20.wp2559.2023jud.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 2559 OF 2023 The Sub-Area Manager, Ballarpur Sub-Area of WCL, Post Ballarpur, Dist. Chandrapur ... Petitioner Versus 1. Appellate Authority under Payment of Gratuity Act, 1972 & Deputy Chief Labour Commissioner (Central), Nagpur. 2. Controlling Authority under Payment of Gratuity Act, 1972 & Assistant Labour Commissioner (Central), Chandrapur. 3. Mallesh Chandraiyya (Mallesh Vyenketti Engulwar) aged about 65 years, Occ: Unknown, R/o MQ No.4/3, Tilak ward, Near UCO Bank, Post Ballarpur, Dist. Chandrapur.(dead) through LRs: 3a. Komramma Mallesh Yengulwar, aged about 60 years, Occ: Unknown, R/o Water Tank, Tilak Ward, Ballarpur, Chandrapur, Dist. Chandrapur. 3b. Shriniwas Mallesh Yengulwar, aged about 36 years, Occ: Service, R/o UCO Bank, Tilak Ward, Quarter No.4/3, Ballarpur, Dist. Chandrapur. 3c. Saikumar Mallesh Yengulwar, aged about 34 years, Occ: Service, R/o UCO Bank, Tilak Ward, Quarter No.4/3, Ballarpur, Dist. Chandrapur. 3d. Swarupa Madasu Satyanarayan, aged about 40 years, Occ: Housewife, R/o UCO Bank, Tilak Ward, Quarter No.4/3, Ballarpur, Dist. Chandrapur. 3e. Manisha Jakkula, aged about 42 years, Occ: Housewife, R/o UCO Bank, Tilak Ward, Quarter No.4/3, Ballarpur, Dist. Chandrapur ... Respondents Mr. Pushkar Ghare, Advocate for petitioner. Ms. A.S. Athalye, Advocate for respondent Nos.1 & 2. Ms. Sonal M. Tripathi, Advocate for respondent No.3. PAGE 1 OF 9 2026:BHC-NAG:13109 20.wp2559.2023jud.odt CORAM : NANDESH S. DESHPANDE, J. DATE : 28.09.2026 JUDGMENT: Heard. (2) Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. (3) The petition is filed for the following reliefs : - (4) As can be seen from the record of the matter, the petitioner was charge sheeted on a misconduct alleging that he is working in a different name with the petitioner undertaking. Thereafter, in a regular departmental enquiry which ensued, he was found guilty and accordingly, the punishment of dismissal was proposed. An FIR was also filed against him for offences under the Indian Penal Code. In the backdrop of these facts, he made an application in Form ‘N’ to the Controlling Authority under the Payment of Gratuity Act, 1972. An objection was raised by the petitioner employer that the conduct of the respondent amounts to misconduct and he has already been charge sheeted and a regular departmental enquiry has been proceeded with. Inspite of that, the Controlling PAGE 2 OF 9 20.wp2559.2023jud.odt Authority vide judgment dated 06.05.2022 relying on a judgment in the case of Union Bank of India Vs. C.G. Ajay Babu, of the Hon’ble Apex Court went on to allow the application. The Controlling Authority thereby directed the petitioner to release the gratuity amount of Rs.10,00,000/- (Rupees Ten Lakhs Only) with accrued interest to the applicant. (5) Being aggrieved the petitioner – employer challenged the said before the appellate authority. However, the appellate authority also vide order dated 23.12.2022 upheld the findings of the Controlling Authority and dismissed the appeal. (6) I have heard Shri Ghare, learned counsel for the petitioner as also Ms. Sonal Tripathi, learned counsel for the respondent and Ms. Athalye, learned counsel for the respondent Nos.1 & 2. (7) It is the primary contention of the learned counsel for the petitioner Mr. Ghare, that the only premise on which the Controlling Authority has allowed the application of the respondent No.3 herein is reliance on the judgment of C.G. Ajay Babu (supra). He points me out a judgment of the Hon’ble Apex Court in Civil Appeal PAGE 3 OF 9 20.wp2559.2023jud.odt No.2608/2025, Western Coal Fields Ltd. Vs. Manohar Govinda Fulzele, reported in 2025 SCC OnLine SC 345,. By pointing me out the relevant paras i.e. paras 9, 10 and 11, it is the submission of the learned counsel for the petitioner that Hon’ble Apex Court has considered and differentiated the judgment of C.G. Ajay Babu, on which, the Controlling Authority has led emphasis on. For the sake of gravity the said paras are reproduced