WRIT PETITION 7796 of 2016 on 23 February 1977

1. The Food Corporation Of India through the Managing Director, 16-20Barakhamba Lane, New Delhi.Barakhamba Lane, New Delhi.

2. The Executive Director, East Food corporation of India,10-A MiddletionRoad, Kolkatta-71. Road, Kolkatta-71.

3. The General Manager Food corporation of India,Arunachal Bhawan,Exibition Road,Patna. Exibition Road,Patna.

4. The Area Manager,Food Corporation of India,Gaya.

5. The Manager,District Office,Food Corporation of India,Gaya.

... ... Respondent/s

Appearance :For the Petitioner/sFor the FCI

: Mr. Anant Kumar Bhaskar: Mr. P.K. Verma, Sr. Adv. Mr. Dr. Anand Kumar, Adv.

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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMANORAL JUDGMENT

Date : 29-04-2025

Heard learned counsel for the petitioner and learnedsenior counsel for the Food Corporation of India.

2. Learned counsel for the petitioner submits that thepresent writ petition has been filed for the issuance of a writdirecting the competent respondent to grant full gratuity to thepetitioner with interest, amounting to Rs. 10,00,000/- (RupeesTen Lakhs), based on the last drawn salary by him, instead ofRs. 4,23,294/- (Rupees Four Lakh Twenty-Three Thousand TwoHundred Ninety-Four), which was calculated on the basis of the punishment order contained in reference letter No. 690 dated19.01.2015, a copy of which was served upon the petitioner on11.02.2015.

3. Learned counsel for the petitioner submits that thepetitioner was appointed in the Food Corporation of India in theyear 1973, and with the span of time, he was promoted initiallyto Assistant Grade II, and subsequently to Assistant Grade III.Counsel further submits that during his service, a departmentalproceeding was conducted against the petitioner, in which thepetitioner was imposed a punishment vide order No. 683 dated19.01.2015, with punishment of, “ A penalty of reduction to theinitial pay in the time scale pay of AG II (D) till retirementalong with the recovery of Rs. 1.50 Lakhs (Rupees One LakhFifty Thousand) only from terminal benefits, excluding gratuity.Counsel further submits that the gratuity of the employee is usedto be paid according to the special law, namely, the Payment ofGratuity Act, 1974 (hereinafter referred to as the Act of 1974).Counsel further submits that according to Section 4 of the Act of1974, the total work period of the petitioner in FCI is 38 years(37 years, 11 months, and 2 days), from the date of his initialappointment in the FCI, i.e., 23.02.1977 and his date ofretirement is 31.01.2015.

4. Counsel further submits that the pay scale issued tothe petitioner, which is annexed as Annexure-9, indicates thathis last drawn salary was Rs. 57,465/- (Rupees Fifty-SevenThousand Four Hundred Sixty-Five), and as per the calculationunder Section 4(2) of the Act of 1974, the gratuity amountcomes to Rs. 12,59,809.61/- (Rupees Twelve Lakh Fifty-NineThousand Eight Hundred Nine and Sixty-One Paise). However,since the upper ceiling for gratuity payment is Rs. 10,00,000/-(Rupees Ten Lakh), he submits that the petitioner is entitled toreceive the full admissible amount of Rs. 10,00,000/- as gratuity.Despite this, the Food Corporation of India has paid only Rs.4,23,294/- (Rupees Four Lakh Twenty-Three Thousand TwoHundred Ninety-Four) to the petitioner. Counsel further submitsthat the petitioner is entitled to the balance amount of gratuityalong with 18% compound interest. He also submits that thepetitioner filed a detailed representation before the respondenton 09.11.2015, but no action has been taken till date. Therefore,the petitioner has filed the present writ petition before thisCourt.

5. Learned senior counsel for the Food Corporation ofIndia submits that the petitioner had challenged the punishmentorder dated 19.01.2015 before this Hon’ble Court in CWJC No.

15984 of 2015, and after the disposal of the said writ petition, hefiled a Civil Review bearing No. 290 of 2023, which is stillpending. Counsel further submits that here punishment order isnot challenged, therefore, what is to be decided it has to bedecided in the light of decision dated 19.01.2015. He submitsthat the affect of the punishment order, the petitioner's lastdrawn salary has deducted, and accordingly, the gratuity amountwas automatically deducted, when calculated under Section 4(2)of the Act of 1974. Counsel submits that the punishment ordershall prevail upon the petitioner and only due to this reason thegratuity of the petitioner has deducted.

6. Learned senior Counsel relied on the judgment of the Hon'ble Supreme Court of India in the case of Chairman-cum-Managing Director, Mahanadi Coalfields Limited v.Rabindranath Choubey, reported in AIR 2020 SC 2978, andsubmits that it is well within the power of the disciplinaryauthority to withhold the gratuity. The employer can withholdthe payment of gratuity to the employee even after hissuperannuation from service, in light of the pendency ofdisciplinary proceedings against him. Counsel further submitsthat in the present case, the disciplinary proceeding was pendingagainst the petitioner for a long period during his employment, and a specific order was passed regarding the deduction of thepay scale, which definitely affect his entitlement to gratuity.However, the gratuity was calculated in accordance with theprovisions of the Act of 1974. Counsel further submits that thepetitioner’s gratuity has been duly calculated after the finalorder was passed and has been paid as per Annexure-A of thesupplementary counter-affidavit filed by the respondent.

7. After hearing the parties and upon perusal of theorder dated 19.01.2015, it transpires to this Court that the onlydispute between the parties is the determination of the amountof gratuity. Section 7(2) of the Act of 1974 clearly provides thatit is the Controlling Authority who is competent under law todetermine the amount of gratuity payable. The petitioner hassubmitted a representation before the authority, which isannexed as Annexure-10, however, it transpires to this Courtthat no response has been made by the employer. Instead, thegratuity has been calculated solely in light of the punishmentorder dated 19.01.2015. The petitioner is aggrieved by thisdecision and submits that the petitioner is not entitled to onlyRs. 4,23,294/- (Rupees Four Lakh Twenty-Three Thousand TwoHundred Ninety-Four) but rather to the full admissible amountof gratuity, i.e., Rs. 10,00,000/- (Rupees Ten Lakh).

8. In this background, the writ petition standsdisposed of with a direction to the petitioner to file anapplication before the Controlling Authority under the Act of1974 within 30 days from the date of receipt or production ofthis order. The Controlling Authority, upon issuance of notice toboth the employer and the employee, shall determine theamount of gratuity payable in accordance with law. Thereafter,the petitioner shall be at liberty to pursue any legal remedyavailable to him under the provisions of the Act of 1974.

(Dr. Anshuman, J.)

Aman Kumar/-

AFR/NAFRCAV DATENAUploading Date06.05.2025Transmission DateNA