Calcutta High Court (Appellete Side)
M/S. Xpro India Limited vs The State Of West Bengal & Ors on 28 August, 2025
2025:CHC-AS:1674
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
WPA 4620 of 2025
M/s. Xpro India Limited.
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Nayan Rakshit,
Mr. Nilay Rakshit.
For the Respondent no. 4 : Mr. Atanu Biswas,
Mr. Mrinal Saha.
For the State : Mr. Avijit Sarkar,
Mr. Abdus Salam.
Hearing concluded on : 01.08.2025
Judgment on : 28.08.2025
Shampa Dutt (Paul), J.:
1. The present writ application has been preferred against orders dated
09.02.2024 and 30.12.2024 passed by the Controlling Authority
and the Appellate Authority respectively.
2. The petitioner is a company incorporated under the companies Act,
1956 and performing as the sole Dielectric Film Manufacturer in
India.
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3. The private respondent no. 4 was appointed w.e.f. 01.08.2012 in
the petitioner company as a technician.
4. It is further stated that the private respondent being in a
responsible position was privy to various process, techniques,
recipes which are developed with the company over the years
thorough research and in house experimentation which was strictly
confidential in nature and not to be shared outside the company
but it was found that the private respondent violated the terms of
employment and was playing the role of a middleman in contracting
with another company and trying to set up another company, of
Capacitor Film Manufacturing plant and after receiving proof of the
same, the company issued show cause letter dated 21.07.2022 to
the private respondent and suspended him from service.
5. On receiving response from the private respondent, the company
conducted a domestic enquiry and on receiving the notice of enquiry
in which he did not participate, the private respondent decided to
tender his resignation on 15.08.2022, but the resignation was not
accepted by the management/petitioner herein.
6. The enquiry proceeding was completed and on the basis of the
report of the enquiry officer, the private respondent was terminated
from service and admittedly the private respondent did not
challenge the said enquiry report nor the order of termination
passed on 11.10.2022.
7. It is the further case of the petitioner that as the private respondent
was terminated from service due to misconduct and such
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misconduct is nothing but moral turpitude and therefore due to loss
sustained by the petitioner, his gratuity was forfeited by the order
dated 22.11.2022 under Section 4(6) of the payment of Gratuity Act,
1972. The charges against the private respondent was further
proved, when he admittedly joined the rival company.
8. The private respondent then submitted an application for gratuity to
the petitioner on 06.12.2022 and subsequently on 16.01.2023 filed
an application under Form N to the learned Controlling Authority
for payment of Gratuity.
9. The petitioner submitted their explanation in connection with the
said claim of gratuity. After hearing the parties the Controlling
Authority passed an order dated 09.02.2024 in favour of the private
respondent directing the appellant company to pay gratuity amount
of Rs. 1,37,308/- along with interest @ 10% P.A. on and from
11.10.2022 till the payment within 30 days from the receipt of the
direction. On the following findings:-
“………..In this instant case, though the Opposite Party
Co. arranged Domestic enquiry against the alleged
misconduct of the applicant but neither they had
registered any FIR nor had filed any criminal complaint
before a competent court of law to establish the
misconduct or offence of the Applicant. There is no
conviction of the applicant for the alleged “serious nature
of the misconduct” which according to the Opposite
Party Co. is an offence involving moral turpitude. Hence,
the offence of the applicant is not established. Hence,
there is no justification for the forfeiture of gratuity as
mentioned in termination notice issued by the Opposite
Party Co. dated 21.11.2022 and the applicant is rightly
entitled for Gratuity.
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In this instant Case, for calculation of Gratuity
amount the length of service is 10 years (01.08.2012 to
31.07.2022).
The last drawn salary (Basic component) was Rs.
23.800/-.
Hence, gratuity entitlement of the applicant as per
explanation of Sec.4 (2) of the Payment of Gratuity Act
1972 would be as follows:-
(Rs. 23,800/26) x 15 x 10 = Rs 1, 37, 307.69 (Rounded
off Rs. 1, 37.308/).
(Rupees One Lakh Thirty-Seven Thousand Three
Hundred and Eight only)
Now, Sec.7 (3) of the Payment of Gratuity Act, 1972
specifies that the gratuity should be paid within 30
days from the date it becomes payable, which in this
case is 11.10.2022 and there being delay in payment.
u/s 7(3A) of the Act, the Opposite Party Co., is liable to
pay simple interest @ 10% on the amount payable, with
effect from 11.10.2022 to the date on which it is actually
paid to the applicant.
