SARAN KUMAR NANDA vs THE LABOUR COMMISSIONER AND OTHERS

IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]

PRESENT: THE HON'BLE JUSTICE AMRITA SINHA

WPA/397/2026
IA No. CAN/1/2026

SARAN KUMAR NANDA … PETITIONER
Vs.
THE LABOUR COMMISSIONER AND OTHERS … RESPONDENTS

Petitioner (in person) : Mr. Saran Kumar Nanda

For the respondent No. 1 & 2 : Mr. Rakesh Kumar

Respondent no.3 ( in person) : Mr. Raghunath Guchhait

Heard on : August 31, 2026

Judgment delivered on : August 31, 2026


AMRITA SINHA, J.

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1. The order dated 13 July, 2026 passed by the Appellate
Authority and Assistant Labour Commissioner (HQ) affirming the
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order dated 06 February, 2026 passed by the Controlling Authority
under the Payment of Gratuity Act, 1972 is impugned in the instant
writ petition by the proprietor/owner under whom the respondent
no. 3 was employed.
2. According to the employer, the employee is guilty of moral
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turpitude. He was caught red handed on 30 October, 2019 in the
act of throwing away new spare parts in the dustbin with the

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intention of selling them off in the open market at a later point of
time. Throwing away of new spare parts would result in financial
loss to the employer.
3. Upon being caught, the employee submitted a written
confession on the same date admitting his mistake. Since thereafter
the employee never turned up in the office of the petitioner for
continuing with his job. Gratuity will not be payable to the employee
as he is guilty of moral turpitude.
4. The employee with mala fide intention approached the Labour
Commissioner alleging non-payment of wages. The petitioner
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submits that there is no question of payment of wages after 30
October 2019 as the employee never reported to duty.
5. It has been submitted that the employee never lodged any
complaint before the police mentioning that the confessional
statement was obtained upon exercising force, coercion or undue
influence. As the employee admitted his guilt, there is no
requirement of drawing up any further proceeding against him.
According to the petitioner, the authority ought not to have passed
order directing payment of gratuity.
6. In support of such submission, the petitioner relies on the
decision passed by the Hon’ble Supreme Court in the matter of
Deputy Commissioner, Kvs and others vs. J. Hussain reported in

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(2013) 10 SCC 106 wherein the Hon’ble Supreme Court held that
in exercise of power of judicial review, the Court can interfere with
the punishment imposed when it is found to be totally irrational or
is outrageous in defiance of logic.

7. Reliance has also been placed on the judgment delivered by
the Hon’ble Supreme Court in the matter of Western Coal Fields
Limited vs. Manohar Govinda Fulzele reported in (2025) SCC
OnLine SC 345 wherein the issue of permissibility of forfeiture of
gratuity, in the event of termination of service on misconduct
without there being any conviction in a criminal case or even a
criminal proceeding having been initiated was adjudicated. The
court held that when the appointment itself is invalid for reason of
suppression of actual date of birth and production of forged
certificate, there is no question of payment of gratuity to a
terminated employee.
8. Prayer has been made to set aside the orders passed by the
Appellate Authority and the Controlling Authority.
9. The employee being the respondent No.3 appears in person
and relies upon the affidavit-in-opposition filed by him.
10. It has been submitted that the employer never terminated his
engagement formally. The confessional statement relied upon by the
employer was obtained by exercising force and upon threat of

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termination from service. The respondent No.3 was entrusted with
several duties and responsibilities. He admitted his mistake but his
admission has been illegally sought to be construed as a
confessional statement of an illegal act. It was only for sustaining
his livelihood, the respondent No.3 in his own handwriting,
submitted the statement.
11. On receiving the statement from the respondent no.3, the
petitioner, without granting any opportunity to the respondent no.3
to defend his case, intentionally and deliberately disengaged him
from service. The respondent no.3 was not paid his wages for the
month of October 2019 for which the employee was compelled to
approach the Labour Commissioner for payment of wages. After
full-fledged hearing, the Labour Commissioner passed direction for
payment. Two cheques were issued by the employer, but only one
has been honored and the other dishonored. The cheque was
returned to the employee by his banker with the endorsement
‘stoppage of payment’.
12. Despite rendering service for more than fourteen years,
gratuity was not paid to the respondent No.3 for which a proceeding
was initiated before the Controlling Authority where direction was
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passed for payment of gratuity amount along with interest from 30
November, 2019 till the date of actual payment.

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13. The respondent no.3 categorically denies and disputes the
allegation of moral turpitude. He, however, admits that a mistake
may have been committed by him in view of the immense work
pressure upon him, but there was no mala fide or ill-intention on
his part to cause any financial loss to the employer.
14. Prayer has been made to direct the authority to release the
gratuity which has since been secured by the employer.
15. Learned advocate representing the official respondents
submits that in the absence of proper proof of moral turpitude
resulting in termination, the employer would be legally bound to pay
the statutory dues of the employee as he rendered service for more
than fourteen years.
16. The respondents pray for dismissal of the writ petition.
17. Upon hearing the submissions made on behalf of both the
parties and on perusal of the materials placed before the Court it
appears that, the employer holds on to the confessional statement
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admittedly written by the employee in his own handwriting on 30
October, 2019 admitting his guilt.
18. According to the petitioner, the employee being well aware
that he was caught red handed at the time of committing the illegal
act of throwing away new spare parts in the dustbin with the
intention to sell it off in the open market at a later stage, he

