon’ble Delhi High Court. However, the said writ petition was dismissed by the Hon’ble Delhi High Court rejecting the contentions of the applicant. The applicant also filed an LPA No. 148/2013 to challenge the said order but the same was also dismissed vide order dated 08.03.2013. The applicant also filed a civil writ petition No. 9171/2015 claiming gratuity and other benefits but later on withdrew the same.

The Non-applicant has relied upon section 4 (6) of the Payment of Gratuity Act, 1972 and regulation 3 (4) (b) of the Airport Authority of India (Gratuity) Regulations, 2003 to contend that since the services of an employee has been terminated on account of conviction for an offence involving moral turpitude, the applicant is not entitled to receive gratuity.

The following points arises for consideration in this case.
1. Whether the applicant is not entitled to gratuity in view of section 4 (6) of the Payment of Gratuity Act, 1972 ?
2. If the gratuity is payable to the applicant, what would be the amount of gratuity and whether it should be paid with interest or not?

ISSUE NO. 1:
****

In the instant case applicability of the Section 4 (6) (b) (ii) has been argued by the non-applicant. The Non-applicant has placed reliance on the judgments of Hon’ble Calcutta High Court in Indian Iron & Steel Co. Ltd. Vs. Himangshu Bikash Sarkar & Ors. And Hon’ble Bombay High Court in Narayan R.Bhosekar Vs. Municipal Corporation for Greater Bombay & Ors. At the same time, applicant has placed reliance on the judgments of Hon’ble Delhi High Court in A.K. Maitra vs. CMD National Fertilizer Ltd, Hon’ble Supreme Court inh Jaswant Singh Gill vs. Bharat Coking Coal Ltd (2007), D.V. Kapoor vs. Union of India (1990), State of Jharkhand vs.l Jitendra Kumar Srivastava (2013). The facts and circumstances of the above judgments except some of them which are discussed in the following paragraph have not been found to be the same as that of the case in hand.

The hare reading of the provision of Clause (b) sub section (6) of the section 4 makes it clear that forfeiture of gratuity under the said provision is not automatic on termination of services of an employee for the reasons mentioned therein. The words ” may be wholly or partly forfeited” connotes that the forfeiture of gratuity is not automatic on the termination of services of an employee and the employer has to take an independent decision in this regard after affording the employee an opportunity of being heard and to determine as to what extent gratuity is to be forfeited having regard to the facts and circumstances of the case. Before forfeiting the gratuity under section 4 (6) is imperative for the management to afford an employee a reasonable opportunity of being heard and to quantity the amount of damage/ loss caused to the employer and attributable to the alleged acts, wilful omission or negligence of the employee.
***

The above observation of the Hon’ble High Court prescribes procedural as well as substantive guidelines in the cases of forfeiture on the ground of moral turpitude. It goes to say that the procedure of issuing show cause notice and passing reasoned order are very important from the point of view of the right of employee. The order dated 13.10.2010 of the non-applicant only talks about the termination of services of the applicant. It no where provides for the forfeiture of gratuity. Any action of such forfeiture by the non-applicant has to be taken pursuant to a order issued by a competent authority of the Non-Applicant in exercise of powers conferred on such authority by statutory provisions after following due process of law. The terminal benefits of gratuity which has been aimed at providing the employer social security in case of forced unemployment cannot be light heartedly disturbed by mechanically passing an order.

The substantive aspect of the decision of the Hon’ble Court as above is that the decision of forfeiture must necessarily depend on the facts and circumstances of the case, such as, the length and past record of service, extent and magnitude of the offence and other relevant considerations. The applicant was appointed on 12.12.1978 and was removed from service on 13.10.2010. he has 32 years of service to his credit. It is not the case of the Nonapplicant that the applicant caused any loss to the corporation during his service period. It is admitted that during all his years of service, there was no allegation of any misconduct except that has been discussed in this case. As such keeping the entire facts and relevant law into consideration, it would not be justified to deprive the applicant from the payment of gratuity.

Moreover, the right to gratuity is kind of property and no persons can be deprived of his property save after following the due process of law as provided under Art. 300-A of the Constitution of India. The Hon’ble Supreme Court in the case of State of Jharkhand Vs. Jitendra Kumar Srivastava 2013 STPL (Web) 639 SC, held that gratuity and pension are not the bounties, it is hard earned benefit which accrues to an employee and is in the nature of ” property” . This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India.
***

Hence, provisions of the Payment of Gratuity Act shall prevail over the rules an bylaws relied upon by the respondent.

