Gauhati High Court
Arun Kanti Baruah vs The Punjab National Bank And 3 Ors on 29 September, 2021
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GAHC010115252021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/168/2021
ARUN KANTI BARUAH
S/O- LATE R.K. BARUAH, R/O- H/NO. 2, BYE LANE NO. 4 (SOUTH), LACHIT
NAGAR, GUWAHATI-781007, KAMRUP(M), ASSAM.
VERSUS
THE PUNJAB NATIONAL BANK AND 3 ORS.
REP. BY THE REGIONAL MANAGER, HAVING ITS REGIONAL OFFICE AT
NER, G.S. ROAD, BHANGAGARH, GUWAHATI- 781005.
2:THE CIRCLE OFFICE
NORTH EAST CIRCLE
REP. BY THE CIRCLE HEAD
NILGIRI MANSION
G.S. ROAD
BHANGAGARH
GUWAHATI- 781005.
3:THE REGIONAL MANAGER
REGIONAL OFFICE
PUNJAB NATIONAL BANK
NER
G.S. ROAD
BHANGAGARH
GUWAHATI- 781005.
4:THE BRANCH MANAGER
MAHABIR MARKET BRANCH
PUNJAB NATIONAL BANK
CHARU MARKET
S.R.C.B. ROAD
FANCY BAZAR
GUWAHATI- 781001
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Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : SC, PNB
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 29-09-2021
(N. Kotiswar Singh, J.)
Heard Mr. D. Das, learned Senior counsel, assisted by Mr. P. Choduhury, for the
appellant. Also heard Mr. A. Ganguly, learned Standing Counsel, Punjab National Bank.
2. The present appeal has been preferred against the judgment and order dated
19.03.2021 passed in WP(C) No.4825/2016 whereby the learned Single Judge has dismissed
the petition of the petitioner on the ground of laches and/or delay.
3. Considering the nature of the case and after hearing learned counsel for the parties, we
are of the view that the present appeal can be disposed of at this stage on the basis of the
materials available on record.
4. Before we deal with the merit of the appeal, it may be apposite to refer, in brief, certain
relevant facts.
5. The appellant was earlier appointed as a Clerk-cum-Godown Keeper in the New Bank of
India, Mahabir Market Branch, Fancy Bazar on 22.09.1978. Thereafter, his service was
confirmed on 09.05.1979. Subsequently, the New Bank of India got merged with Punjab
National Bank on 04.09.1993. Accordingly, the appellant was offered to join the newly
merged Punjab National Bank. However, the appellant declined to join the Punjab National
Bank resulting in passing of the order of Voluntary Retirement from Service by the Punjab
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National Bank vide order dated 13.06.1994. Thus, it is clear that the appellant was voluntarily
retired from service by order dated 13.06.1994 to which the appellant did not raise any
objection. After the appellant was given voluntary retirement, an FIR was lodged in the year
1995 in connection with certain misappropriation of fund to the tune of Rs.9,71,693.93/-in
which the appellant was also implicated. On completion of investigation, the appellant was
charge-sheeted by the Court of Special Judge (CBI), Assam in Special Case No.28(C)/1997
under Sections 420/468/471/477-A of the IPC read with Section 13(1)(d) of the PC Act, 1988.
The appellant was convicted by the learned Special Judge, CBI vide order dated 27.10.2003.
6. Being aggrieved by the said conviction, the appellant preferred an appeal before the
Gauhati High Court, as the appellate Court being Crl. Appeal No.353/2003, which was allowed
by the Appellate Court vide judgment and order dated 27.10.2003 by setting aside the
conviction of the appellant by giving benefit of doubt. Consequently, the appellant, though by
way of benefit of doubt, stood acquitted from all the charges.
7. The prosecuting agency (CBI) being aggrieved by the acquittal of the appellant,
preferred an SLP before the Hon'ble Supreme Court vide CRLMP No.3931/2015, which was,
however, dismissed by the Hon'ble Supreme Court vide order dated 20.03.2015. Thus, there
was no criminal liability as far as the appellant is concerned.
8. Subsequently, in the meantime, the Bank also instituted a Money Suit being Money Suit
No.147/1998 for recovery of an amount of Rs.15,68,615/- before the Civil Judge (Senior
Division) No.2, Guwahati. However, the said Suit was also dismissed by order dated
23.08.2004 on the ground of non-production of documents. No appeal was preferred against
the said dismissal of the Suit. As a consequence, all the criminal as well as civil proceedings
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initiated against the appellant did not result into any criminal and civil liability against the
appellant.
9. The appellant, thereafter, submitted an application to the Punjab National Bank
authorities on 21.03.2016 claiming, amongst others, for revocation of the termination order,
medical benefits, payment of full wages, provident fund, gratuity, retirement benefits, etc.,
which was, however, not acceded to by the Bank authorities.
10. In the meantime, the appellant also got information through an application filed under
the Right to Information Act, 2005 that the appellant is, otherwise, entitled to Rs.51,519/-
towards provident fund, which was adjusted by the Bank authorities towards recovery against
the alleged misappropriated amount of Rs..9,71,693.93/-. Similarly, in respect of gratuity,
though the appellant was entitled to Rs.42,023.00/-, the said amount was also adjusted by
the Bank authorities against the aforesaid misappropriated amount of Rs.9,71,693.93/-.
11. The appellant, at this stage, is not seeking any other relief except release of the
provident fund of Rs.51,519/- and gratuity of Rs.42,023.00/- to which the appellant is
entitled.
