Ambalal Shankarlal Nayi vs Gujarat State Co-Operative ...
2021 Latest Caselaw 10384 Guj

     C/SCA/19126/2017                                JUDGMENT DATED: 03/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19126 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                    AMBALAL SHANKARLAL NAYI
                             Versus
        GUJARAT STATE CO-OPERATIVE AGRICULTURE AN RURAL
                  DEVELOPMENT BANK & 3 other(s)
==========================================================
Appearance:
MR NIRAV SANGHVI, MR MIHIR VAKHARIYA(8336) for the Petitioner(s) No.
1
MR.KIRIT R CHAUDHARI(3745) for the Respondent(s) No. 1,2,3,4
==========================================================

     CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 03/08/2021

                              ORAL JUDGMENT

1. Heard, learned Advocate, Mr. Sanghvi, appearing with learned Advocate, Mr. Mihir Vakhariya, for the petitioner and learned Advocate, Mr. Kirit R. Chaudhary, for the Respondents through video conference.

2. Rule. Learned Advocate, Mr. Chaudhary, waives service of rule for the Respondents.

C/SCA/19126/2017 JUDGMENT DATED: 03/08/2021

3. Since, the controversy involved in this petition, runs in a narrow compass, with the consent of the learned Advocates for the respective party, this matter is taken-up for final hearing, today.

3.1 By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

"7. ...

              A.           That the Hon'ble Court may be pleased to
              admit        and    allow      the      present        Special          Civil
              Application.



              B.           That the Hon'ble Court may be pleased to

allow the present petition by issuing appropriate writ, order or direction to the Respondent Bank for realizing the amount of leave encashment along with appropriate rate of interest.

C. This Hon'ble Court may be pleased to allow the present SCA by issuing appropriate writ order or direction for quashing and setting aside the order passed by respondent bank on dated 7.02.2014 in the interest of justice.

D. Pending admission, hearing and till final disposal of SCA, That the Hon'ble Court may be pleased to direct respondent bank to forthwith consider the representation made by the

C/SCA/19126/2017 JUDGMENT DATED: 03/08/2021

petitioner in the interest of justice.

E. ..."

4. The brief facts of the case are that the petitioner was employed by Respondent No.1-Bank as a Junior Clerk in the year 1975 and subsequently, he was promoted to different posts and lastly he was holding the post of Assistant Supervisor (Accounts), i.e. when he retired on 31.12.2012.

5. According to the petitioner, he is entitled to get an amount of Rs.3,52,462/- towards Leave Encashment from the Respondent-Bank. However, the Respondent-Bank has withheld the amount of Rs.2,50,000/- on the ground that one Ramjibhai Bhemabhai Karadi, residing at Mankroda, Taluka : Bhiloda, to whom the petitioner had issued 'No Due Certificate', is not repaying the loan obtained of Rs.2,50,000/- from the Respondent-Bank and therefore, the petitioner was held responsible for the same. The petitioner was therefore paid Rs.52,462/- on 07.02.2014.

5.1 It is also the case of the petitioner that the said Ramjibhai also filed a criminal complaint before the Court of the learned Magistrate, Bhiloda, against one Mr. B.N. Upadhyay, Branch Manager, Bhiloda, and the said proceedings are over.

6. Learned Advocate, Mr. Sanghvi, appearing for the petitioner submitted that Respondent -Bank neither issued any show-cause notice nor any departmental proceedings were initiated against him and thus, without giving an opportunity of hearing to the petitioner, the amount of Rs.2,50,000/-, which is liable to be paid to the petitioner towards Leave Encashment, is withheld by the Respondent-Bank.

       C/SCA/19126/2017                                  JUDGMENT DATED: 03/08/2021



6.1       It was, further, submitted that the Petitioner made an oral

representation to Respondent-Bank and the petitioner was informed that due to non-repayment of loan by said Ramjibhai, on the ground of No Due Certificate issued by the Bank, the Respondent-Bank has suffered a loss amounting to Rs.2,50,000/-, which is recovered from the retiral dues payable to the petitioner.