The Opposite Party Co… M/s Xpro India Limited
(Biax Division Barjora-Unit II) is hereby directed to pay
the applicant Sri Sudip Samanta, an amount of Rs.
1,37,308/- (Rupees One Lakh Thirty-Seven Thousand
Three Hundred and Eight only) as the gratuity amount
to which the applicant is entitled Furthermore, u/s 7
(3A) of the Act. Simple Interest @ 10% per annum on Rs.
1,37,308/- (Rupees One Lakh Thirty-Seven Thousand
Three Hundred and Eight only) with effect from
11.10.2022 to the date of actual payment, is to be paid
by the Opposite Party Co. to the applicant within 30
days from the receipt of the direction in Form-R along
with this findings.
The application in Form-N submitted by the
applicant is thus disposed off.
Sd/-
Controlling Authority,
Under the Payment of Gratuity Act, 1972
&
Assistant Labor Commissioner Bankura”
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10. Being aggrieved, the petitioner preferred an appeal. The Appellate
Authority vide an order dated 30.12.2024 upheld and confirmed the
order of the learned Controlling Authority. Hence the writ
application.
11. It appears from the materials on record, the domestic enquiry report
at page 28 of the writ application, that the allegation against the
private respondent is that Mr. Samanta is in regular in touch of
such a rival company who is trying to set up an unit for di-electric
film manufacture and the private respondent was passing the
process, receipt, technology and confidential information of the
petitioner/company. He also played a key role of a middleman in
contacting employees of various departments for the purpose of
helping the rival company to set up a similar capacitor. Mr.
Samanta when was on sick leave on 16th and 17th July, 2022, he
called up several employees of the company and also contacted a
rival company, when he would abstain from duty. So the company
show caused Mr. Samanta as initially his conduct was against
clause 4 of the appointment letter and clause 5 (a) and (c) of such
letter and that within 48 hours he was demanded explanation.
12. It also appears from the said report that the copies of documents
requested by the private respondent was not handed over to him
as he did not attend the domestic enquiry and he had left the
company.
13. The relevant finding of the Enquiry Officer at page 30 to the
writ application is reproduced here:-
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“…………..That the presenting officer did not produce any
employer who had been contacted by Mr. Samanta for passing
out classified information of the company as alleged. Company
also could not produce any record of phone call of Mr.
Samanta to prove that he contacted the rival company and/or
was keeping in touch with the rival company. In this context,
the presenting officer submitted that since Mr. Samanta is
absent, it could not be possible to gather data from his cell
phone now.
However, as per my direction vide Order No. 1, the
presenting officer in writing claimed that on 17th July of 2022
at about 9.30 a.m. Mr. Sudip Samanta was found in a meeting
with the personnel of rival company in Peerless Hotel,
Durgapur right outside the main entrance of the hotel.
That in this context, the presenting officer produced
extract of the security register of colony gate of the company,
where it is found that Mr. Sudip Samanta left the colony at
8.05 a.m. and returned at 18.17 p.m.
That the company produced three witnesses:-
(a) Sri Ritesh Chakraborty (Officer Admin & Security)
(b) Sri Shuvendu Goswami (Sr. Asst. Employee)
(c) Sri Bishnu Dey (Sr. Officer [P &A]
From their separate respective declarations, it is
ascertained that having tip, the company engaged them to
look out at the front gate of the Peerless Hotel, City Centre,
Durgapur. On 17.07.2022 that a rival company, M/s. Jindal
Polyfilms Ltd. is arranging interview of the employee of the
company through their personnel as recognized Mr. Sourav
Saxena, Mr. A. Pathak, Ms. Debjani Dasgupta. They also saw
that Mr. Samanta arrived at the front gate of such hotel and
aforesaid persons came out and after having brief
conversation, they left in a white private car.”
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14. Finally the Enquiry Officer held the private respondent to be guilty
of the charge as framed.
15. In State Bank of India & Ors. vs Ratan Kumar Rabbai & Ors.,
2022 SCC OnLine Cal 1218, wherein the Court held:-
“11. The contention of the respondent no. 1 is that
gratuity under the 1972 Act could not be withheld by
the employer on the ground of pendency of the
disciplinary proceedings as the right to get gratuity
accrued in terms of the 1972 Act immediately on the
date of his superannuation that is on 30.11.2011. On
the other hand the employer contended that an
employee against whom disciplinary proceedings can
continue even after superannuation in accordance with
the service rules cannot be treated as a superannuated
employee and punishment of dismissal/termination
can be inflicted even after the superannuation.
