Pranab Kumar Choudhury vs Jharkhand Gramin Bank Through Its ...
2022 Latest Caselaw 1946 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P.(S) No. 1549 of 2019

            Pranab Kumar Choudhury, aged about 56 years son of Late Jitendra
            Nath Choudhury, resident of 9 Radha Govind Street Tharpakhna
            Ranchi P.O. G.P.O. Ranchi, P.S. Lower Bazar, Dist. Ranchi,
            Jharkhand-834001                      ...     ...      Petitioner
                                     Versus
            1. Jharkhand Gramin Bank through its Chairman, having its office at,
               Rajendra Place 2nd Floor, 5 Main Road Ranchi, P.O. & P.S. Chutia
               District Ranchi, Jharkhand-834001
            2. The Regional Manager, Jharkhand Gramin Bank Ranchi Region,
               having its office at, Rajendra Place, 3rd Floor, 5 Main Road
               Ranchi, P.O. and P.S. Chutia District Ranchi, Jharkhand-834001
            3. The Branch Manager Jharkhand Gramin Bank, Chakla Branch,
               having its office at and P.O. Chakla, P.S. Ormanjhi District
               Ranchi, Jharkhand                  ...       ...        Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Sahdeo Choudhary, Advocate For the Respondents : Mr. A. Allam, Senior Advocate : Mr. A.K. Sahay, Advocate

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10/12.05.2022 Heard Mr. Sahdeo Choudhary, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. A. Allam, learned senior counsel appearing on behalf of the respondents along with Mr. A.K. Sahay, Advocate.

3. This writ petition has been filed for the following reliefs:

"For issuance of nature of mandamus commanding upon the respondent authorities and further be pleased to direct the respondent authorities to (i) refund of illegal recovery of Rs. 6.00 lacs from gratuity amount, (ii) make payment of admissible arrear amount of gratuity of Rs. 20,676,.92 on account of key allowances @ 1280/- per month, but the same could not be taken into account while calculating the gratuity amount, (iii) make payment of admissible leave encashment on account of privilege leave accrued to him and (iv) make payment of statutory interest on amount of gratuity as well as other terminal benefits for delayed payment.

Further prayer has been made to set aside/quash the office Memo No. SD/85/16-17 dated 19/09/16 issued by the respondent No. 3 (Annexure-4) and Office Memo No. JGB/RO/HR/RK/2017-18/887 dated 23.08.2017 issued by the respondent No. 2 (Annexure-9) whereby and where under the respondent authorities have informed the petitioner for recovery of Rs. 6.00 lacs from gratuity amount."

Arguments of the petitioner.

4. Learned counsel for the petitioner has submitted that the order of punishment in the departmental proceeding was passed against the petitioner vide order dated 06.12.2012 as contained in Annexure-1 to the writ petition wherein a major penalty of "Removal from Bank's Service which shall not be disqualification for future employment" under Regulation No. 39.2 (b) of Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 has been passed.

5. He submits that the arising out of the disciplinary proceeding, the order of penalty as well as appellate order is under challenge before this court in W.P. (S) No. 197 of 2014 which is still pending before this court.

6. The learned counsel further submits that the cause of action for filing the present writ petition arose when the respondents issued a communication dated 19/09/16 along with statutory Form-L i.e. notice for payment of gratuity dated 08.08.2016 under clause-1 of sub Rule 8 of Payment of Gratuity Rules, 1972 wherein the amount payable on account of gratuity has been shown as Rs. 7,02,742.22 in form L and vide covering letter dated 19/09/16 it has been mentioned that an amount of Rs. 6 lacs is to be deducted from gratuity and the remaining amount was deposited in the account of the petitioner after deducting Rs. 6 lacs. He submits that even the last pay drawn was not properly projected in the calculation of gratuity and thus there are serious disputes in connection with the entitlement and computation of gratuity.

7. The learned counsel submits that against the deduction of the amount of Rs.6 lakhs and also anomaly in the entitlement and computation of gratuity, the petitioner had filed two representations both dated 30.05.2017 as contained in Annexure-5 and 6 of the writ petition and had stated that allowance payable to the petitioner being the head cashier at the relevant point of time was not included in the calculation of last pay drawn. The petitioner also raised objection with regard to recovery of Rs. 6 lacs from his terminal gratuity amount as the penalty order in the departmental proceedings did not direct recovery of any such amount. It was also contended in his representation dated 30.05.2017 that deduction of Rs. 6 lacs on

account of his punishment in the departmental proceedings will amount to double jeopardy. Certain other objections have also been raised in connection with deduction of the amount of Rs. 6 lacs from the gratuity payable to the petitioner.

8. It further appears from the writ record that the representation in connection with deduction of gratuity of Rs.6 lakhs has been disposed of vide order dated 23.08.2017 (Annexure-9) mentioning about the major penalty order dated 06.12.2012 (Annexure-1).

