Suvasish Dasgupta vs Uco Bank And Others
2021 Latest Caselaw 1174 Cal/2

     in tHE HiGH court at calcutta
                     conStitutional writ JuriSDiction
                              oriGinal SiDE
Before:
THE HON'BLE JUSTICE ARINDAM MUKHERJEE


                             WPO 211 OF 2021

                            SUVASISH DASGUPTA
                                  VERSUS
                           UCO BANK AND OTHERS


For the Petitioner                :   Mr. Soumya Majumder,
                                      Mr. Mainak Ganguly,
                                      Mr. Sayak Chakraborty.
                                                               ...... Advocates

For the Respondent                : Mr. Soumen Das,

...... Advocate Heard on : 02.08.2021, 11.08.2021, 26.08.2021, 31.08.2021, 14.09.2021, 22.09.2021.

Date                              : 29th September, 2021


The Court:

1)    On 15th December, 2017 the petitioner while serving UCO Bank

(hereinafter referred to as the respondent-bank) as Assistant General

Manager, in scale-V was served with a suspension notice placing him

under suspension with immediate effect. The suspension notice was

issued by the General Manager, HRM & OL being the Competent

Authority under the UCO Bank Officer Employees' (Discipline & Appeal)

Regulations 1976 (hereinafter referred to as the said regulation). The WPO 211 of 2021

petitioner was thereafter on 9th November, 2018 served with an Articles

of Charge. The four charges are as follows:-

"1) Shri Suvasish Dasgupta (EMP no. 38990) had failed to take all possible steps to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer, which is violative of Regulations 3 (1) of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended.

2) Shri Suvasish Dasgupta (EMP no. 38990) had failed to discharge his duties with utmost devotion and diligence which is violative of Regulation 3 (1) of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended.

3) Shri Suvasish Dasgupta (EMP no. 38990) had failed to discharge his duties with utmost integrity and honesty which is violative of Regulation 3 (1) of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended.

4) Shri Suvasish Dasgupta (EMP no. 38990) while performing his official duties had acted otherwise than in his best judgment, which is violative of Regulation 3 (3) of UCO Bank Officer Employees' (Conduct) Regulations, 1976 as amended".

2) The petitioner replied to the show cause by a letter dated 22nd November,

2018. The said reply was found to be unsatisfactory and as such the

Departmental Proceedings (hereinafter referred to as 'DP') was proceeded

with against the petitioner. The Enquiry Officer (hereinafter referred to as

'EO') namely R.C. Nayak filed his Enquiry Report on 21st September,

2019. The petitioner was provided with such Enquiry Report on 27th

September, 2019. The petitioner also submitted his representation to the

Enquiry Report. The Disciplinary Authority (in short DA) passed the

final order on 26th December, 2019 by directing dismissal of the

petitioner from the services of the bank. The petitioner preferred a

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statutory appeal before the Appellate Authority which was dismissed by

an order dated 8th September, 2020. During the pendency of the DP, the

petitioner was arrested by the Detective Department, Kolkata Police on

the basis of an FIR lodged by Dilip Kumar Mridha, General Manager,

(Strategic Planning) on behalf of the respondent-bank. The petitioner

attained the age of superannuation on 31st January, 2021. On 20th April

2021 the instant writ petition has been filed. In the instant writ petition,

the petitioner has, inter alia, challenged the report of the Enquiry Officer,

the order of the Disciplinary Authority dated 26th December, 2019 and

the order of the Appellate Authority dated 8th September, 2020. The

petitioner also prayed for benefits from 15th December, 2017 being the

date of suspension till the notional date of superannuation that is 31st

January, 2021.

3) At the motion stage, the petitioner has sought for release of his gratuity

which is opposed by the respondent-bank. This issue therefor, has fallen

for consideration at the interim stage.

4) The petitioner says that under the provisions of Section 4 (1) of the

Payment of Gratuity Act, 1972 (hereinafter referred to as the said 'Act'),

the petitioner having rendered continuous service for more than five

years is entitled to gratuity. Gratuity according to the petitioner can be

forfeited only under the provisions of Section 4(6) of the said Act. In the

instant case, there is no allegation in any of the Articles of Charges that

the petitioner has caused damage or loss or destruction of property

belonging to the respondent-bank. There is also no allegation of moral

turpitude said to have been committed by the petitioner in course of his

WPO 211 of 2021

employment. The petitioner is also not charged of any riotous or

disorderly conduct or any other act of violence on his part. Unless these

allegations are figured as against the petitioner in the charge-sheet and

it is proved in the DP, the gratuity amount cannot either be forfeited or

withheld till the final disposal of the writ petition. The petitioner has

relied upon a judgment of the Hon'ble Division Bench of this Court dated

29th September, 2016 passed in MAT 1298 of 2012 (UCO Bank & Ors vs.

