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Bombay High CourtIndian Cases

Narayan R. Bhosekar vs Municipal Corporation For Greater … on 17 September 2001

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Bombay High Court
Narayan R. Bhosekar vs Municipal Corporation For Greater … on 17 September, 2001
Equivalent citations: 2002(3)BOMCR340, [2002(94)FLR55], 2002(1)MHLJ576
Author: Pratibha Upasani
Bench: Pratibha Upasani
JUDGMENT
1. This writ petition is filed by the petitioner, Narayan Bhosekar, being aggrieved by the order of dismissal, dated 9-11-1993, passed by the first respondent, praying that it be declared that the impugned order, dismissing him from service of the first respondent, is illegal, arbitrary, null and void and that he be re-instated forthwith in service of the first respondent on the post of Deputy Engineer with full back wages and other consequential benefits.

2. Pew facts, which are relevant for the purpose of deciding this writ petition, can be briefly stated as follows :

The petitioner was in service of the second respondent as a Deputy Engineer in the Erection South Division. He was charge-sheeted on 5-11-1992 under the Service Regulations, framed by the Bombay Electric Supply and Transport Undertaking. The charges can be reproduced as below :
(i) Fraud, dishonesty in connection with the business or property of the Undertaking.
(ii) Taking or giving bribes or other illegal gratification.
(iii) Breach of any rules/ regulations/ procedures practice in the matter of carrying out departmental work.
(iv) Wilful falsification, defacement or destruction of personal records or any other records of the Undertaking. Pending enquiry, the petitioner was suspended with immediate effect i.e., 5-11-1992. He was also called upon to explain the above charges. The petitioner accordingly sent his reply to the show cause notice by letter dated 2-5-1994. Thereafter, a full-fledged departmental enquiry was held. The petitioner was represented by an Advocate. Twenty-five witnesses came to be examined. The petitioner participated in the said enquiry and cross-examined those witnesses, at length. Thereafter, on 19-3-1993 the Divisional Engineer (Planning), who was the Trying Officer, passed a reasoned order. After recording his reasons on various points, he came to the conclusion that the petitioner was guilty of the charges of dishonesty, breach of rules, destruction, falsification and defacement of the Undertaking’s record. He concluded by saying that there was no doubt that the petitioner had committed serious offences and such offences are required to be dealt with in a severe manner. The Trying Officer concluded that the petitioner was not a fit person to be retained in the services of the Undertaking and that ends of justice would be well met if he was dismissed from the services of the Undertaking with immediate effect i.e., on the close of the work of 19-3-1993.
This order is being challenged by the petitioner by filing his writ petition. Various grounds have been taken up by the petitioner, assailing the said order, dated 19-3-1993, passed by the Trying Officer. When this writ petition came up for admission, a single Judge of this Court (Coram : S. H. Kapadia, J.) admitted this petition on 4-2-1997 but restricted it to the question of gratuity which was forfeited by the Undertaking observing that he was not inclined to admit the writ petition on the other grounds of action because the claim was barred, stale and frivolous.

3. Today, the matter is for final hearing. However, neither the petitioner nor his Advocate is present. The roznama reveals that the matter has been appearing on the final hearing board but the petitioner has never appeared after the petition was admitted. It also appears that after the petition was admitted, leave to amend was sought by the petitioner which was granted by this Court (Coram : S. H. Kapadia, J.) on 13-1-1997 and accordingly amendment was carried out in the body of the petition. However, the prayer clause has not been amended. Mr. A. V. Bukhari, who is appearing for the respondents, also makes a statement that the respondents have not been served with the amended copy of the petition at all and that in view of this he does not want to file any reply to the amended part of the petition. He points out that he has filed affidavit of Mr. Ashok Y. Walawalkar, Assistant Personnel Officer of respondent No. 2, dated 13-6-2000.

4. I have heard Mr. A. V. Bukhari, learned counsel appearing for the respondents. I have also gone through the petition and the affidavit in-reply.

5. Mr. Bukhari argued that the petitioner, who was working as a Deputy Engineer with the second respondent, was found to be indulging in acts amounting to moral turpitude. He has further argued that accordingly a departmental enquiry was held against the petitioner after giving him a show cause notice and duly serving him with the chargesheet in which specific charges were framed against him in a clear and unambiguous words and after duly complying with the principles of natural justice. He has submitted that the reply sent by the petitioner to the show cause notice was duly considered by the concerned authorities. He has further submitted that as many as twenty-five witnesses were examined who were effectively cross-examined by the petitioner, who was represented by an Advocate. He further points out that after recording the evidence and after hearing both the sides, the Trying Officer passed a reasoned order, dated 19-3-1993, in which he has given a finding that after having gone through the case, submissions made by the Union’s representatives and the service record and files of the petitioner, he had found him guilty of the charges of dishonesty, breach of rules, destruction, falsification and defacement of the Undertaking’s record. He has given reasons for his finding and has concluded that in his opinion, the petitioner has committed serious offence and has to be dealt with in a severe manner and hence in the interest of justice he has to be dismissed from service with immediate effect.

