Anu Sivaraman, J.

1. Heard the learned counsel for the petitioner in O.P.(LC) Nos. 25 of 2017 and 19 of 2019, the learned counsel for the petitioners in the writ petitions, the learned Assistant Solicitor General of India and the learned Government Pleader.

2. O.P. (LC) No. 25 of 2017 is filed challenging Exhibit P15 award passed in ID No. 5 of 2013 by the Central Government Industrial Tribunal cum Labour Court, Ernakulam. It is contended by the petitioner in OP(LC) No. 25 of 2017 that the company is registered under the Companies Act, 1956 with its registered office at Kota in the State of Rajasthan. It has a unit at Palakkad. It is stated that a settlement revising pay and benefits of the employees of the Palakkad unit from 1.1.1992 to 31.12.1996 was signed between the management and unions in June 1999. Pending negotiations, the management had paid recoverable advances to the employees against the pay revision benefits. It is stated that by the time this settlement was arrived at in June 1999, the pay revision for 1997 also became due. Settlement regarding 1997 pay revision was arrived at and signed only on 3.8.2009 and the pay revision was implemented prospectively only with effect from 23-2-2019. It is stated that in the meanwhile, the company was declared as a sick unit and scheme for rehabilitation was pending consideration before the BIFR. The unions filed W.P.(C). No. 461 of 2010 before this Court challenging the steps taken to recover the amounts paid as advance from the terminal benefits of retiring employees. This Court directed the Regional Labour Commissioner (Central) Cochin to conciliate the matter. When the conciliation failed, the dispute was referred to Central Government Industrial Tribunal cum Labour Court. The dispute referred was whether the action of the management of M/s. Instrumentation Limited, Palakkad in recovering the advance paid to the employees from their terminal benefits is justified or not, If not, what reliefs the employees are entitled to The Tribunal, after hearing the parties, rendered Exhibit P15 award, which is under challenge.

3. It is contended by the learned counsel for the petitioner that the 2nd respondent erred in not considering the specific contention that the amounts disbursed were refundable advances and that there were no arrears in respect of the 1997 Pay Revision against which such refundable advances could have been adjusted. It is stated that the company had been declared as a sick Industrial Unit and the BIFR order dated 25.2.2010 specified that benefits of the 1997 wage revision would be applicable only with effect from 23.3.2009 as had been stated by the Central Government. It is stated that Clause 13 of the settlement dated 3.8.2009 specifically refers to adjustable ad hoc payments/advances and recoverable advances. It is, therefore, contended that the amounts were liable to be recovered from the amounts due to the employees in view of the fact that there were no arrears from which adjustments could have been effected. It is further contended that in view of the settlement between the parties, the Tribunal could not have examined the issue as there was no industrial dispute as defined under Section 2(k) of the ID Act which could have been decided by the Tribunal. It is stated that in the facts of the case, the findings and the direction in the award negating the recovery of advances from terminal benefits of the employees was completely unsustainable in law.

4. O.P.(LC) No. 19 of 2019 is filed by the Instrumentation Limited, a Government of India undertaking, challenging Exhibit P3 order passed by the 2nd respondent in a claim petition filed under Section 33 C (2) of the Industrial Disputes Act, 1947 read with Rule 62(2) of Industrial Disputes (Central) Rules, 1957. The claim petition was filed challenging the recovery of advances granted by the Management to the employees of the company from the gratuity and other payments due to the employees. It is stated that Exhibit P2 objection had been preferred by the company stating that the claim could not have been raised under Section 33 C (2) of the ID Act and that the recovery was in respect of refundable advances granted in anticipation of a wage revision. It is stated that since arrears of wage revision could not be granted to the employees due to the financial condition of the company, the amounts disbursed as refundable advances were liable to be recovered from them. It is submitted that without considering the contentions of the company, Exhibit P3 order was passed stating that recovery made from the terminal benefits of the employees was completely illegal and that the respondents are liable to disburse the amounts illegally recovered. Reliance was placed on award in ID No. 5/2013.

