1. This petition under Article 226 of the Constitution of India is filed by the petitioner against the order dated 20.02.2018 passed by the respondent No.1 i.e. the appellate authority under the provisions of Payment of Gratuity Act, 1972 (for short “the Act”) in Appeal No.2 of 2017, whereby the appeal of the petitioner came to be rejected and the order of the controlling authority dated 15.02.2017 was confirmed.

2. The case of the petitioner is that the respondent No.3 was an employee of the petitioner and was facing both criminal case for corruption which is a misconduct of a moral turpitude and while the FIR was pending even departmental proceedings were initiated however, as the bank went into the liquidation, the liquidator was constrained to take necessary steps in accordance with law by which all the employees of the bank including respondent No.3 came to be retrenched. Therefore, in that capacity as the respondent No.3 was entitled to the payment of gratuity which was not paid, she approached the controlling authority which passed the order in favour of respondent No.3.

3. At this stage, it would be pertinent to refer to the previous round of litigation which had reached till the High Court in form of Special Civil Application No.13257 of 2014 by the petitioner which came to be disposed of by oral judgment dated 21.09.2016, wherein this Court was pleased to issue following directions:-

“11.2 Consequently, following order is passed:-

[a] The order dated 24.7.2014 passed by the appellate authority in gratuity Appeal No.26 of 2012 and the order dated 22.10.2012 passed by the controlling authority gratuity claim application No.77 of 2010 are set aside.

[b] The case i.e. gratuity claim application No.77 of 2010 is remanded to the controlling authority for fresh decision on merits in accordance with law.

[c] The controlling authority shall decide the gratuity claim application on merits without being deterred by the fact that the criminal proceedings against the claimants are pending. The controlling authority shall independently and in light of the material available on record, decide on its own as to whether the claimant's case would fall within purview of Section 4(6) or not, and accordingly, the authority will decide the case of the claimant.

[d] It is clarified that this Court has not expressed any opinion on the merits of the case of the claimant. It will be for the controlling authority to decide independently and in accordance with law as to whether the claimant's case is hit by provision under Section 4(6)(a) and/or (b) or not or he is entitled for the relief prayed for in the claim application.

[e] The other related issues also shall be decided independently and in accordance with law. It is emphasized – to remove any doubt and to eliminate only erroneous submission that this Court has not expressed any opinion on the merits and that therefore, the controlling authority shall proceed to decide the case without being influenced by the order of the appellate authority or by this decision or its own previous order dated 22.10.2012.

[f] The controlling authority shall endeavour to hear and decide the case as expeditiously as possible and preferably within three months from the date of receipt of certified copy of this order.”

4. Pursuant to this, once again the controlling authority appears to have taken into consideration various arguments and the submissions made on behalf of the petitioner and came to the conclusion of payment of gratuity to the respondent No.3. Apparently, the ground for issuing direction was that there was no event for which provisions of Section 4(6)(a) could be invoked.

5. Learned advocate appearing for the petitioner has tried to submit before this Court that in view of the fact that serious complaint of the nature of the corruption is still pending and that the trial is still going on and therefore, as it is a public money provision will have to be made as the same will have to be recovered ultimately from the respondent No.3.

6. It is brought on record that with regards to the trial, which is still pending and that the liquidator has initiated the proceedings in the form of a Lavad Suit before the Board of Nominees for recovering the loss/damage caused to the petitioner against the respondent No.3. It is also a matter of record that the order of retrenchment is still operational and no action has been taken for withdrawing such order and hence, at the relevant time, after the retrenchment there is no relation of master and servant between the petitioner and respondent No.3. However, the only ground invoked is about the pendency of a criminal trial is not sufficient to invoke the provisions of Sections 4(6)(a) and 4(6)(b) of the Act. The grounds which are narrated in Sections 4(6)(a) and 4(6)(b) of the Act are not fulfilled in the opinion of this Court as the trial is still pending and that the inquiry which was initiated has not been concluded resulting into holding the respondent No.3 as guilty of any misconduct. In absence of this fact, there cannot be any ground to invoke Sections 4(6)(a) and 4(6)(b) of the Act in the facts of this case.

7. In view of the aforesaid, no case is made out to interfere with the order of the controlling authority as well as the appellate authority, more particularly when the concurrent findings of facts have been arrived at by both the authorities. However, it is observed that it is open for the petitioner to proceed ahead with the Lavad Suit and recovery, if any, ordered by the Lavad Suit and the same will always be subject to the action that can be taken by the petitioner bank against respondent No.3.

8. With the aforesaid, the petition stands disposed of.