1. Heard, Mr. Anil Kumar Sinha, learned senior counsel for the petitioner and Mr. Anoop Kumar Mehta, learned counsel for the respondent- Coal
India Limited.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been
heard.
3. The petitioner has preferred this writ petition for quashing the order dated 10.11.2017 contained in Annexure-13 whereby the Disciplinary Authority,
in exercise of the power conferred upon the provision of the Rule 27 of Coal India Executive's Conduct, Discipline and Appeal Rules, 1978, penalty of
deemed dismissal has been inflicted on the petitioner with effect from 31.07.2013. Further prayer has been made for direction upon the respondents to
immediately release the gratuity and leave encashment with interest that has been permanently been withheld by the respondents..
4. It was the case of the petitioner that he was working as Deputy Chief Medical Officer under the respondents and he was superannuated with
effect from 31.07.2013. An F.I.R. being R.C. 9(A)/2003(R) was lodged against the petitioner wherein it is alleged that the petitioner while posted as
Bhurkunda Dispensary of Barka Sayal Area demanded an illegal gratification of Rs. 500/- and was caught red handed on 07.04.2003 which is still
pending in the court of Special Judge, C.B.I, Ranchi. Petitioner was taken into custody on 07.04.2003 and was placed under deemed suspension vide
order dated 18.06.2003. The petitioner having being placed under suspension and due to pending initiation of departmental proceeding/framing of
charge sheet, the suspension of petitioner was revoked vide order dated 22.10.2003 and the petitioner was directed to resume service with immediate
effect. The petitioner was served with memorandum dated 27.12.2004 along with article of charge and a notice to show-cause directing the petitioner
to submit his defence in pursuant to article of charges contained within 10 days. Charge is with regard to maintenance of absolute integrity and the
petitioner accepted gratification of Rs. 500/- The petitioner violated clause 4.1 (i), 4.1(ii) and 4.1(iii) of Conduct, Discipline and Appeal Rules, 1978 of
CIL which amounts to misconduct in terms of Clause 5.0(2), 5.0(5), 5.0(15) and 5.0(17) of the said rules. Thereafter, departmental proceeding was
initiated against the petitioner under Rule 29 of the Coal India Executive's Conduct, Discipline and Appeal Rules, 1978. It was further case of the
petitioner that vide order dated 06.04.2005, enquiry was constituted and therefore, the petitioner demanded an opportunity of personal hearing vide his
representation dated 06.04.2005. The enquiry officer was appointed vide letter dated 06.04.2005. Three enquiry officers were changed. In the said
departmental inquiry, charge was framed in the year, 2004, the inquiry report was submitted in the year, 2012 after lapse of eight years. During
pendency of departmental proceeding, the petitioner retired on 31.07.2013. There was no formal order for continuation of departmental proceeding
against the petitioner after the retirement of petitioner. Till the retirement of the petitioner, the inquiry report was not provided to the petitioner and
therefore, the petitioner vide his representation dated 06.02.2012 demanded the enquiry report from the respondents but the same was not provided to
the petitioner. Under the Right to Information Act, the petitioner moved upto the Central Information Commission for providing inquiry report. That is
why, pursuant to order dated 21.06.2017 of the Central Information Commission, instead of providing inquiry report to the petitioner a notice to show
cause dated 30.06.2017 was issued to the petitioner. In that show-cause it was stated that due to lack of evidence charge could not be established in
departmental proceedings against the petitioner. The petitioner replied to the said show- cause. The Chairman-cum-Managing Director-cum-
Disciplinary Authority passed order dated 10.11.2017 whereby in exercise of the power conferred upon the provision of the Rule 27 of Coal India
Executive's Conduct, Discipline and Appeal Rules, 1978, imposed the penalty of deemed dismissal upon the petitioner with effect from 31.07.2013.
The petitioner has been honorably acquitted of his criminal charge from criminal proceeding vide judgment dated 11.01.2018 contained in Annexure-14
of the writ petition. The petitioner against the aforesaid order preferred representations dated 30.01.2018 and 01.03.2018. The petitioner has earlier
preferred a writ petition being W.P.(S) No. 2400 of 2016 challenging the departmental enquiry but the same was withdrawn by the petitioner which is
evident from order dated 11.04.2008 contained in Annexure-16.