5. The captioned writ petitions have been filed by the employees challenging the recovery made from their terminal benefits. W.P.(C). Nos. 34151 of 2016 and 2514 of 2017 was initially disposed of by judgment dated 7.4.2017 directing the terminal benefits to be released to them within four months from the date of receipt of a copy of the judgment. On a revision petition being filed, the judgment was reviewed and recalled. The writ petition was posted for re-hearing. Thereafter, an interim order was passed recording the submission of the management that no recovery was made from the Provident Fund amounts and that recovery was effected from gratuity payable to the employees. It was, therefore, directed that the amounts recovered/adjusted from the gratuity shall be deposited in a separate fixed deposit account with a nationalised bank and the question regarding admissibility of recovery/adjustment from the gratuity will be considered in the writ petitions. W.P.(C). Nos. 10267 of 2019 and W.P.(C). No. 3107 of 2019 is filed by the employees seeking the release of the amounts due. W.P.(C). No. 28652 of 2017 is filed by the General Secretary of an Employees Union seeking directions to the 1st respondent to pay arrears of pay revision of 1992 and 1997, as also for the implementation of the further pay revisions of 2007 and 2017. Interim orders have been rendered in W.P.(C). Nos. 3107 of 2019 and 10267 of 2019 stating that the interim orders in W.P.(C). No. 2514 of 2017 will govern the said cases as well.

6. The question which requires consideration by this Court is whether there is any material illegality in the award passed by the Central Government Industrial Tribunal cum Labour Court and whether the management is justified in effecting recovery from the gratuity payable to the employees, who had retired from service. The challenge against the award of the Tribunal is essentially on the ground that the factual aspects of the matter have not been properly considered by the Tribunal. It is not in dispute before me that pursuant to the conciliation conducted on the directions of this Court, the dispute had been referred to the Tribunal for an adjudication on the question whether the amounts allegedly paid as refundable advances could be withheld from the terminal benefits of the employees. It is not in dispute before me that the parties were put on notice and their contentions were considered with reference to the materials produced before the award was passed by the Tribunal. This Court, being only vested with the supervisory jurisdiction under Article 227 of the Constitution of India is not expected to re-visit the factual aspects of the matter only or attempt a re-appreciation of the material relied on by the Tribunal.

7. Having considered the contentions advanced on either side and having perused the award, I am of the opinion that the award is not vitiated by any perversity or substantial illegality so as to make it amenable to interference under judicial review. In the above view of the matter, I am of the opinion that challenge against the award is not sustainable.

8. The claim of the petitioners in the other petitions is for the payment of amounts withheld from gratuity due to them. It is not in dispute that the gratuity is payable to the employees of the management under the provisions of the Payment of Gratuity Act. It is trite law that the gratuity can be withheld or withdrawn only in the circumstances as provided in the Sub-section 6 of Section 4 of the Payment of Gratuity Act provides the circumstances under which gratuity can be withheld or forfeited by the employer. Section 4(6) reads as follows:-

"(6) Notwithstanding anything contained in sub-section (i),

(a) the gratuity of an employee, whose services have been terminated for any act, wilful 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."

9. In the admitted facts and circumstances of the instant case, there is no allegation, whatsoever, which can be relatable to the reasons referable to Section 4(6) for a lawful withholding or forfeiture of gratuity or any part thereof. In the above circumstances, I am of the opinion that the action of the respondents in withholding amounts from the gratuity due to the employees on the ground that such amounts represent refundable advances cannot be countenanced. The respondents are duty bound to release the amounts which have been withheld by them from the gratuity without any authority of law.

10. W.P.(C). No. 28652 of 2017 is with regard to the payment of wage revision arrears to the employees of the 1st respondent. A detailed counter affidavit has been placed on record on behalf of the 2nd respondent in the writ petition. It is pointed out that the 2nd respondent company has been declared as a sick industrial unit and that the matter was pending before the BIFR. It is stated that on the basis of the orders issued by the Central Government, the BIFR has approved a revival package which binds the company as well as the Government. It is stated that in view of the specific directions contained in the rehabilitation package with regard to the implementation of the pay revisions and the grant of arrears with prospective effect, the prayers raised in the writ petition are completely misconceived.

11. Having considered the contentions advanced on either side, I am of the opinion that the prayers sought for in W.P. (C). No. 28652/2017 cannot be granted in the facts and circumstances of the instant case. The grievances of the employees with regard to the arrears of wage revision are to be raised by them before the State Government. In the case of any take over by the State Government or in the unfortunate event of the closure of the company, the interests of the employees will also be addressed.

12. In the result, OP(LC) Nos. 25 of 2017 and 19 of 2019 are dismissed.

W.P.(C). Nos. 34151 of 2016, 2514 of 2017, 3107 of 2019 and 10267 of 2019 are liable to succeed and the said writ petitions are allowed. The amounts illegally withheld from the petitioners gratuity will be released to them without delay. In view of the fact that the amounts have been deposited in separate accounts by the employer, the amounts due shall be released to them within a period of four weeks from the date of receipt of a copy of this judgment.

W.P.(C). No. 28652/2017 is closed, leaving open the contentions of the petitioners to be considered in appropriate proceedings.

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