In Vithal Rangnath Darekar Vs New India
Insurance Company Ltd [2012 LLR 1027], the Bombay High Court has ruled that the
right to receive gratuity is a statutory right and the gratuity cannot be
forfeited due to conviction by criminal court for an offence (ie, kidnapping a
girl) since such act does not come under purview of section 4(6)(b) of the
Payment of Gratuity Act, 1972.
Section 4(6)(b) deals with forfeiture of
gratuity and it reads as follows:
“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 of 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.”
In the instant case, the petitioner was a
sub staff of the respondent company and he was convicted for an offense of
kidnapping a girl under section 363 and 344 of Indian Penal Code, directing to
undergo rigorous imprisonment for four years together with fine. On the ground
of his conviction by criminal court his services were terminated by the
employer. He had rendered a service of 19 years and 2 months. He moved an
application for gratuity before the Controlling Authority which, in turn, was
rejected on the ground that the applicant has been convicted for an offence
involving moral turpitude. He then challenged the decision before the High
Court.
The High Court observed that the act of
kidnapping a girl has nothing to do with the act of employment. The expression
in section 4(6)(b)(ii) clearly suggests that such act involving moral turpitude
must be caused in the ‘course of employment’. An employee is acting in the
course of employment only when he is doing something in discharge of a duty
imposed upon him by his contract of service.