According to employer, an employee governed by the
service rules could not have applied for gratuity before
completion of the disciplinary proceedings.
17. The judgment in Jaswant Singh Gill (supra) was
overruled by the larger bench in Rabindranath
Choubey (supra) inter alia for the reasons that the
authority under the Payment of Gratuity Act, 1972 had
no jurisdiction to go into the legality of the order of
disciplinary authority which was not questioned. It
was further observed that in Jaswant Singh
Gill (supra) the court did not consider the scope of the
provisions of the Payment of Gratuity Act, 1972 and
the provisions of the service rules providing legal fiction
of employee deemed to be in service even after
superannuation.
18. In the case on hand the appointing authority in the
order dated 10.08.2012 returned a finding that the
chargesheeted officer has been chiefly responsible for
the financial loss of Rs. 1.90 crores to the bank. On
such finding the chargesheeted officer was inflicted
with the penalty of removal from service under Rule
67(i) of SBIOSR and forfeiture of entire gratuity in
terms of Section 4 of the 1972 Act. The said order had
attained finality and is thus binding upon the employee
and the employer.
19. The principle laid down in Jaswant Singh
Gill (supra) was the basis for passing the order by the
appellate authority under the 1972 Act. The
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observations made in Rabindranath Choubey (supra)
while overruling Jaswant Singh Gill (supra) are clearly
applicable to the facts of the instant case as the order
of punishment inflicted upon the employee is not under
challenge. The reasons assigned by the appellate
authority under the 1972 Act against forfeiture of
gratuity was in view of the decision in Jaswant Singh
Gill. Since Jaswant Singh Gill (supra) stands overruled,
the order of the appellate authority under the 1972 Act
cannot be sustained in the eye of law. In view of the
observations in Rabindranath Choubey (supra) it
cannot also be said that Jaswant Singh Gill’s case is a
possible view as held by the learned Single Judge and
as such the same also calls for interference.
20. This Court is, therefore, of the considered view that
the Appellate Authority while exercising its power
under the 1972 Act cannot act as the Appellate
Authority of the disciplinary authority imposing the
punishment. An authority exercising powers under
1972 Act, which in the instant case is the appellate
authority, had no jurisdiction to deal with the order of
punishment passed by the disciplinary authority. The
said authority could not sit in appeal over the order of
punishment of the disciplinary authority and modify or
set aside the order of the disciplinary authority
forfeiting the gratuity. Since the order of punishment is
not the subject matter of challenge in this appeal, this
Court does not deem necessary to deal with the
argument of Mr. Basu that the gratuity could not have
been forfeited in a case of removal from service.
23. A Division Bench of the Madras High Court by a
judgment dated 23.08.2021 passed in W.A. No. 1558
of 2011 and M.P. No. 1 of 2011 in the case of The
Management, Coimbatore District Central Co-operative
Bank Ltd. v. N. Somasundaram while dealing with a
case involving recovery of loss caused to the bank held
that since the surcharge proceedings has come to an
end it was open to the authorities to recover the loss by
invoking the provisions of the Revenue Recovery Act
from the employee but the gratuity cannot be withheld
in view of Section 13 of the Payment of Gratuity Act.
The said decision is distinguishable on facts and as
such the same has no manner of application to the
facts of the instant case.”
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16. In Western Coal Fields Ltd. vs Manohar Govinda Fulzele, in
Civil Appeal No. 2608 of 2025, dated 17th February, 2025,
wherein the Supreme Court held:-
“2. The question raised in the above cases is the
permissibility of forfeiture of gratuity, in the event of
termination of service on misconduct, which can be
categorised as an act constituting an offence involving
moral turpitude; without there being any conviction in a
criminal case or even a criminal proceeding having
been initiated.
10. As has been argued by the learned Solicitor
General and the learned Counsel appearing for
MSRTC, subclause (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 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
102025:CHC-AS:1674
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 .
15. The appointment itself being illegal, there is no
question of the terminated employee seeking fruits of
his employment by way of gratuity. We uphold the
decision of the PSU forfeiting his entire gratuity.