Nityananda Paul & Anr. reported in 2016 SCC Online Cal 5205) and

submitted that the Division Bench had specifically considered the

following questions apropos the same rules and the provisions of the said

Act:-

" 1. The questions which arise in the present appeal are (i) whether the employees of the UCO Bank are entitled to payment of gratuity under the Payment of Gratuity Act, 1972 or under the UCO Bank Officer Employees' (Conduct) Regulations, 1976; (ii) whether gratuity can be denied to an employee only because he has been held guilty of having committed a misconduct without quantifying the actual loss suffered by the employer before imposing any punishment on him; (iii) whether a separate enquiry can be held by the employer for quantifying the loss suffered by the employer after imposing the punishment of removal, dismissal etc. on the employee".

5) The petitioner further submits that after a detailed discussion, the

Hon'ble Division Bench concluded that in a case where an employee of

the respondent-bank has been held guilty of having committed a

misconduct without quantifying the actual loss suffered by the bank

WPO 211 of 2021

before imposing any punishment on him, the gratuity payable to such an

employee cannot be either forfeited or withheld.

6) According to the petitioner, his case is covered by the answer given by

the Hon'ble Division Bench in the said judgment. In the Articles of

Charge, there is no mention of the respondent-bank having suffered any

loss. The actual loss suffered by the respondent-bank is also not

quantified in the Articles of Charge. The gratuity payable to the petitioner

therefor, cannot be forfeited or kept withheld till the final disposal of the

writ petition.

7) The petitioner has also relied upon a judgement of the Hon'ble Supreme

Court of India passed on 14th August, 2018 in the case of Union Bank of

India & Ors vs. C.G. Ajay Babu & Anr. reported in (2018) 9 SCC 529

to contend that it is not the conduct of a person involving moral

turpitude that is required for forfeiture of gratuity but the conduct or the

act should constitute an offence involving moral turpitude. The

petitioner further says assuming without admitting that even if he is

guilty of misconduct then also his service cannot be held to have been

terminated for any act which constitutes an offence involving moral

turpitude as none of the charges said to have been proved in the DP are

acts that constitute an offence involving moral turpitude for which the

service of the petitioner has been terminated. The petitioner, therefor,

prays for release of the amount on account of gratuity even pending final

disposal of the writ petition.

8) On behalf of the respondents, it has been submitted that the petitioner

has been found guilty of misconduct which constitute acts amounting to

WPO 211 of 2021

moral turpitude. That apart and in any event, the petitioner having

caused damage or loss to the property belonging to the respondent-bank

has disentitled him of his gratuity. The respondent-bank has referred to

the Statement of Allegations which accompanied the Articles of Charge

and submits the same which clearly specifies that the respondent-bank

has suffered loss and damages for the act of the petitioner. Then

referring to the order of the Disciplinary Authority the respondent-bank

submits that the loss and damage caused to the petitioner have been

quantified in the said order after having been proved. The respondent

has also relied upon the judgement reported in 2020 SCC Online SC

470 (Mahanadi Coalfields Limited vs. Rabindranath Chaobey) to

contend that till the writ petition is finally disposed of the order of the

Disciplinary Authority, the order of the Appellate Authority cannot be

said to have achieved finality. The disciplinary proceeding to a limited

extent therefor, remains pending. During the pendency of the writ

petition, the gratuity cannot be released to the petitioner as the

respondent-bank continues to remain empowered to forfeit the gratuity

in terms of the provisions of Section 4(6) of the said Act read with Service

Rules applicable to the petitioner.

9) After considering the rival contentions, the judgments cited at the Bar

and the materials on record, I find that in the Statement of Allegations

the respondent-bank has alleged to have suffered loss and damages due

to the acts and omissions on the part of the petitioner. However, in none

of the four charges levelled against the petitioner, such case of loss and

damages have been made out. The Statement of Allegations was served

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in accordance with the provisions of Regulation 6(3) of the Conduct

Regulation inviting reply from the petitioner. The petitioner was, therefor,

aware about such allegations of loss and damage. The Enquiry Officer

has in his report commented about the loss and has held the same to be

proved as against the petitioner. The Disciplinary Authority on the basis

of the Enquiry Report has also held that the petitioner has

misappropriated the bank's fund to the tune of Rs.1.45 Crores approx.