On the basis of the aforesaid deliberation, this Controlling Authority arrives at the decision that the applicant is entitled for payment of gratuity.

ISSUE NO. 2;
This Controlling authority determines the amount of gratuity in accordance with the explanation to section 4 (2) of the Act based on the information given by the parties, as mentioned below:

54200/26 X 15×32= 1000615/-.

However, there is a ceiling of Rs. 10,00,000/- on the gratuity amount payable under the Act….”

52. Upon perusal of the above extracts of the impugned order, it is observed that the petitioner herein had relied upon Regulation 3.4 of the Airport Authority of India (Gratuity) Regulations, 2003 to contend that since the services of an employee has been terminated on account of conviction for an offence involving moral turpitude, the respondent is not entitled to receive gratuity. The petitioner contended that the said Regulation is in para materia to Section 4 (6) of the Act.
53. Whilst adjudicating issue no. 1 which is whether the respondent herein is entitled to gratuity in view of Section 4 (6) of the Act, the learned Controlling Authority held that the forfeiture is not a vested right of the employer, however, in order to decide whether employee’s gratuity shall be forfeited, the employer must afford the employee with an opportunity to be heard, and only after considering the facts and circumstances of the matter at hand including the duration of the service and past record of the employee etc., the employer should decide the quantum of the gratuity to be forfeited.
54. The learned Authority held that vide the order dated 13th October, 2010, the respondent was terminated, however, the same does not provide for the forfeiture of gratuity. Any action of such forfeiture by the petitioner herein has to be taken in pursuance of an order issued by the competent authority of the petitioner in exercise of powers conferred on such authority after following due process of law.
55. The learned Authority observed that the petitioner herein did not contend that any loss or damage was caused by the respondent and that the respondent did not face any allegations during the tenure of his service, therefore, it was held that the respondent cannot be deprived from the payment of gratuity and accordingly, petitioner was directed to pay Rs. 10,00,000/- to the respondent.
56. This Court is of the view that gratuity is an employee’s right and the same shall not be taken away without following the due process of law and unless the same is in accordance with the relevant legal provisions.
57. In the instant case, the respondent worked with the petitioner for a period of almost 30 years, however, he was convicted by a Court of competent jurisdiction for the offence of corruption.
58. Applying the above discussed principles of law, this Court is of the considered view that the learned Controlling Authority rightly held that in terms of Section 14 of the Act, the Payment of Gratuity Act, 1972 has overriding effect over all the other enactments.
59. Therefore, the petitioner’s internally framed Regulations, as mentioned herein above, do not survive in light of the Central Act enacted for the purposes of payment of gratuity. Considering the same, the contention of the petitioner that Regulation 3.4 of the Airport Authority of India (Gratuity) Regulations, 2003 is in para materia to the Act, 1972 is rejected on two grounds. Firstly, only the Act, 1972 is applicable and secondly, the Act, 1972 contains the word ‘may’ whereas the Regulations, 2003 contains the word ‘shall’. For reference, Regulation 3.4 of the Airport Authority of India (Gratuity) Regulations, 2003 has been reproduced as under:
“..3.4 The gratuity payable to an employee shall be wholly or partly forfeited:-

(a)if the services of such employee have been terminated for his/her riotous or disorderly conduct of any other act of violence on his part, or
(b)if services of such employee have been terminated for any proven act which constitutes an offence involving moral turpitude;
Provided that such offence is committed by him/her in the course of his/her employment…”