However, in the case of conductors (Civil Appeal
No._____________ @SLP (C) No.21957 of 2022), we see
that the act alleged and proved is of misappropriation
of meagre amounts. It is trite that even if minimal
amounts are misappropriated it would constitute a
misconduct warranting termination, as held by this
Court. However, on the question of forfeiture of
gratuity, we are of the opinion that the Appointing
Authority should have taken a more sympathetic
approach. We do not propose to send back the
matter for fresh consideration but direct the
Appointing Authority to limit the forfeiture to
25% of the gratuity payable and release the
balance amounts to the respondent employees.”
This Court also considered the judgments in:-
i. Union Bank of India vs C.G. Ajay Babu, (2018) 9 SCC 529.
ii. Jaswant Singh Gill vs M/s. Bharat Coking Coal Ltd. & Ors.,
(2007) 1 SCC 663.
iii. Chairman cum Managing Director, Mahanadi Coalfields
Limited vs Sri Rabindranath Choubey, (2020) 18 SCC 71.
17. Section 4 Payment of Gratuity Act, 1972 lays down:-
“4. Payment of gratuity.-(1) Gratuity shall be payable to
an employee on the termination of his employment after he
has rendered continuous service for not less than five
years,-
(a)on his superannuation, or
(b)on his retirement or resignation, or
(c)on his death or disablement due to accident or disease:
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Provided that the completion of continuous service of five
years shall not be necessary where the termination of the
employment of any employee is due to death or
disablement:
[Provided further that in the case of death of the employee,
gratuity payable to him shall be paid to his nominee or, if no
nomination has been made, to his heirs, and where any
such nominees or heirs is a minor, the share of such minor,
shall be deposited with the controlling authority who shall
invest the same for the benefit of such minor in such bank
or other financial institution, as may be prescribed, until
such minor attains majority.]Explanation .-For the purposes of this section, disablement
means such disablement as incapacitates an employee for
the work which he was capable of performing before the
accident or disease resulting in such disablement.
(2)For every completed year of service or part thereof in
excess of six months, the employer shall pay gratuity to an
employee at the rate of fifteen days’ wages based on the
rate of wages last drawn by the employee concerned:
Provided that in the case of a piece-rated employee, daily
wages shall be computed on the average of the total wages
received by him for a period of three months immediately
preceding the termination of his employment, and, for this
purpose, the wages paid for any overtime work shall not be
taken into account:
Provided further that in the case of [an employee who is
employed in a seasonal establishment and who is not so
employed throughout the year], the employer shall pay the
gratuity at the rate of seven days’ wages for each season.
[Explanation .-In the case of a monthly rated employee, the
fifteen days’ wages shall be calculated by dividing the
monthly rate of wages last drawn by him by twenty-six and
multiplying the quotient by fifteen.](3)The amount of gratuity payable to an employee shall not
exceed [such amount as may be notified by the Central
Government from time to time].
(4)For the purpose of computing the gratuity payable
to an employee who is employed, after his
disablement, on reduced wages, his wages for the
period preceding his disablement shall be taken to be
the wages received by him during that period, and his
122025:CHC-AS:1674
wages for the period subsequent to his disablement
shall be taken to be the wages as so reduced;
(5)Nothing in this section shall affect the right of an
employee to receive better terms of gratuity under any
award or agreement or contract with the employer.
(6)Notwithstanding anything contained in sub-section (1),-
(a)the gratuity of an employee, whose services have been
terminated for any act, willful omission or negligence
causing any damage or loss to, or destruction of, property
belonging to the employer, shall be forfeited to the extent of
the damage or loss so caused;
(b)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.
[* * *]”
18. Section 4(6)(b) sub clause (ii) Payment of Gratuity Act, lays down:-
“(6)Notwithstanding anything contained in sub-section (1),-
(a)the gratuity of an employee, whose services have been
terminated for any act, willful omission or negligence
causing any damage or loss to, or destruction of, property
belonging to the employer, shall be forfeited to the extent of
the damage or loss so caused;
(b)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.”
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19. The Supreme Court in the State of Rajasthan and others – vs –
Heem Singh in Civil Appeal No. 3340 of 2020 decided on 29th
October, 2020 held:-
“33. In exercising judicial review in disciplinary matters,
there are two ends of the spectrum. The first embodies a
rule of restraint. The second defines when interference is
permissible. The rule of restraint constricts the ambit of
judicial review. This is for a valid reason. The determination
of whether a misconduct has been committed lies primarily
within the domain of the disciplinary authority. The judge
does not assume the mantle of the disciplinary authority.