9. Thereafter the petitioner filed appeal before the Chairman, Jharkhand Gramin Bank against deduction of the gratuity amount, but the same remained pending.

10. It further appears from the records of this case that the petitioner had also raised a grievance in connection with encashment of privilege leave on removal from service vide representation dated 14.01.2019 (Annexure-11/1) before the Regional Manager, Jharkhand Gramin Bank but the grievance in connection with the same has not been redressed.

11. Ultimately, when the grievance of the petitioner was not redressed, the petitioner served a legal notice to the Chairman of the respondent Bank vide notice dated 05.02.2019 wherein all the aforesaid three grievances has been raised and following prayers were made.

A. Refund of illegal recovery of Rs. 6 lacs from his terminal benefits i.e. Payable gratuity amount.

B. Payment arrear amount of gratuity of Rs. 20,676.92 on account of key allowance @ 1280 per month which was payable, but not taken into account while calculating the gratuity amount.

C. Payment of leave encashment amount payable on account of privilege leaves accrued to him.

12. The learned counsel has submitted that when the grievance of the petitioner was not redressed, he has approached this court by filing the writ petition. The learned counsel has also submitted that due amount of statutory interest from the gratuity amount has also not been calculated and paid to the petitioner. He submits that though the privilege leave does not carry any statutory interest, but the petitioner is entitled to interest on the amount in equity which may be granted under Article 226 of the Constitution of India. However, during the

course of proceeding, it is not in dispute that no decision has been taken by the respondents with regard to his claim for privilege leave for which the representation was filed by the petitioner on 14.01.2019 (Annexure-11/1). It further appears that the other reliefs sought for by the petitioner are relating to calculation of gratuity and/or recovery of Rs. 6 lacs from the gratuity amount.

13. The learned counsel has referred to the following judgments primarily on the ground of double jeopardy:

(i) Judgment passed by the Hon'ble Guahati High Court in Writ Petition (Civil) No. 5469 of 2011 dated 24.07.2020 (Siba Prasad Sharmah versus State of Assam and others)

(ii) Judgment Passed by Hon'ble Delhi High Court in W.P.

(C) No. 7089 of 2013 & C.M. No. 7143 of 2005 reported in (2015) 150 DRJ 167 (Bhupinder Singh versus Punjab and Sind Bank)

(iii) Judgment passed by Hon'ble Patna High Court reported in (2015) LIC 3577, Civil Review No. 194 of 2014 in L.P.A. No. 1072 of 2013, (Manoranjan Prasad versus Central Bank of India and Others)

(iv) Judgment passed by Hon'ble Bombay High Court (Nagpur Bench) reported in (2017) AIR Bom R 146 (Tulsi Dass versus Union of India) Writ Petition No. 3626 of 2016

(v) Judgment passed by Hon'ble Madras High Court (Madurai Bench) reported in (2013) 7 MLJ 505 (R. Kannan vs. The Director, The Joint Director and the Deputy Superintendent of Police)

14. The learned counsel has submitted that in view of the aforesaid judgments, deduction of Rs. 6 lacs amounts to double jeopardy when no such punishment of deduction from the gratuity amount has been imposed upon the petitioner in the punishment order of the disciplinary proceedings.

15. Learned counsel has also relied upon a judgment passed by Hon'ble Supreme Court passed in Civil Appeal No. 10956 of 2013 decided on 11th December, 2013.

Arguments of the Respondents.

16. Learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer and has submitted that there is no question of double jeopardy in the present case. He submits that from perusal of the order of punishment the finding of quantum of loss occurred to the bank has clearly been recorded and as a sequel to such quantified finding of loss caused to the bank on account of his acts and

omissions, the respondents are within their right to deduct the quantified loss of Rs. 6 lacs from the gratuity payable to the petitioner. The learned counsel for the Respondents submits that the deduction on account of loss is in the consequence of the provisions of Payment of Gratuity Act read with the provisions of Bank (Officers and Employees) Service Regulations, 2010 as published by respondent Jharkhand Gramin Bank and is also in consonance with the provisions of Payment of Gratuity Act , 1972. The learned counsel submits that in case of termination of service by way of punishment, the respondent bank is within its right to recover the quantified loss caused to the respondent bank on account of acts and omissions of the petitioner for which clear finding has been recorded in the order of punishment as follows: -

"Forged signatures of authorized signatories were affixed on the cheque as well as signature of payee were also forged. Thus, you misappropriated the amount of Rs.6.00 lacs from CD A/c no. 10140 (with Bank of India, Club Side Branch Ranchi) by committing fraud and forgery."