5. The case of the respondent-Coal India Limited is that the petitioner being aggrieved by order of dismissal has preferred Departmental Appeal under
Clause 36.1 of C.D.A, Rules, 1978 on 30.01.2018. The petitioner has filed an application for disbursement of gratuity before the controlling authority
under the Payment of Gratuity Act, 1972 which has been allowed and thereafter the appeal has been preferred by the Management which has been
allowed by the appellate authority. The said appellate order has not been challenged and the order of the controlling authority has been set-aside. The
petitioner while posted and functioning as Medical Superintendent at Bhurkunda Colliery, Barka Sayal Area, CCL was arrested by the CBI, Ranchi on
07.04.2003 for demanding and accepting illegal gratification of Rs, 500/- under the Prevention of Corruption Act. The petitioner was issued a
memorandum of major penalty proceeding under Rule 20 of the Conduct, Discipline & Appeal Rules, 1978. Against the said charge, the petitioner
submitted his representation. A departmental enquiry was constituted. Subsequently, the said departmental enquiry was modified twice. The Inquiry
Authority submitted inquiry report dated 16.07.2012 with a finding that the charges levelled against the petitioner was not proved. The Disciplinary
Authority disagreeing with the findings of the Inquiry Authority issued disagreement memorandum to the petitioner as required under Rule 30.0 of the
Conduct, Discipline & Appeal Rules, 1978 giving the petitioner an opportunity for representation. The petitioner submitted his representation on
28.07.2017 against the said disagreement memorandum dated 30.06.2017. The Disciplinary Authority passed order dated 10.11.2017 of deemed
dismissal of the petitioner with effect from 31.07.2013. The petitioner is not entitled for payment of EL/HPL encahsment in terms of CIL Executives
Leave and also gratuity amount as per the Payment of Gratuity Act, 1972 as the departmental proceeding has ended in deemed dismissal of the
petitioner. Even the appellate authority under the Payment of Gratuity Act, 1972 has reversed the order passed by the Controlling Authority directing
payment of gratuity already deposited before the Controlling Authority by the respondent-CCL.
6. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioner assailed the impugned order on the ground that no termination order can
be passed after retirement. He submitted that termination order is prospective whereas effect of that order has been given retrospective which cannot
be allowed. In view of the well-settled provision of law, termination order cannot be passed retrospectively. No termination order can be passed after
retirement. To substantiate his argument, learned senior counsel for the petitioner relied upon judgement in the case of ""Jaswant Singh Gill v. Bharat
Coking Coal Ltd., reported in (2007) 1 SCC 663. The relevant para of the said judgement is quoted here-in-below:-
7. The short question which arises for consideration in this appeal is as to whether the provisions of the said Act shall prevail over the rules framed by
the Coal India Limited, holding company of Respondent 1, known as the Coal India Executives' Conduct, Discipline and Appeal Rules, 1978 (for short
the Rules""). Indisputably, the appellant was governed by the Rules. Rule 27 provides for the nature of penalties including ""recovery from pay or
gratuity of the whole or part of any pecuniary loss caused to the Company by negligence or breach of orders or trust"".
Major penalties prescribed in Rule 27, however, include reduction to a lower grade, compulsory retirement, removal from service and dismissal. Rule
34 provides for special procedure in certain cases stating:
34.2. Disciplinary proceedings, if instituted while the employee was in service whether before his retirement or during his re-employment shall, after
the final retirement of the employee, be deemed to be proceeding and shall be continued and concluded by the authority by which it was commenced
in the same manner as if the employee had continued in service.
34.3. During the pendency of the disciplinary proceedings, the disciplinary authority may withhold payment of gratuity, for ordering the recovery from
gratuity of the whole or part of any pecuniary loss caused to the company, if have been guilty of offences/misconduct as mentioned in sub-section (6)
of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence, during his service
including service rendered on deputation or on re-employment after retirement. However, the provisions of Sections 7(3) and 7(3-A) of the Payment
of Gratuity Act, 1972 should be kept in view in the event of delayed payment, in the case the employee is fully exonerated.
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10. The provisions of the Act, therefore, must prevail over the Rules. Rule 27 of the Rules provides for recovery from gratuity only to the extent of
loss caused to the Company by negligence or breach of orders or trust. Penalties, however, must be imposed so long an employee remains in service.