6. This order came to be passed on 19-3-1993. Thereafter, as revealed from the affidavit of the respondents and the letter, dated 25-4-1994 (annexed as Exhibit – I to the said affidavit) sent to the petitioner which says that since the petitioner was found guilty of misconduct involving fraud and dishonesty in connection with the business or property of the Undertaking, breach of rules, wilful falsification, etc., as enumerated in the said letter, under Section 4 Sub-section (6) of the Payment of Gratuity Act, 1972, the Undertaking was entitled to forfeit the full amount of gratuity payable to the petitioner in view of the misconducts committed by him. The petitioner was, therefore, called upon to show cause, within 15 days from the receipt of the said notice, as to why the gratuity payable to him should not be forfeited wholly. It was further warned that if no cause was shown within the said period, the amount of gratuity payable to him would be liable to be forfeited without any further reference. Thereafter, it appears that reply was given to this letter by the petitioner by his letter dated 2-5-1994, through an Advocate, addressed to the Divisional Engineer, Erection South, BEST Undertaking, Mazgaon, Bombay-400010. In the said reply it was stated by the petitioner that forfeiture of the gratuity payable to him was illegal, bad-in-law, in-operative and made with the ulterior motive of taking revenge against him. It was also stated that the Undertaking had not stated in the said notice, dated 25-4-1994, the amount of loss, damage or destruction of property caused to the BEST Undertaking by the act of the petitioner for which he had been held guilty in the departmental enquiry.

The return filed by the respondents shows that this reply, dated 2-5-1994, sent by the petitioner, was responded by the respondents by their letter dated 7-10-1994. In the said letter, which was written by the respondents to the petitioner, it was informed that the explanation sent by the petitioner was considered by them and was not found to be satisfactory. It was reiterated that the gratuity of the petitioner had been forfeited as the petitioner had been dismissed from the services of the Undertaking for misconducts involving moral turpitude. It was further intimated that the concept of loss or damage was irrelevant when the misconduct involved moral turpitude.

It appears that thereafter for almost two years the petitioner did nothing. He filed the present petition in the month of July, 1996.

7. Mr. Bukhari, drawing my attention to the above mentioned facts, also pointed out that in view of Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972 the respondents were justified and were within their rights to forfeit the full gratuity of the petitioner. He also relied upon the judgment of the Kamataka High Court (Coram : M. Rama Jois and M. Ramakrishna, JJ.), dated 4-7-1986, delivered in Writ Appeal No. 461 of 1983, Bharath Gold Mills Lid. v. Regional Labour Commissioner (Central) Banglore and two Ors.

Mr. Bukhari argued that since the petitioner was found guilty of charges which involved moral turpitude, the forfeiture of gratuity of the petitioner in full was legal and permissible.

I have heard Mr. Bukhari at length. I have also gone through the aforesaid judgment of the Kamataka High Court, so also Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972, In the said judgment relied upon by Mr. Bukhari, the charge against the respondent-workman, who was in service of Bharath Gold Mills Limited, was that of theft and the Karnataka High Court, after hearing both the sides and after considering the provisions of Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972, came to the conclusion that theft was an offence involving moral turpitude and consequently if the services of the employee had been terminated for committing theft in the course of his employment, the gratuity payable to him under the provisions of the Act stood wholly forfeited in view of Section 4(6)(b)(ii) of the Act. The Court accepted the meaning given to the words “moral turpitude” in the “Words and Phrases”, Permanent Edition, Volume 27A, at page, which read as follows :

” “Moral turpitude” is anything done contrary to justice, honesty, modesty or good morals.”
8. In the present case at hand the petitioner, who was employed as a Deputy Engineer with the second respondent, was found guilty after a full-fledged enquiry of the charges of fraud, dishonesty, falsification and destruction of the personal records of the Undertaking and the charge which involved moral turpitude was duly proved against him. If one goes through the charges framed against the petitioner, it is evident that all those charges did involve and could be called the ones involving moral turpitude. I am, therefore, respectfully in agreement with the observations made by the Karnataka High Court as far as the meaning of the words “moral turpitude” and the interpretation and the reasoning given for forfeiting the gratuity in full, as per the provisions of Section 4(6)(b)(ii) of the Payment of Gratuity Act, 1972, are concerned.

9. In view of the above discussion, I find no merit in the petition filed by the petitioner, challenging the order of his dismissal. The dismissal order came to be passed after a full-fledged enquiry and after recording of the evidence. No fault can be found with the finding of guilt recorded by the Trying Officer or the impugned order, 9-11-1993, passed by the Appellate Authority.

In the amended ground (xi) challenge is made only to the order, dated 17-10-1994. However, correspondingly there is no amendment in the prayer clause. In view of the above discussion, I do not find any merit is the amended ground also. The provisions of Section 4(6)(b)(ii) of the payment of Gratuity Act, 1972 are correctly applied in view of the nature of the charges framed against the petitioner. I find no substance in the petition and the same is devoid of any merit. Hence following order :

ORDER Writ petition is dismissed.
10. Writ petition dismissed.