17. The learned counsel submits that the judgements relied upon by the petitioner do not apply to the facts and circumstances of the present case as none of them relate to recovery of quantified loss from gratuity. He submits that there is no question of double jeopardy involved in this case and recovery from gratuity is consequential to the order of punishment where the loss has been quantified. The learned counsel also submits that even the judgement passed by Hon'ble Supreme court in the case of Bank of Baroda versus S.K. Kool (civil appeal no. 10956 of 2013) decided on 11.12.2013 does not apply to the facts and circumstances of this case considering the nature of penalty imposed and the nature of provisions involved in the said case as the punishment itself entitled the employee to receive superannuation benefits which is not the case in this writ petition.

18. The learned counsel submits that loss was assessed during departmental proceedings which is realizable from gratuity under the provision of Payment of Gratuity Act, 1972 read with the provisions of Bank (Officers and Employees) Service Regulations, 2010. Learned counsel has referred to the counter affidavit filed by the Bank and has

referred to paragraph 8 to 17 and submitted that the action of the bank is as per law.

19. Learned counsel for the Respondents has raised an objection with regard to maintainability of the writ petition itself by referring to Section 3 and 7 of Payment of Gratuity Act, 1972. He submits that under section 3 of the Payment of Gratuity Act, 1972, appropriate government is required to notify and appoint any officer to be the controlling officer who is responsible for administration of the Act. The learned counsel for the respondents has also placed on record a notification of Ministry of Labour and Employment dated 24.12.2019 said to be published in the Gazette of India extraordinary and submits that the controlling authority has been notified and accordingly the petitioner has remedy before the controlling authority in the matter of calculation, determination, deduction and payment of the gratuity amount. Learned counsel has referred to Section 7 of the Payment of Gratuity Act to submit that if there is any dispute as to amount of gratuity payable to an employee under the Payment of Gratuity Act or the admissibility of any claim, the dispute is to be raised before the controlling authority for deciding the same. The learned counsel submits that the dispute with regard to gratuity amount including interest etc., is to be adjudicated by the controlling authority and accordingly this writ petition is not maintainable.

20. So far as the matter in connection with leave encashment is concerned, although the respondent has disputed the entitlement of the petitioner in that regard, but it is not in dispute that no decision as such has been taken by the respondents by passing any order, either in favour or against the petitioner.

Findings of this Court

21. This court finds that the grievance of the petitioner is in two folds:-

a. deduction of Rs. Six lacs from gratuity payable to the petitioner; calculation of gratuity amount and interest payable on gratuity amount b. non-payment of leave encashment.

22. So far as the claim/dispute in connection with the gratuity amount is concerned, the petitioner has an appropriate remedy before

the controlling authority in terms of Section 3 read with Section 7 of the Payment of Gratuity Act, 1972. The entitlement of payment of gratuity to the petitioner is guided by the provisions of Bank (Officers and Employees) Service Regulations, 2010 as published by respondent Jharkhand Gramin Bank.

23. Admittedly, the petitioner has not raised any grievance before the controlling authority in terms of section 3 and 7 of the Payment of Gratuity Act, 1972 and has filed the writ petition after the sequence of events, as has been mentioned above.

24. Considering the nature of dispute in connection with calculation, deduction and claim of statutory interest on the gratuity amount, the petitioner has an efficacious alternative remedy before the controlling authority in terms of section 3 read with section 7 of The Payment of Gratuity Act of 1972, accordingly, this court is not inclined to entertain this writ petition on the aforesaid point regarding gratuity. However, liberty is reserved with the petitioner to raise the dispute before the controlling authority on the aforesaid disputes regarding gratuity within a period of three months from today. Considering the fact that this court is relegating the matter regarding payment of gratuity to alternative remedy, the judgements relied upon by the learned counsel for the petitioner on the point of double jeopardy is not being discussed and suffice it to say that the respondents have opposed the plea and have taken a specific stand that the judgements relied upon by the petitioner does not apply to the facts and circumstances of this case.

25. So far as the payment of encashment of privilege leave is concerned, it appears from the records of this case that the petitioner had approached the Regional Manager, Jharkhand Gramin Bank, Ranchi (now Regional Manager, Jharkhand Rajya Gramin Bank) by representation dated 14.01.2019, but no order has been passed. Accordingly, the Regional Manager, Jharkhand Rajya Gramin Bank is directed to consider the grievance of the petitioner in connection with encashment of privilege leave on removal from service and pass a reasoned order after granting an opportunity of hearing to the petitioner within a period of two months from the date of receipt of a representation from the petitioner along with a copy of this order and a

copy of the writ records. The aforesaid representation be filed within a period of three months from today. The reasoned order be communicated to the petitioner at the postal address through speed post which may be mentioned by the petitioner in the representation itself. If any amount is found payable on account of encashment of privilege leave, the same may immediately paid to the petitioner.

26. With the aforesaid observation and direction, this writ petition is disposed of.

(Anubha Rawat Choudhary, J.) Binit