Even if a disciplinary proceeding was initiated prior to the attaining of the age of superannuation, in the event the employee retires from service, the
question of imposing a major penalty by removal or dismissal from service would not arise. Rule 34.2 no doubt provides for continuation of a
disciplinary proceeding despite retirement of employee if the same was initiated before his retirement but the same would not mean that although he
was permitted to retire and his services had not been extended for the said purpose, a major penalty in terms of Rule 27 can be imposed.
11. Power to withhold penalty (sic gratuity) contained in Rule 34.3 of the Rules must be subject to the provisions of the Act. Gratuity becomes payable
as soon as the employee retires. The only condition therefore is rendition of five years' continuous service."".
7. The next point submitted by the learned senior counsel for the petitioner was that in the criminal proceeding, the petitioner has been honorably
acquitted. He submitted that there is same set of facts in departmental proceeding and criminal proceeding. He submitted that if the employee is
honorably acquitted in criminal trial during the pendency of proceeding challenging dismissal, the employee is entitled for benefit. To buttress this point,
he relied upon the judgment in the case of ""G.M. Tank v. State of Gujarat"" reported in (2006) 5 SCC 446.
20. It is thus seen that this is a case of no evidence.
There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of
gratification. The respondent failed to prove the charges levelled against the appellant. It is not in dispute that the appellant being a public servant used
to submit his yearly property return relating to his movable and immovable property and the appellant has also submitted his return in the year 1975
showing his entire movable and immovable assets. No query whatsoever was ever raised about the movable and immovable assets of the appellant. In
fact, the respondent did not produce any evidence in support of and/or about the alleged charges levelled against the appellant. Likewise, the criminal
proceedings were initiated against the appellant for the alleged charges punishable under the provisions of the PC Act on the same set of facts and
evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and
evidence. The appellant has been honourably acquitted by the competent court on the same set of facts, evidence and witness and, therefore, the
dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
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30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the
departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the
appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the
criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during
enquiry and investigation and as reflected in the charge- sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses
and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set
of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other
departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the
charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination
came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the
appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement
was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings
recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of
difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of
the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be
valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal,
the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant
deserves to be allowed.
32. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8-2-1979 and got subsistence
allowance of Rs 700 p.m. i.e. 50% of the salary. On 15-10-1982 dismissal order was passed. The appellant had put in 26 years of service with the
respondent i.e. from 1953-1979. The appellant would now superannuate in February 1986. On the basis of the same charges and the evidence, the
department passed an order of dismissal on 21-10-1982 whereas the criminal court acquitted him on 30-1-2002. However, as the criminal court
acquitted the appellant on 30-1-2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily
can be only w.e.f. 30-1-2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back
wages. The appellant would be entitled to pension.
8. On the retrospective point, the learned senior counsel for the petitioner relied upon judgment in the case of ""State Bank of Patiala & Another Vs.
Ram Niwas Bansal (Dead) through legal representatives"" reported in (2014) 12 SCC 106. So far as the payment of gratuity is concerned, learned
senior counsel for the petitioner relied upon judgement in the case of ""Union Bank of India & Others"" Vs. C.G. Ajay Babu and Another"" reported in
(2018) 9 SCC 529. The relevant para of the said judgment is quoted here-in- below:-
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.
18. In Jaswant Singh Gill v. Bharat Coking Coal Ltd.5, it has been held by this Court that forfeiture of gratuity either wholly or partially is permissible
under sub-section (6)(b)(ii) only in the event that the termination is on account of riotous or disorderly conduct or any other act of violence or on
account of an act constituting an offence involving moral turpitude when he is convicted. To quote para 13: (SCC p. 670) ""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-Ã -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 damage 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.
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.
20. That the Act must prevail over the Rules on Payment of Gratuity framed by the employer is also a settled position as per Jaswant Singh Gill.
Therefore, the appellant cannot take recourse to its own Rules, ignoring the Act, for denying gratuity.
9. On these grounds, Mr. Anil Kumar Sinha, learned senior counsel for the petitioner submitted that in the departmental proceeding, the petitioner has
been exonerated as the allegation against the petitioner has not been proved. There is no cogent and valid reason passed in differing with the enquiry
report of the Disciplinary Authority. Three enquiry officers were changed for concluding the enquiry which was started in the year, 2004 and finally in
the year 2012, enquiry report was submitted. The petitioner has been dismissed after retirement which is not valid.