Nor does the judge wear the hat of an employer. Deference
to a finding of fact by the disciplinary authority is a
recognition of the idea that it is the employer who is
responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of
natural justice. But they are not governed by strict rules
of evidence which apply to judicial proceedings. The
standard of proof is hence not the strict standard which
governs a criminal trial, of proof beyond reasonable doubt,
but a civil standard governed by a preponderance of
probabilities. Within the rule of preponderance, there are
varying approaches based on context and subject. The first
end of the spectrum is founded on deference and autonomy
– deference to the position of the disciplinary authority as a
fact finding authority and autonomy of the employer in
maintaining discipline and efficiency of the service. At the
other end of the spectrum is the principle that the
court has the jurisdiction to interfere when the
findings in the enquiry are based on no evidence or
when they suffer from perversity. A failure to consider
vital evidence is an incident of what the law regards
as a perverse determination of fact. Proportionality is
an entrenched feature of our jurisprudence. Service
jurisprudence has recognized it for long years in allowing
for the authority of the court to interfere when the finding or
the penalty are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which
have been termed as the two ends of the spectrum. Judges
do not rest with a mere recitation of the hands-off mantra
when they exercise judicial review. To determine whether
the finding in a disciplinary enquiry is based on some
evidence an initial or threshold level of scrutiny is
undertaken. That is to satisfy the conscience of the
court that there is some evidence to support the
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charge of misconduct and to guard against
perversity. But this does not allow the court to re-
appreciate evidentiary findings in a disciplinary enquiry or
to substitute a view which appears to the judge to be more
appropriate. To do so would offend the first principle which
has been outlined above. The ultimate guide is the exercise
of robust common sense without which the judges‟ craft is
in vain.”
20. In B. C. Chaturvedi – vs – Union of Indian and others [(1995) 6
Supreme Court Cases 749 in Civil Appeal No. 9830 of 1995], the
Supreme Court held that :-
“18. A review of the above legal position would establish
that the disciplinary authority, and on appeal the appellate
authority, being fact-finding authorities have exclusive
power to consider the evidence with a view to maintain
discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or
gravity of the misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the conscience of
the High Court/Tribunal, it would appropriately mould the
relief, either directing the disciplinary/appellate authority to
reconsider the penalty imposed, or to shorten the litigation,
it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support
thereof.
23. It deserves to be pointed out that the mere fact that
there is no provision parallel to Article 142 relating to the
High Courts, can be no ground to think that they have not to
do complete justice, and if moulding of relief would do
complete justice between the parties, the same cannot be
ordered. Absence of provision like Article 142 is not
material, according to me. This may be illustrated by
pointing out that despite there being no provision in the
Constitution parallel to Article 137 conferring power of
review on the High Court, this Court held as early as 1961
in Shivdeo Singh case that the High Courts too can exercise
power of review, which inheres in every court of plenary
jurisdiction. I would say that power to do complete justice
also inheres in every Court, not to speak of a court of
plenary jurisdiction like a High Court. Of Course, this power
is not as wide as which this Court has under Article 142.
That, however, is a different matter.
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24. What has been stated above may be buttressed by
putting the matter a little differently. The same is that in a
case of a dismissal, Article 21 gets attracted, and, in view of
the interdependence of fundamental rights, which concept
was first accepted in the case commonly known as Bank
Nationalisation case, which thinking was extended to cases
attracting Article 21 in Maneka Gandhi v. Union of India, the
punishment/penalty awarded has to be reasonable; and if
it be unreasonable, Article 14 would be violated. That Article
14 gets attracted in a case of disproportionate punishment
was the view of this Court in Bhagat Ram v. State of H.P.
also. Now if Article 14 were to be violated, it cannot be
doubted that a High Court can take care of the same by
substituting, in appropriate cases, a punishment deemed
reasonable by it.”