60. In continuation with the preceding paragraph this Court is of the view that Regulation 3.4 of Regulations, 2003 provides a mandate to forfeit the gratuity either wholly or partially whereas Section 4 (6) the Act, 1972 provides for discretion in the forfeiture. Therefore, the learned Controlling Authority rightly held that the forfeiture of gratuity as per the Act, 1972 is not automatic and is dependent upon various factors.
61. This Court is of the considered view that the learned Controlling Authority rightly held that the respondent is entitled to his gratuity and there is no infirmity with regard to the same. The respondent’s entitlement to his gratuity is in accordance with the settled legal principles.
62. In so far as the factors for forfeiture of gratuity are concerned, the respondent has been convicted under Sections 7, 13 (2), 13(1) (d) of the Prevention of Corruption Act, 1988. Pursuant to the said conviction, the respondent was issued memorandum of dismissal. After taking into consideration the representation of the respondent, the Disciplinary Committee of the petitioner imposed major penalty of dismissal of service which was upheld by the Appellate Authority, the learned Single Judge of this Court as well as the Division Bench of this Court vide order dated 8th March, 2013 in LPA no. 148/2013.
63. Hence, there is no dispute with regard to the issue of the respondent’s dismissal as the same has attained finality and it will not be incorrect to say that the decision of the respondent’s conviction by the Trial Court and decision of upholding the respondent’s dismissal from his services by the Division Bench of this Court makes out a case of ‘moral turpitude’ on the part of the respondent.
64. In other words, the decisions made against the respondent pertaining to his dismissal and conviction, on the face of it, amounts to moral turpitude, thereby, inviting the applicability of Section 4 (6) (b) (ii) of the Act upon the respondent. The genesis of the same is also based upon the fact that the respondent’s conviction was based upon him being found guilty of the offence of corruption following which he was dismissed from his services.
65. In such an event, it will not be appropriate to direct the petitioner to pay to the respondent full amount of gratuity as the same would completely defeat the intent of Section 4 (6) of the Act which, in the opinion of this Court is a deterrence provision inserted with a special purpose. The said provision was enacted to deter such unwarranted activities amounting to dishonesty, acts of violence, illegal acts, etc.
66. At this stage, it is imperative to state the powers of this Court to intervene under Article 226/227 with the order of an Authority/Tribunal/Court below. It is a settled position of law that in order to invoke the writ jurisdiction of this Court, it has to be proved that the Court/Authority below has exceeded or usurped its jurisdiction, or acted illegally; or in contravention to any law, or there is an error on the face of the record.
67. In light of the above facts and circumstances, in the present case, the respondent has been convicted for the offence of corruption, which according to this Court is an act involving ‘moral turpitude’.
68. It is held that the requirement of the statute is not that there should be a proof of ‘act’ involving moral turpitude rather such act/offence which constitute moral turpitude should be duly established in a Court of law.
69. Hence, the forfeiture of the respondent’s gratuity on the ground stated as per the order directing dismissal of the petitioner which attained finality vide order dated 8th March, 2013 passed by the Division Bench of this Court in LPA no. 148/2013 comes within the ambit of Section 4 (6) of the Act. The misconduct/offence proved against the respondent is an act involving moral turpitude.
70. In view of the foregoing observations, this Court is of the view that the learned Controlling Authority erred in determining the amount of Rs. 10,00,000/- as the amount of gratuity payable to the respondent since it failed to take into account the factum that the respondent is convicted and dismissed from services as the offence committed by him constitutes moral turpitude which comes within the ambit of Section 4 (6) of the Act.
71. It is held that the learned Controlling Authority erred in applying the settled position of law which is an error apparent on the face of the record, thereby, inviting the interference of this Court under Article 226/227 of the Constitution of India.
72. Considering the above, the impugned order dated 22nd December, 2016 passed in claim application bearing no. ALC-HQTB/36(104) of 2015, by the learned Controlling Authority is partially set aside to the extent of determination of the quantum of the gratuity amount payable to the respondent.
73. It is pertinent to mention here that this Court upholds the decision of the learned Controlling Authority in holding the respondent entitled to gratuity and there is no illegality thereto.
74. This Court under writ jurisdiction cannot adjudicate upon the dispute involving quantum of the gratuity as it is a disputed question of facts and the same falls within the jurisdiction of the learned Controlling Authority. Therefore, the respondent’s entitlement of gratuity is upheld and for the purposes of determination of the quantum of the gratuity amount payable to the respondent, the matter is remanded back to the learned Controlling Authority to determine the amount of gratuity afrersh, keeping in mind the observations made by this Court.
75. Accordingly, the instant petition stands disposed of along with pending application, if any.
76. The order be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J
APRIL 26, 2024
gs/ryp/av
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W.P.(C) 5321/2017 Page 39 of 39