12. As the Bank authorities did not release the benefits as claimed by the appellant, the
appellant approached this Court by filing a writ petition, WP(C) No.4825/2016, which was,
however, dismissed by the learned Single Judge on the ground of delay. The learned Single
Judge, while dismissing the writ petition, observed as under:-
"13. The Court is conscious of the well settled principles that no period of limitation
is prescribed for seeking relief through a writ Court. In this regard, although there cannot be a
straight jacket formula for a writ Court to entertain a claim beyond the period of limitation
prescribed for filing suits, and each case has to be considered on its own merit, but it is a rule
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of prudence and self restraint that would be applicable on case to case basis. In the present
case in hand, it is the admitted case of the petitioner that the respondent no.3 had served him
a letter dated 23.03.1994 to report for duty within 30 days along with explanation for not
joining duty w.e.f. 07.09.1993, failing which he would be deemed to have voluntarily retired
from service after 30 days. As indicated herein before, there is no document to show that the
petitioner had reported before the respondent no. 3 or before any other competent authority
to join service with respondent no.1. The pleaded case of the petitioner is that by reply dated
22.04.1994 and 26.04.1994, the petitioner had merely expressed his intention to join. However,
vide letter dated 13.06.1994, the petitioner was informed that he was voluntary retired from
service with effect from 25.05.1994. Thus, any dues that might have been due from the
respondents, would have crystallized on 25.05.1994 and 13.06.1994, as such, this writ petition
filed on 11.08.2016 is found to be hopelessly barred by limitation. It may be mentioned that the
writ Court, bring the Court of equity, will definitely refuse to grant relief, even if the petition is
entitled to the same, on the ground of delay, as delay defeats equity."
13. The learned Senior counsel for the appellant submits that the dismissal of the writ
petition on the aforesaid ground of delay is perhaps not appropriate in the present case
inasmuch as though the appellant was voluntarily retired from service in the year 1994, he
could not have got any benefit including provident fund and gratuity for the reason that
certain investigation was going on after the filing of the FIR in the year 1994 resulting in a
criminal trial, which finally culminated in his acquittal in the year 2015 as mentioned above.
Similarly, there was a Money Suit instituted against the appellant for recovery of alleged
misappropriated money, which was also closed only in 2004.
14. Learned Senior counsel has also submitted that in terms of Rule 46(2) of the Bank
Employees Pension Regulation, 1995, the gratuity shall not be paid to such an employee until
the conclusion of the proceedings against him.
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Accordingly, learned Senior counsel submits that the delay in approaching this Court was
not because of any latches on the part of the appellant, but because of the civil as well as
criminal proceedings initiated against him which prevented him from making any claim at the
relevant time. As such, it has been submitted that great injustice will be caused to the
appellant if the appellant is denied the aforesaid entitlement of gratuity and provident fund,
which have been unjustly denied by the Bank authorities by adjusting the same against the
alleged misappropriated amount, of which the appellant has already been cleared of any
liability.
15. Learned Standing counsel for the Bank submits that the Bank authority could not
release the aforesaid amount as the criminal proceeding was pending against the appellant.
However, since the criminal proceeding had been concluded in favour of the appellant,
perhaps the Bank authorities would, under the law, be liable to release the same.
16. Having heard learned counsel for the parties, we are of the view that the appellant
could not approach this Court earlier for the reason that he could not have made the claim for
release of provident fund as well as gratuity, as the criminal proceeding was initiated against
the appellant in 1995 which culminated in acquittal by the appellate Court only in 2003 which
stood confirmed only in the year 2015 on rejection of the SLP by the Hon'ble Supreme Court
and till pendency of such criminal case/ appeal, the appellant could not have any right to
claim for release of the gratuity as well as the provident fund.
17. Under the circumstances, we find no delay or fault on the part of the appellant to
approach this Court by filing the writ petition. The only option now left before this Court is to
remand the matter before the learned Single Judge for re-hearing the matter or dispose of
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the matter by ourselves.
18. We are of the view that the appellant is entitled to provident fund and gratuity as
admitted by the Bank authorities in terms of the reply received by the appellant after making
the application to the Bank authorities under the Right to Information Act, 2005. These were
adjusted by the Bank authorities against the alleged misappropriated amount, which is not
permissible in view of the fact that the appellant cannot be fastened with any criminal liability
as regards the aforesaid misappropriated amount, as he was cleared of any criminal or civil
liabilities as both the criminal proceeding and civil proceedings initiated against him did not
result in fastening any liability to him.
In view of the above, we are of the opinion that it would merely delay the claim if the
matter is referred to the learned Single Judge again.
19. Accordingly, we allow this appeal by interfering with the order of the learned Single
Judge by setting aside the order dated 19.03.2021 passed in WP(C) No.4825/2016 and direct
the Bank authorities to release the aforesaid amount of Rs. Rs.51,519/- towards provident
fund and Rs.42,023.00/- towards gratuity within a period of 30 days from today.
20. At this stage, learned Senior counsel for the appellant has submitted that since the
delay in releasing the aforesaid amounts of provident fund and gratuity has occurred due to
the fault on the part of the Bank, the appellant may be awarded interest on the aforesaid
amounts due.
Considering the fact that the aforesaid amounts were adjusted by the Bank authorities
as certain criminal proceeding was pending against the appellant, the Bank authorities also
cannot be faulted for non-release of the aforesaid amounts. However, once the criminal and
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civil proceedings were closed, the Bank authorities ought to have released the provident fund
and gratuity to the appellant. They could not have adjusted the said amounts against the
alleged misappropriated amount without any authority.
21. Accordingly, we allow the prayer of grant of interest @ 6% per annum on the aforesaid
amounts with effect from the date of the claim of the appellant on 21.03.2016, that is, when
the appellant submitted representation for release of the aforesaid amounts after the
proceedings were closed.
22. With the above observation and direction, the present appeal is disposed of.
JUDGE JUDGE
Comparing Assistant