as under : “9. With all the respect at our command, the interpretation in C.G. Ajay Babu does not come out of the statutory provision; Section 4(6)(b)(ii) of the Act. Normally we would have referred the matter for consideration by a Larger Bench, but, as we noticed, the statutory provision does not make it a requirement that the misconduct alleged & proved in a departmental enquiry should not only constitute an offence involving moral turpitude, but also should be duly established in a Court of Law. The words "duly established in a Court of Law" cannot be supplied to the provision. Moreover, as we observed; the interpretation of sub clause (b)(ii) of subsection (6) of Section 4 was uncalled for in C.G. Ajay Babu since the provisions of the Section 4, including subsection (6) was found to be inapplicable to the employer Bank and its employee, by virtue of subsection (5) of Section 4. The interpretation, hence, with due respect was an obiter making a reference unnecessary. 10. As has been argued by the learned Solicitor General and the learned Counsel appearing for MSRTC, sub clause (ii) of Section 4(6)(b) enables forfeiture of gratuity, wholly or partially, if the delinquent employee is terminated for any act which constitutes an offence involving moral turpitude, if the offence is committed in the course of his employment. An ‘Offence’ as defined in the General Clauses Act, means ‘any act or omission made punishable by any law for the time being’ and does not call for a conviction; which definitely can only be on the basis of evidence led in a PAGE 4 OF 9 20.wp2559.2023jud.odt criminal proceeding. The standard of proof required in a criminal proceeding is quite different from that required in a disciplinary proceeding; the former being regulated by a higher standard of ‘proof beyond reasonable doubt’ while the latter governed by ‘preponderance of probabilities’. The provision of forfeiture of gratuity under the Act does not speak of a conviction in a criminal proceeding, for an offence involving moral turpitude. On the contrary, the Act provides for such forfeiture; in cases where the delinquent employee is terminated for a misconduct, which constitutes an offence involving moral turpitude. Hence, the only requirement is for the Disciplinary Authority or the Appointing Authority to decide as to whether the misconduct could, in normal circumstances, constitute an offence involving moral turpitude, with a further discretion conferred on the authority forfeiting gratuity, to decide whether the forfeiture should be of the whole or only a part of the gratuity payable, which would depend on the gravity of the misconduct. Necessarily, there should be a notice issued to the terminated employee, who should be allowed to represent both on the question of the nature of the misconduct; whether it constitutes an offence involving moral turpitude, and the extent to which such forfeiture can be made. There is a notice issued and consideration made in the instant appeals; the efficacy of which, has to be considered by us separately. 11. As far as, the PSU is concerned, we find that the appellant was proceeded against for the misconduct of producing a fraudulent ‘date of birth certificate’ to obtain appointment. The learned Counsel for the respondent argued that he has served almost 22 years in the PSU and that gratuity is the fruits of his service; which was otherwise unblemished, and is also a statutory right as per the Act, which cannot be denied to him on termination. The learned ASG, however, points out the appellant would not have obtained the appointment if his actual date of birth had been disclosed at the time of appointment. The appellant, in fact was born in 1953, as proved at the enquiry, while the date of birth submitted for his appointment was of the year 1960. The very substratum of the appointment having been removed, the appellant cannot plead for any leniency and the terminated employee deserves no sympathy asserts the Learned PAGE 5 OF 9 20.wp2559.2023jud.odt ASG, who also relies on