10. Per contra, Mr. Anoop Kumar Mehta, learned counsel for the respondent-Coal India Limited submitted that there is provision of appeal under
Clause 36.1 of the C.D.A., Rules. The petitioner has preferred appeal and in that view of the matter, the writ petition is fit to be dismissed. Against
the order of controlling authority, the respondents preferred appeal under Sub- clause (7) of Section 7 of the Payment of Gratuity Act, 1972 before the
Deputy Chief Labour Commissioner (Central), Dhanbad which was allowed and the order of controlling authority has been set-aside. He submitted
that the petitioner has nowhere stated that he has challenged the order of appellate authority which is under the Payment of Gratuity Act. He referred
to Clause 12.4.2 of the Coal India Executives Leave Rules, 2010 and submitted that earned leave is not eligible to a person who has been terminated
on the disciplinary ground. He referred to Clause 12.5 of the Coal India Executives Leave Rules, 2010 (Encashment of Half Pay Leave) and
submitted that half pay leave is not permissible to an employee whose service has been terminated pursuant to disciplinary action. By way of referring
Rule 34.0 of the Conduct of Coal India Executive Disciplinary and Appeal Rules, 1978, he submitted that special procedure is prescribed for
continuation of disciplinary proceeding and in view of Rule 34.2, disciplinary proceeding was allowed to be continued.
11. Learned counsel for the respondent-Coal India Limited submitted that so far as, the judgment in 'Jaswant Singh Gill' (supra) case is concerned, the
said judgment has been over-ruled by the Hon'ble Apex Court in Civil Appeal No. 9693 of 2013, in the case of ""Chairman-cum-Managing Director,
Mahanadi Coalfields Limited Vs. Rabindranath Choubey"" reported in (2020) SCC Online SC 470. By way of referring page 54 of the writ petition he
submitted that along with letter, enquiry report is enclosed and the contention of the learned senior counsel for the petitioner that enquiry report has not
been supplied, is not correct. He submitted that reply of enquiry report is contained in Annexure-12. The petitioner was dismissed by a speaking order.
He submitted that acquittal in criminal proceeding does not mean to reinstatement in service. Dismissal has taken place earlier and acquittal is after
the petitioner has filed appeal as contained in Annexure 15/1, which is still pending.
12. By way of reply, learned senior counsel for the petitioner submitted that petitioner is suffering from cancer. He submitted that the order passed by
the appellate authority under the Payment of Gratuity Act has already been challenged in W.P.(S) No. 1063 of 2016. He submitted that no appeal has
been filed by Annexure 15/1, it is not in format of appeal rather it is merely representation and appeal lies before the Board of Directors.
13. All these aspects advanced by the learned counsel for the parties, the Court has come to its final consideration of the facts and law laid down by
the learned counsel for the parties. It is an admitted fact that the enquiry was initiated in the year, 2004 and the enquiry report was submitted in the
year, 2012 after eight years under letter dated 30.06.2017 contained in Annexure-11 which is under the signature of Chairman-cum-Managing
Director- Disciplinary Authority. That enquiry authority has submitted report on 10.07.2012 finding that due to lack of evidence, charge could not be
established and it has been observed in the said letter that there was no evidence for demanding illegal gratification of Rs. 500/- as recovered from the
petitioner. From this letter, which is document issued by the Disciplinary Authority pursuant to representation of the petitioner. Enquiry report shows
as stated in letter that the petitioner has been exonerated by the enquiry officer. The petitioner has also been acquitted in the criminal case by the
competent Court as prosecution has not been able to establish charge levelled against the petitioner under Section 7, 13 (2) r/w Section 13 (1) (d) of
the Prevention of Corruption Act. It is not in dispute that the petitioner has been acquitted from the charges in criminal case as well as before the
enquiry officer. In the departmental proceeding and criminal case there is identical and similar set of facts and evidence. The charges in the
departmental proceeding and before the criminal court are one and the same, where in both the proceeding, the petitioner has been acquitted. There is
no iota of difference in criminal proceeding and departmental proceeding. From the rules and regulations adopted for punishment of the petitioner, it
appears to be pre-occupied mind of the disciplinary authority. This is not a case of a person who has been acquitted in criminal case and held guilty in
departmental proceeding. In both the proceeding, the petitioner has been exonerated. The order of termination is prospective in nature however, it has
been given effect to retrospective.