21. In Civil Appeal No. 5848 of 2021 (Union of India & Ors. vs. Dalbir
Singh) the Supreme Court held (relevant paragraphs are
reproduced herein):-
“25. This Court in Ajit Kumar Nag v. General Manager
(PJ), Indian Oil Corpn. Ltd., Haldia & Ors., (2005) 7
SCC 764 held that the degree of proof which is
necessary to order a conviction is different from the
degree of proof necessary to record the commission of
delinquency. In criminal law, burden of proof is on the
prosecution and unless the prosecution is able to
prove the guilt of the accused “beyond reasonable
doubt”, he cannot be convicted by a court of law. In a
departmental enquiry, on the other hand, penalty can
be imposed on the delinquent officer on a finding
recorded on the basis of “preponderance of
probability”.
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It was held as under:-
“11. As far as acquittal of the appellant by a criminal court
is concerned, in our opinion, the said order does not
preclude the Corporation from taking an action if it is
otherwise permissible. In our judgment, the law is fairly
well settled. Acquittal by a criminal court would not debar
an employer from exercising power in accordance with the
Rules and Regulations in force. The two proceedings,
criminal and departmental, are entirely different. They
operate in different fields and have different objectives.
Whereas the object of criminal trial is to inflict appropriate
punishment on the offender, the purpose of enquiry
proceedings is to deal with the delinquent departmentally
and to impose penalty in accordance with the service rules.
In a criminal trial, incriminating statement made by the
accused in certain circumstances or before certain officers is
totally inadmissible in evidence. Such strict rules of
evidence and procedure would not apply to departmental
proceedings. The degree of proof which is necessary to
order a conviction is different from the degree of proof
necessary to record the commission of delinquency. The rule
relating to appreciation of evidence in the two proceedings is
also not similar. In criminal law, burden of proof is on the
prosecution and unless the prosecution is able to prove the
guilt of the accused “beyond reasonable doubt”, he cannot
be convicted by a court of law. In a departmental enquiry,
on the other hand, penalty can be imposed on the
delinquent officer on a finding recorded on the basis of
“preponderance of probability”. Acquittal of the appellant by
a Judicial Magistrate, therefore, does not ipso facto absolve
him from the liability under the disciplinary jurisdiction of
the Corporation. We are, therefore, unable to uphold the
contention of the appellant that since he was acquitted by a
criminal court, the impugned order dismissing him from
service deserves to be quashed and set aside.”
(Emphasis Supplied)
26. This Court in Noida Entrepreneurs Association v.
NOIDA & Ors. (2007) 10 SCC 385, held that the criminal
prosecution is launched for an offence for violation of a
duty, the offender owes to the society or for breach of which
law has provided that the offender shall make satisfaction
to the public, whereas, the departmental inquiry is to
maintain discipline in the service and efficiency of public
service. It was held as under:
“11. A bare perusal of the order which has been quoted in
its totality goes to show that the same is not based on any
172025:CHC-AS:1674
rational foundation. The conceptual difference between a
departmental inquiry and criminal proceedings has not been
kept in view. Even orders passed by the executive have to
be tested on the touchstone of reasonableness. [See Tata
Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat
Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130] .]
The conceptual difference between departmental
proceedings and criminal proceedings have been
highlighted by this Court in several cases. Reference may
be made to Kendriya Vidyalaya Sangathan v. T. Srinivas
[(2004) 7 SCC 442 : 2004 SCC (L&S) 1011], Hindustan
Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471
: 2005 SCC (Cri) 1605] and Uttaranchal RTC v. Mansaram
Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S) 1341].
“8. … The purpose of departmental inquiry and of
prosecution are two different and distinct aspects. The
criminal prosecution is launched for an offense for violation
of a duty, the offender owes to the society or for breach of
which law has provided that the offender shall make
satisfaction to the public. So crime is an act of commission
in violation of law or of omission of public duty. The
departmental inquiry is to maintain discipline in the service
and efficiency of public service. It would, therefore, be
expedient that the disciplinary proceedings are conducted
and completed as expeditiously as possible. It is not,
therefore, desirable to lay down any guidelines as inflexible
rules in which the departmental proceedings may or may
not be stayed pending trial in the criminal cases against the
delinquent officer. Each case requires to be considered in
the backdrop of its own facts and circumstances. There
would be no bar to proceed simultaneously with
departmental inquiry and trial of a criminal case unless the
charge in the criminal trial is of grave nature involving
complicated questions of fact and law. Offense generally
implies infringement of public duty, as distinguished from
mere private rights punishable under criminal law. When
the trial for a criminal offense is conducted it should be in
accordance with proof of the offense as per the evidence
defined under the provisions of the Indian Evidence Act,
1872 [in short „the Evidence Act‟]. The converse is the case
of departmental inquiry. The inquiry in a departmental
proceeding relates to conduct or breach of duty of the
delinquent officer to punish him for his misconduct defined
under the relevant statutory rules or law. That the strict
standard of proof or applicability of the Evidence Act stands
excluded is a settled legal position. … Under these
circumstances, what is required to be seen is whether the
departmental inquiry would seriously prejudice the
delinquent in his defense at the trial in a criminal case. It is
182025:CHC-AS:1674
always a question of fact to 27 be considered in each case
depending on its own facts and circumstances.”