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deliberately did not turn up for work on and from the next day. The
petitioner contends that the employee never lodged any complaint
before the police mentioning that the confessional statement was
obtained by exercising force, coercion or undue influence. As per the
employer, facts admitted need not be proved.
19. It appears that though there is no complaint from the side of
the employee, but at the same time, there is nothing on record from
the side of the employer to show that any opportunity was granted
to the employee to defend the allegation of moral turpitude leveled
against him. There is not a single scrap of paper to suggest that the
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service of the employee stood terminated on and from 30 October,
2019.
20. The petitioner submits that the employee fell on the feet of the
employer and prayed for mercy before him. Showing lenience to the
employee, complaint was not lodged before the police. Neither any
criminal proceeding was initiated against the employee.
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21. Though the employer contends that on or from 30 October,
2019, the employee abandoned the job and never reported to work,
but to prove such statement, the employer ought to have maintained
certain records.
22. The fact finding authority, being the Controlling Authority
after a full-fledged hearing formed to a considered opinion that the

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employer would be liable to pay gratuity to the employee. The said
order of the Controlling Authority has been affirmed by the Appellate
Authority.
23. In exercise of the power of judicial review under Article 226 of
the Constitution of India, this Court would be required to adjudicate
as to whether the finding arrived at by the competent authority was
in accordance with the law or not. Without any valid document to
show the deliberate absence of the employee from attending service,
the allegation of moral turpitude levelled by the employer against
the employee cannot be said to be proved.
24. As per the Act, gratuity is payable to an employee on
termination of his employment after he has rendered continuous
service for not less than five years. The alleged confessional
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statement dated 30 October, 2019, heavily relied upon by the
petitioner, clearly mentions that the employee is in service since
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2005. Assuming that his service stood formally terminated on 30
October, 2019, then also he would be entitled to gratuity.
25. According to the Act, gratuity of an employee may be forfeited
for any act of negligence causing damage or loss to the employer.
Gratuity can also be forfeited if the service of the employer is
terminated for any act which constitutes an offence involving moral
turpitude committed by him in the course of his employment.

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26. In the case at hand, the employer did not issue any formal
letter or order of disengagement or termination of service of the
employee allegedly on the ground that the employee himself did not
turn up for duty. The said alibi of the employer cannot come to his
aid for the purpose of not issuing a formal order of termination of
the employee.
27. The petitioner has also not disputed the period of service of
the employee. The Controlling Authority arrived at a conclusive
finding that the employee was in service for more than fourteen
years prior to his alleged termination.
28. The precedent of the Hon’ble Supreme Court relied upon by
the petitioner in the matter of Western Coal Fields Limited (supra)
deals with a case where a delinquent employee of the bank was
dismissed from service pursuant to allegation of misconduct which
stood proved in a departmental proceeding.
29. In the instance case, there is no proceeding at all. There is not
a single document to show that the service of the employee was
terminated in accordance with law. Accordingly, the ratio laid down
in the cited judgment does not help the petitioner in any manner.
30. In J. Hussain (supra), the Court specifically held that
interference in judicial review can be made only if the punishment
imposed is found to be irrational or outrageous.

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31. Here, the employee does not challenge any punishment. In
fact, there is no order of punishment at all. The issue is the gratuity
amount that is payable to an employee on his termination in terms
of the provisions of the Payment of Gratuity Act, 1972.

32. There is nothing on record to suggest that the employee did
not render more than fourteen years of service. There is also no
proceeding or order whereby the allegation of moral turpitude
levelled against the employee has been proved. The allegation of the
employer seeking to deny the rightful claim of the employee for
payment of gratuity cannot be taken to be sacrosanct or gospel
truth. The allegation ought to have been proved before a competent
forum.
33. In the absence of proper proof of moral turpitude, the
employee would be entitled to receive gratuity in accordance with
the provisions of the Act. Moreover, the employer ought to have
given notice to the employee of the proposed action of forfeiting
gratuity. Any decision to forfeit gratuity can be taken only after
affording opportunity of hearing to the employee. The same has not
been done in the instant case.
34. The Controlling Authority upon perusal of all details and upon
hearing the submissions made on behalf of both the parties have
come to a considered opinion that the employee would be eligible to

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receive gratuity and passed order accordingly. The Appellate
Authority affirmed the order passed by the Controlling Authority.
35. This Court does not find any infirmity with the direction
passed by either the Controlling Authority or the Appellate
Authority. The scope of judicial review under Article 226 is
extremely limited. No case has been made out by the petitioner for
interference by this Court.
36. The amount of gratuity assessed by the Controlling Authority
has already been secured by the employer.
37. The Controlling Authority is directed to release the gratuity
amount to the respondent No. 3/employee upon compliance of all
necessary formalities at the earliest.
38. The writ petition fails and is hereby dismissed.
39. In view of dismissal of the writ petition, the connected
application being I.A. CAN/1/2026 stands disposed of.
40. There shall, however, be no order as to costs.
41. All parties are directed to act on a server copy of this
judgment duly downloaded from the official website of this Court.

( AMRITA SINHA, J. )