14. On query from the Court, Mr. Mehta submitted that appeal lies before the Board of Directors and Board of Directors meeting is being held after
interval of three to four months. On perusing the Annexure15/1, it transpires that this is not an appeal before the Board rather it is a representation.
Order passed by the appellate authority under the Payment of Gratuity Act is the subject matter in W.P.(S) No. 1063 of 2016. Thus, objection of the
learned counsel of Coal India is not sustainable. On these premises as discussed here-in-above, sufficient ground of interference is made out by this
Court.
15. In the case of Chairman-cum-Managing Director, Mahanadi Coalfields Ltd. (supra), the Hon'ble Supreme Court at para 62 overruled the decision
in 'Jaswant Singh Gill' (supra). In this judgment, the Hon'ble Supreme Court came to the conclusion that dismissal from service are not open to be
inflicted on conclusion of the disciplinary proceedings. The relevant paragraph are reproduced here-in-below:
73.Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed
and set aside and is accordingly hereby quashed and set aside and the order passed by the Controlling Authority is hereby restored. However, the
appellant-employer is hereby directed to conclude the disciplinary proceedings at the earliest and within a period of four months from today and pass
appropriate order in accordance with law and on merits and thereafter necessary consequences as per Section 4 of the Payment of Gratuity Act,
1972, more particularly Sub-section (6) of Section 4 of the Gratuity Act and Rule 34.3 of the CDA Rules shall follow. The present appeal is
accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
16. While concurring with judgment of Hon'ble Mr. Justice M.R. Shah, Hon'ble Mr. Justice Ajay Rastogi added as :
101. To sum up, my conclusion to the question is as under:-- Que. 1-Whether it is permissible in law for the employer to withhold the payment of
gratuity even after the employee has attained his superannuation from service because of the pendency of disciplinary proceedings against him?
Ans. I am in agreement with the view expressed by brother Justice Shah that in view of Rule 34.3 of the Rules, 1978, the employer has a right to
withhold gratuity during pendency of the disciplinary proceedings.
Que. 2- Whether the penalty of dismissal could be imposed after the employee stood retired from service?
Ans. In my considered view, after conclusion of the disciplinary inquiry, if held guilty, indeed a penalty can be inflicted upon an employee/delinquent
who stood retired from service and what should be the nature of penalty is always depend on the relevant scheme of Rules and on the facts and
circumstances of each case, but either of the substantive penalties specified under Rule 27 of the Rules, 1978 including dismissal from service are not
open to be inflicted on conclusion of the disciplinary proceedings and the punishment of forfeiture of gratuity commensurate with the nature of guilt
may be inflicted upon a delinquent employee provided under Rule 34.3 of Rules, 1978 read with sub- section (6) of Section 4 of the Act, 1972.
102.To conclude, the impugned judgment of the High Court th dated 17 July, 2013 is not sustainable and deserves to be set aside and the disciplinary
authority may proceed and conclude the pending disciplinary proceedings expeditiously and take a final decision in accordance with the scheme of
Rules, 1978 read with sub-section (6) of Section 4 of the Payment of Gratuity Act, 1972.
17. In the above case it has been held that dismissal from services are not open to be inflicted on conclusion of the disciplinary proceedings. In present
case the petitioner has been exonerated in disciplinary proceedings and in criminal case he has been acquitted. Thus, charges against the petitioner are
not framed. To remit back the matter will be a futile exercise as in departmental proceedings and in criminal proceedings the petitioner has been
exonerated.
18. As a cumulative effect of above discussions and in view of the sufficient materials available on record, the writ petition succeeds. Accordingly, the
impugned penalty of deemed dismissal of the petitioner dated 10.11.2017 is quashed. Consequently, the petitioner will be entitled for leave encashment
with interest. So far payment of gratuity is concerned that will depend on the outcome of W.P.(S) No. 1063 of 2016 in which petitioner has challenged
the order of appellate authority passed under the Payment of Gratuity Act. The petitioner has already chosen a remedy under the statutory provision
of that Act, thus, the Court is restrained to pass any order on the point of gratuity.
19. The writ petition stands allowed and disposed of. Pending I.A., if any, stands disposed of.
