Venugopal vs State Bank Of India
2021 Latest Caselaw 1942 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                          WP(C).No.18945 OF 2019(P)


PETITIONER:

                VENUGOPAL
                AGED 63 YEARS
                S/O KUTTANPILLAI, RADHEYAM, NEERKUNNAM, VANDANAM
                P.O.ALAPPUZHA-688 005.

                BY ADV. SRI.P.SHANES METHAR

RESPONDENTS:

       1        STATE BANK OF INDIA
                STATE BANK BHAVAN, MADAME CAMA ROAD, MUMBAI 400 021, REP. BY
                ITS CHAIRMAN

       2        THE CHIEF GENERAL MANAGER,
                STATE BANK OF INDIA, LOCAL HEAD OFFICE ROTARY JUNCTION,
                POOJAPPURA P.O.THIRUVANANTHAPURAM-695 012.

       3        THE ASSISTANT GENERAL MANAGER,
                PPG DEPARTMENT, STATE BANK OF INDIA, LOCAL HEAD OFFICE,
                ROTARY JUNCTION,POOJAPPURA P.O.THIRUVANANTHAPURAM-695 012.


                BY SRI.P.RAMAKRISHNAN, SC

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18945 OF 2019(P)

                                     2




                              JUDGMENT

The petitioner concedes that while he was serving the 1 st

respondent - State Bank of India as a Head Cashier, he was

proceeded against through a disciplinary enquiry on the allegation

that he had stolen a cheque leaf from a customer by name,

Smt.Ganga V. Nair, and had misused the same to pay Rs.40,000/-

in favour of a person by name, Sri.R.Anil Kumar.

2. The petitioner says that after a thorough enquiry,

Ext.P1 order had been issued against him imposing the

punishment of "discharge from service with superannuation

benefits", namely, with pension, provident fund and gratuity,

which is due under the applicable Rules and Regulations

prevailing at the relevant time. He submits that even though he

filed an appeal against Ext.P1, it culminated in Ext.P3 order of the

Appellate Authority, confirming it; and therefore, that, as matters

now stand, he has been discharged from service with all

superannuation benefits including pension, provident fund and

gratuity, as the case may be.

3. The petitioner says that in spite of this, on 19.07.2010, WP(C).No.18945 OF 2019(P)

the Managing Director of the Bank has issued Ext.P4 order,

directing that his gratuity be withheld under the provisions of

Section 4 (6)(b)(ii) of the Payment of Gratuity Act, 1972, since he

has been discharged from service on the proof of an offence

involving moral turpitude. The petitioner says that Ext.P4 has

been issued without understanding the true facts and alleges that

it is not even a speaking order, which would clearly indicate that

the specific punishment imposed against him, through Exts.P1

and P3, has not even been adverted to.

4. Smt.Namitha Jyothish, learned counsel appearing for

the petitioner, in addition to the above, submitted that since

Exts.P1 and P3 orders of the disciplinary Authority and the

Appellate Authority respectively, make it clear that the petitioner

has been discharged from service with all superannuation benefits

-- which will include pension and/or provident fund and gratuity

as would be due otherwise under the Rules and Regulations

prevailing at the relevant time -- the Managing Director could not

have, thereafter, issued Ext.P4 withholding her client's gratuity.

She pointed out that as per Ext.P2 Bipartite Settlement governing

disciplinary action in the Bank, gratuity could not have been WP(C).No.18945 OF 2019(P)

withheld when her client had been "discharged from service with

superannuation benefits". Smt.Namitha Jyothish, therefore,

prayed that Ext.P4 be set aside and the competent Authority of

the Bank be directed to pay her client the applicable gratuity

without any further delay.

5. In response, Sri.P.Ramakrishnan, learned Standing

Counsel for the respondent - Bank, submitted that even though

the petitioner has been discharged from service through Exts.P1

and P3, he is not entitled to the gratuity since, going by the

specific mandate of Section 4(6)(b)(ii) of the Payment of Gratuity

Act, forfeiture of the said amounts is an automatic consequence

when an employee is found guilty of an offence involving moral

turpitude. He explained that since the petitioner has been found

guilty of pilferage by misusing the cheque of another customer,

the offence against him certainly involves moral turpitude and

therefore, that as per the provisions of the afore mentioned Act,

the Managing Director had no other option but to issue Ext.P4.

He, therefore, prayed that Ext.P4 be set aside.

6. Even when I find some force in the submissions of

Sri.P.Ramakrishnan, the fact remains that the petitioner has been WP(C).No.18945 OF 2019(P)

awarded a punishment of discharge from service "with

superannuation benefits, namely pension and/or provident fund

and gratuity as would be due otherwise under the Rules or

Regulations prevailing at the relevant time and without

disqualification"(sic)

7. However, this aspect, has not been considered in

Ext.P4 and the Managing Director only says that, as per the

provisions of the Payment of Gratuity Act, the gratuity of the

petitioner cannot be paid since the offence proved against him

involves moral turpitude.

8. I am, therefore, of the firm view that the Managing

Director must now reconsider the matter taking specific note of

Exts.P1 and P3 orders issued against the petitioner and adverting

to the provisions of Ext.P2 Bipartite Settlement governing the

disciplinary action against the employees of the Bank and after

affording an opportunity of being heard to the petitioner -- either

physically or through video conferencing -- thus culminating in an

appropriate decision thereon, as expeditiously as is possible but

not later than two months from the date of receipt of a copy of this

judgment.

WP(C).No.18945 OF 2019(P)

In order to pave way for the afore consideration, I set aside

Ext.P4, not because I have found against it affirmatively, but so

that the Managing Director can take a fresh decision de hors its

contents, in terms of the directions herein.

SD/-

                                           DEVAN RAMACHANDRAN

rp                                                  JUDGE
 WP(C).No.18945 OF 2019(P)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE ORDER NO. DGM/EKM/AGM3/DPS/57
                           DATED 28.5.2009

EXHIBIT P2                 TRUE COPY OF THE 7TH BI-PARTY SETTLEMENT AND

MEMORANDUM OF SETTLEMENT DATED 10.4.2002 ADOPTED BETWEEN THE IBI AND THEIR WORKMAN

EXHIBIT P3 TRUE COPY OF THE ORDER NO DGM/EKM/PPS/180 DATED 30.9.2009 OF THE APPELLATE AUTHORITY THE DEPUTY GENERAL MANAGER, ZONAL OFFICE, ERNAKULAM

EXHIBIT P4 TRUE COPY OF THE ORDER NO ATS/PPG/3704 DATED 19.7.2010 OF THE MANAGING DIRECTOR SBT.HEAD OFFICE, TRIVANDRUM

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 20.2.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

EXHIBIT P6 TRUE COPY OF THE LETTER NO LHO/TVM/PPG/626 DATED 14.3.2019 OF THE 3RD RESPONDENT