27. This Court in Depot Manager, A.P. State Road
Transport Corporation v. Mohd. Yousuf Miya & Ors.,
(1997) 2 SCC 699, held that in the disciplinary
proceedings, the question is whether the respondent is
guilty of such conduct as would merit his removal from
service or a lesser punishment. It was held as under:
“7. …There is yet another reason. The approach and the
objective in the criminal proceedings and the disciplinary
proceedings is altogether distinct and different. In the
disciplinary proceedings, the question is whether the
respondent is guilty of such conduct as would merit his
removal from service or a lesser punishment, as the case
may be, whereas in the criminal proceedings the question is
whether the offences registered against him under the
Prevention of Corruption Act (and the Penal Code, 1860, if
any) are established and, if established, what sentence
should be imposed upon him. The standard of proof, the
mode of enquiry and the rules governing the enquiry and
trial in both the cases are entirely distinct and different.
Staying of disciplinary proceedings pending criminal
proceedings, to repeat, should not be a matter of course but
a considered decision. Even if stayed at one stage, the
decision may require reconsideration if the criminal case
gets unduly delayed.” (Emphasis Supplied)
28. Mr. Yadav, learned counsel for the writ petitioner has
submitted that during the pendency of the writ petition
before the High Court, 9 (1997) 2 SCC 699 the appellants
were given opportunity to produce the registers of the
entrustment of S.L.R. to the writ petitioner. But it was stated
that record was not available being an old record as the
incident was of 1993. The enquiry was initiated in 2013
after the acquittal of the writ petitioner from the criminal
trial. Therefore, in the absence of the best evidence of
registers, the oral evidence of use of official weapon stands
proven on the basis of oral testimony of the departmental
witnesses. 29. The burden of proof in the departmental
proceedings is not of beyond reasonable doubt as is the
principle in the criminal trial but probabilities of the
misconduct. The delinquent such as the writ petitioner could
examine himself to rebut the allegations of misconduct
including use of personal weapon. In fact, the reliance of the
writ petitioner is upon a communication dated 1.5.2014
made to the Commandant through the inquiry officer. He
has stated that he has not fired on higher officers and that
he was out of camp at the alleged time of incident.
Therefore, a false case has been made against him. His
further stand is that it was a terrorist attack and terrorists
19
2025:CHC-AS:1674
have fired on the Camp. None of the departmental
witnesses have been even suggested about any terrorist
attack or that the writ petitioner was out of camp. Constable
D.K. Mishra had immobilized the writ petitioner whereas all
other witnesses have seen the writ petitioner being
immobilized and being removed to quarter guard. PW-5 Brij
Kishore Singh deposed that 3-4 soldiers had taken the Self-
Loading Rifle (S.L.R.) of the writ petitioner in their
possession. Therefore, the allegations in the chargesheet
dated 25.2.2013 that the writ petitioner has fired from the
official weapon is a reliable finding returned by the
Departmental Authorities on the basis of evidence placed
before them. It is not a case of no evidence, which alone
would warrant interference by the High Court in exercise of
power of judicial review. It is not the case of the writ
petitioner that there was any infraction of any rule or
regulations or the violation of the principles of natural
justice. he best available evidence had been produced by
the appellants in the course of enquiry conducted after long
lapse of time.”
22. In the present case, the enquiry report shows:-
i. The petitioner/company could neither produce any witness
nor show any call records to substantiate their charge that
the respondent was in touch with a rival company.
ii. As to what the enquiry officer meant by “as per my direction”
is not clear and if believed, would go against the petitioner.
iii. The witnesses produced, only stated that they saw the private
respondent talk to some personnels of the rival company.
iv. It was also stated that the private respondent had left the
office on that day.