6.2 It was submitted that the petitioner also made written representations dated 22.07.2016, 29.06.2017 and 10.08.2017 stating that the petitioner is not responsible for the outstanding amount of loan payable by said Ramjibhai and hence, in absence of any departmental inquiry, the Respondent-Bank could not have recovered the amount of Rs.2,50,000/-, which is to be recovered by the Respondent-Bank from said Ramjibhai.

6.3 Learned Advocate, Mr. Sanghvi, further submitted that the private complaint filed by said Ramjibhai was dismissed by the learned Magistrate, Bhiloda, on 02.02.2013 and the Revision filed against the same before the Court of the learned Additional Sessions Court, Modasa, also came to be rejected on 18.01.2016, and therefore, the Respondent-Bank is at liberty to recover the amount of loan from said Ramjibhai by resorting to the provisions of law.

6.4 It was also pointed out that, though, the petitioner retired in the year 2012, the Respondent-Bank has continued to withheld the amount of Rs.2,50,000/- till date, which otherwise, is payable to the petitioner towards the leave encashment.

7. On the other hand, learned Advocate, Mr. Chaudhary, appearing for the Respondents submitted that the petitioner, on his own, admitted before the bank officials that he had issued 'No Due Certificate' to said Ramjibhai, which enabled him to avail the loan of Rs.2,50,000/-, and therefore, such

C/SCA/19126/2017 JUDGMENT DATED: 03/08/2021

amount can be adjusted and recovered from the dues to be paid to the petitioner. It was, therefore, submitted that it is now not open to the petitioner to state that the Respondent-Bank could not have withheld the amount of Rs.2,50,000/-, payable to the petitioner towards the leave encashment.

7.1 Learned Advocate, Mr. Chaudhary, however, candidly admitted that, as per the averments made in the affidavit-in-reply filed for and on behalf of the Respondents, no departmental inquiry was conducted against the petitioner in view of the admission made by the petitioner, as the Respondent-Bank did not want to ruin the long service rendered by the petitioner. It was, therefore, submitted that, since, the petitioner was willing to repay the amount of loan taken by said Ramjibhai, neither any action taken nor any departmental inquiry was initiated against the petitioner and as per the say of the petitioner, the Respondent-Bank has withheld the amount of Rs.2,50,000/- from the amount payable to the petitioner towards the leave encashment. It was, therefore, submitted that in view of the admission made by the petitioner with regard to the issuance of 'No Due Certificate' to said Ramjibhai before the officials of the Respondent-Bank and in view of the permission granted by the petitioner to withhold the amount of Rs.2,50,000/-, the petitioner is estopped from making the submission that neither any show-cause notice was issued nor any department inquiry was conducted against him.

8. Having heard the learned Advocates for the respective parties and having perused the material on record, it is not in dispute that no departmental inquiry was conducted by the Respondent-Bank against the petitioner prior to withholding the amount of Rs.2,50,000/-, from the outstanding dues of the petitioner towards Leave Encashment. Merely, because the petitioner has filed a letter before the Respondent-Bank, permitting the Respondent-Bank to recover the amount advanced to said Ramjibhai from the outstanding dues of the petitioner of Rs.3,52,462/-, the Respondents cannot withheld the amount of Rs.2,50,000/- payable to the petitioner towards Leave Encashment.

       C/SCA/19126/2017                                 JUDGMENT DATED: 03/08/2021



8.1       The Respondent-Bank ought to have conducted departmental inquiry

to hold the petitioner guilty for the charges, which may be leveled against the petitioner and merely, on the basis of the complaint filed by a loanee before the Court of the learned Magistrate, Bhiloda, the Respondent-Bank is not justified to recover the amount from the retiral dues of the petitioner.

9. In view of the above facts, this petition succeeds and is allowed. The Respondent-Bank is directed to pay the amount of Rs.2,50,000/-, which is withheld by it, within the period of EIGHT WEEKS from the date of receipt of a copy of this order, failing which the said amount shall carry the interest at the rate of nine percent, from the date on which the petitioner became eligible to receive the same, i.e. from 07.02.2014.

Rule is made absolute, accordingly. No order as to costs.

(BHARGAV D. KARIA, J) UMESH/-