the decision of this Court in Devendra Kumar vs. State of Uttaranchal to contend that a suppression of material information at the time of selection or appointment would constitute an offence involving moral turpitude.” (8) It is also held in the said judgment that it is seen from the said provision that no conviction in a criminal proceedings is necessitated, if the misconduct alleged and proved constitutes an offence involving the moral turpitude. He also places reliance on the judgment of this Court passed in Writ Petition No.5432/2019, which relies on the judgment in Western Coal Fields Ltd. Vs. Manohar Govinda Fulzele and has differentiated the judgment of C.G. Ajay Babu (supra) in the lights of the judgment of the Hon’ble Supreme Court. It is, therefore, the contention of Mr. Ghare, that the Controlling Authority as well as the Appellate Authority has gravely erred in misconstruing the provisions and more particularly, Section 4, sub- section 6 of the Gratuities Act. (9) Per contra, Ms. Tripathi, learned counsel appearing for the respondent No.3, also relies on the same judgment as has been referred to by the learned counsel for the petitioner i.e. Western Coal Fields Ltd. Vs. Manohar Govinda Fulzele. Ms. Tripathi, draws my attention to paragraph 15 thereof, wherein the Hon’ble Apex Court has PAGE 6 OF 9 20.wp2559.2023jud.odt directed the appointing authority to remit the forfeiture to 25% of the gratuity payable and release the balance amount. (10) Mr. Ghare, however, counters this, he draws my attention to the fact that the said judgment of the Hon’ble Apex Court was in two Civil Appeals bearing Nos.2608 of 2025 and 2609 of 2025 as also 2610 of 2025. He submits that a Civil Appeal No.2608 of 2025 was only concerning the present petitioner, who was the appellant before the Apex Court. He submits that the direction in paragraph 15 of releasing the amount by limiting forfeiture to 25% is with respect to the MSRTC and not with respect to the present petitioner. He further submits that, in that matter, there was charge of misappropriation of amount. In the backdrop of these facts, the observations in paragraph 15 have been made by the Hon’ble Apex Court. (11) I am in respectful agreement with the learned counsel for the petitioner and the said facts are borne out of the record also. Here there is no charge of misappropriation. The charge is with respect to working under a fake name. In that view of the matter, the orders of the Controlling Authority as confirmed by the Appellate Authority are unsustainable in law since they being contrary with the PAGE 7 OF 9 20.wp2559.2023jud.odt interpretation as laid down by the Hon’ble Apex Court in the judgment referred supra. The orders therefore, being perverse cannot be sustained. The petition is, therefore, liable to be allowed. (12) The writ petition is allowed. (13) Both the orders are hereby quashed and set aside. The application filed by the respondent No.2 before the Controlling Authority is rejected. (14) It is also noteworthy to mention that the punishment of dismissal imposed by the employer/petitioner herein has attained finality since the challenged raised by the deceased respondent No.2 before the learned Central Government Industrial Tribunal, Nagpur, has been chosen to be withdrawn by him, as can be seen from the pursis placed on record. Looking in the totality of the circumstances, the petition needs to be allowed. The same is allowed. (15) Mr. Ghare, points me out that the petitioner herein has deposited an amount of Rs.14,21,918/- before the Controlling Authority and the Assistant Labour Commissioner (Central) PAGE 8 OF 9 20.wp2559.2023jud.odt Chandrapur. In view of the fact that the order of the Controlling Authority and the Appellate Authority are set aside by this Court, the petitioners are at liberty to withdraw the said amount. (16) The writ petition is allowed. Rule is made absolute. [Nandesh S. Deshpande, J.] Prity PAGE 9 OF 9 Signed by: Mrs. Prity Gabhane Designation: PA To Honourable Judge Date: 03/10/2026 12:29:59