23. The petitioner in this case, could not prove that any damage or loss
to, or destruction of, property belonging to the employer was due to
the act of the respondent, which was riotous, disorderly, or involves
moral turpitude.
20
2025:CHC-AS:1674
24. In Sushil Kumar Singhal vs Regional Manager Punjab National
Bank, in Civil Appeal No. 6423 of 2010 (arising out of SLP (C)
No. 4216 of 2008), decided on 10 August, 2010, the Supreme
Court has described:-
“21. Moral Turpitude means [Per Black’s Law Dictionary
(8th Edn.,2004)] :-
“Conduct that is contrary to justice, honesty, or morality.
In the area of legal ethics, offenses involving moral
turpitude such as fraud or breach of trust. Also termed
moral depravity.
Moral turpitude means, in general, shameful
wickedness- so extreme a departure from ordinary
standards of honest, good morals, justice, or ethics as to
be shocking to the moral sense of the community. It has
also been defined as an act of baseness, vileness, or
depravity in the private and social duties which one
person owes to another, or to society in general,
contrary to the accepted and customary rule of right and
duty between people.”
22. In Pawan Kumar Vs. State of Haryana & Anr., AIR
1996 SC 3300, this Court has observed as under:-
“`Moral turpitude’ is an expression which is used in legal
as also societal parlance to describe conduct which is
inherently base, vile, depraved or having any connection
showing depravity.”
23. The aforesaid judgment in Pawan Kumar (supra)
has been considered by this Court again in Allahabad
Bank & Anr. Vs. Deepak Kumar Bhola, (1997) 4 SCC 1;
and placed reliance on Baleshwar Singh Vs. District
Magistrate and Collector, AIR 1959 All. 71, wherein it
has been held as under:-
“The expression `moral turpitude’ is not defined
anywhere. But it means anything done contrary to
justice, honesty, modesty or good morals. It implies
depravity and wickedness of character or disposition of
the person charged with the particular conduct. Every
false statement made by a person may not be moral
turpitude, but it would be so if it discloses vileness or
212025:CHC-AS:1674
depravity in the doing of any private and social duty
which a person owes to his fellow men or to the society
in general. If therefore the individual charged with a
certain conduct owes a duty, either to another individual
or to the society in general, to act in a specific manner or
not to so act and he still acts contrary to it and does so
knowingly, his conduct must be held to be due to
vileness and depravity. It will be contrary to accepted
customary rule and duty between man and man.”
24. In view of the above, it is evident that moral
turpitude means anything contrary to honesty,
modesty or good morals. It means vileness and
depravity. In fact, the conviction of a person in a
crime involving moral turpitude impeaches his
credibility as he has been found to have indulged
in shameful, wicked, and base activities.”
25. Thus looking for another job, even if with a rival company
(though, not proved in this case) with better perks and facilities
is a basic right and does not constitute moral turpitude as it is
not contrary to honesty, modesty or good morals.
26. The said/conduct of the enquiry/disciplinary authority is clearly an
abuse of power and totally against the principles of natural justice,
there being no independent, specific findings of the disciplinary
authority against the petitioner. No reasoning nor the principles of
natural justice was followed.
27. The findings of Disciplinary Authority is based on „no evidence‟ and
has been passed without considering the principles of natural
justice, which is a clear perverse determination of fact [State of
Rajasthan – vs – Heem Singh (Supra)].
28. Relying upon the judgment in Western Coal Fields Ltd. vs
Manohar Govinda Fulzele, (Supra), this Court sets aside the order
22
2025:CHC-AS:1674
and punishment of the disciplinary authority for the reasons stated
above and directs the petitioner to pay the total amount of gratuity
along with simple interest @ 8% p.a. with effect from 30th April,
2009 till payment within 60 days from the date of this order.
29. The order under challenge thus also requires no interference as the
appellate authority has not interfered either with the disciplinary
proceeding or the punishment. The appellate authority was clearly
within its power under the payment of gratuity to decide the case on
merit regarding the entitlement/forfeiture of gratuity.
30. The order of the appellate authority is well reasoned and within
jurisdiction to the extent of the provisions of the payment of
gratuity and is clearly in accordance with law.
31. WPA 4620 of 2025 is thus dismissed.
32. All connected application, if any, stands disposed of.
33. Interim order, if any, stands vacated.
34. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties, expeditiously after complying with all
necessary legal formalities.
(Shampa Dutt (Paul), J.)
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