and thereby has exposed the bank of huge risk of financial and

reputation loss. An FIR has been lodged by the bank and in connection

thereto the petitioner was also arrested. The Division Bench judgement

in Nityananda Paul (supra) has considered denial of gratuity when an

employee of the respondent-bank has been held guilty of having

committed a misconduct without quantifying the actual loss suffered by

the bank. In the instant case, though the articles of charges do not

contain any allegation as to loss said to have been suffered by the

respondent-bank but the Statement of Allegations do contain such

statement. The EO has also returned his findings on the basis of the

allegations contained in the Statement of Allegations. The petitioner was

afforded an opportunity to deal with such report. The Disciplinary

Authority has thereafter quantified the loss and has imposed major

penalty against the petitioner by terminating his service. It cannot,

therefor, be said at this stage that there was no allegation as against the

petitioner in any of the documents or at any stage regarding the

respondent-bank having suffered loss and damages due to the acts of the

petitioner. The aspect whether the Enquiry Officer could have gone into

WPO 211 of 2021

the issue of loss and damages when the same was not specific in the

Articles of Charges or could come to a finding that the acts of the

petitioner has caused loss when there is no specific charge in that regard

in the Articles of Charges only on the basis of the contents in the

Statement of Allegations and the Disciplinary Authority somewhat

quantifying the loss on the basis of the Enquiry Report requires detailed

consideration. This can be only done at the final hearing of the writ

petition after affording the respondent an opportunity to disclose their

stand on affidavits. The judgement in Nityananda Paul (supra) takes

into account a case where there is no quantification of loss and damages

and had allowed release of the amount on account of gratuity even after

the disposal of the writ petition. The judgment in Nityananda Paul

(supra) was considered by another Division Bench of this Court in

United Bank of India vs. Rana Mazumder & Ors. reported in (2017)

SCC Online Cal 16592, although not cited. The Division Bench in Rana

Mazumder (supra) declined to release the gratuity mainly for the reason

that the issue was pending before the larger bench in the Hon'ble

Supreme Court, Mahanadi Coalfields (supra) is the larger bench wherein

the Hon'ble Supreme Court while considering CDA rules, also negated

the release of the gratuity where an employee is superannuated during

the pendency of the disciplinary proceedings. Regulation 46 of the UCO

Bank (Officers') Service Regulation, 1979 contains a similar provision for

withholding the gratuity in case of punishment in form of termination of

service similar in line with the CDA Rules before the Hon'ble Supreme

Court in Mahanadi Coalfields (supra). As to whether the writ petition as

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in the instant case can be said to be continuation of the disciplinary

proceedings is also an issue which cannot be decided without touching

the merits of the main issues involved in the writ petition. In the instant

case good, bad, indifferent there is a tentative quantification of the loss

in the order of the Disciplinary Authority. The validity of such portion of

the order cannot be gone into at this stage. After considering the

judgements cited at the bar, I find that the concept of withholding the

gratuity is to recover any pecuniary loss said to have been suffered by

the employer (here the respondent-bank) from the amount of gratuity

payable to the delinquent employee. The employee if exonerated will be

entitled to the principal sum along with interest as provided under

Section 7 of the said Act. On the contrary as in the instant case if the

order of the Disciplinary Authority and the Appellate Authority is

sustained there is likely to arise an issue of recovery of loss. The

respondent-bank in that event if the gratuity amount is released will not

be able to recover its loss, if any from the petitioner at least to the tune of

his gratuity amount. The balance of convenience and inconvenience is,

therefor, in favour of the respondent-bank and against passing an order

for release of gratuity at this stage. Allowing release of gratuity at this

stage will also require a final adjudication as to the issue that the

Enquiry Officer could not have held that the acts of the petitioner has

caused loss and damage to the respondent-bank in absence of specific

charge in the Articles of Charge and that the Disciplinary Authority could

not have quantified the loss. The interim order prayed for release of

gratuity during the pendency of the writ petition is, therfor, refused.

WPO 211 of 2021

10) The writ petition shall be heard on affidavit. Affidavit-in-opposition by 9th

November, 2021. Affidavit-in-reply if any thereto by 26th November,

2021.

11) Parties will be at liberty to mention the matter for inclusion under the

heading 'Hearing' after completion of affidavits or on expiry of time

provided in this order for filing of affidavits, if no affidavits are filed.

Urgent photostat certified copy of this order, if applied for, be supplied to

the parties on priority basis after compliance with all necessary

formalities.

(ARINDAM MUKHERJEE, J.)