Zonal Manager vs Haresh Chandra Agrawal
2021 Latest Caselaw 271 UK

                                                   Reserved Judgment



    IN THE HIGH COURT OF UTTARAKHAND AT
                             NAINITAL

          Writ Petition (M/S) No.805 of 2017


1. Zonal Manager, Central Bank of India, Zonal
   Office, Link House, Press Area, 3 Bahadur Shah
   Zafar Marg, New Delhi
2. Regional Manager, Central Bank of India, Astley
   Hall Branch 1st Floor, Rajpur Road, Dehradun,
   Uttarakhand
3. Chief Manager, Central Bank of India, Astley Hall
   Branch, Rajpur Road, Dehradun, Uttarakhand
                                                        ......Petitioners
                                Versus

Haresh Chandra Agrawal S/o Late Sri Deoki Nandan
Agarwal, R/o K E-94 Kaveri Kunj Phase-I, Kamala
Nagar, Agra, Uttar Pradesh


                                                        ....Respondent
PRESENT:

Mr. Mahesh Chandra Pant, Advocate for the petitioners
Mr. Ajay Veer Pundir, Advocate for the respondent

                            JUDGMENT

Hon'ble Lok Pal Singh, J.

By means of present writ petition, petitioners have sought the following reliefs:-

(i) Issue a suitable rule, order or direction quashing/set-aside the impugned judgment and order dated 14/22.08.2014 passed by the court of Controlling Authority under the Payment of Gratuity Act, 1972/Assistance Labour Commissioner (Zonal) Dehradun, Uttarakhand in case no.D-36 (01) 2013-ALC titled as Haresh Chandra Agarwal vs. Zonal

Manager, Central Bank of India and others (Annexure No.1 to the writ petition).

(ii) Issue a suitable rule, order or direction quashing/set-aside the impugned judgment and order dated 18/25.01.2017 passed by the court of appellate under the Payment of Gratuity Act, 1972/Dy. Chief Labour Commissioner (C), Dehradun, Uttarakhand

(04)/2014/Dy. CLC titled as Zonal Manager, Central Bank of India and others vs. Haresh Chandra Agrawal and in second appeal D-36 (08)/2014/Dy. CLC titled as Haresh Chandra Agrawal vs. Zonal Manager, Central Bank of India and others (Annexure No.2 to the writ petition).

2. Factual matrix of the case is that the respondent was initially appointed on the post of Clerk-cum-Typist on 28.04.1971 in the Central Bank of India. He was elected General Secretary of the Central Bank Officers' Association, Agra in 1984 where he continued till 27.09.2009. On 01.08.1994, he was promoted on the post of Senior Manager in Scale-III and was transferred from Civil Lines, Agra Branch of the Bank to its Agra Cantt. Branch. The respondent was then transferred to Dehradun Branch of the Bank vide order dated 14.10.2006. The respondent moved an application for leave w.e.f. 23.10.2006 to 31.10.2006 for organizational work and again w.e.f. 01.11.2006 to 11.11.2006 on grounds of sickness, which was not sanctioned by the sanctioning authority for want of medical certificate. Vide letter dated

07.11.2006, the respondent was relieved from Agra Cantt. Branch and was advised to report at Dehradun Branch. Subsequently, the respondent was served with a charge-sheet on 27.12.2006 for as many as nine charges, whereby charges of misconduct and undue behaviour were levelled against the respondent. In the departmental proceedings, the charges were proved against the respondent, and consequently, he was dismissed from service w.e.f. 20.08.2007. Against the punishment order, the respondent preferred an appeal before the appellate authority, which was also dismissed vide order dated 24.10.2008. Being aggrieved, the respondent preferred a review of the case under regulations 18 of the Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976, but the same was not considered by the Bank Management. Against the order of dismissal from service, the petitioner preferred a writ petition being WPSB No. 94 of 2014 before this Court. Thereafter, vide letter dated 31.07.2008, the bank management directed to forfeit the amount of gratuity of ` 3,50,000/- payable to the respondent due to disorderly conduct and undue behaviour. Against the forfeiture of gratuity, the respondent filed his objections. Subsequently, the respondent filed an application in Form N under sub-rule (1) of Rule 10 of the Payment of Gratuity (Central), Rules 1972 seeking direction from the Controlling Authority for the payment of due amount of gratuity together with interest for delay in its payment. The Controlling Authority, vide the impugned judgment and order, allowed the respondent's application and, and issued a notice to the petitioner Bank to make payment of

`5,46,807/- towards the amount of gratuity and `1,86,893/- as interest amount, totaling `7,33,700/- to the petitioner, under the Payment of Gratuity Act, 1972 (hereinafter to be referred as the Act). Being aggrieved by the order of Controlling Authority, the petitioner Bank preferred an appeal before the appellate authority. The respondent also preferred an appeal for payment of gratuity at the enhanced rate. The Appellate Authority, vide judgment and order dated 18/25.01.2017, disposed of both the appeals with the observation that the respondent is entitled to gratuity amounting to ` 5,92,861/- along with interest amount to ` 3,24,206/- totaling ` 9,17,067/-.

3. The case of the petitioner Bank is that the gratuity of the respondent was forfeited due to his proven disorderly conduct and undue behaviour in departmental enquiry; the claim raised by the respondent in this regard is subsequently barred by time and the authorities have passed the impugned orders against the settled principles of law. As per the petitioners' case, the respondent, if otherwise eligible, is entitled to receive, at the most, maximum gratuity amount of `3.50 lacs with no interest as the delay was committed by the respondent himself for claiming his gratuity amount as applicable during that period.

4. A counter affidavit has been filed by the respondent wherein is inter-alia stated that the bank management vide letter no.SM/2008-09/78 dated 31.07.2008 unlawfully forfeited the gratuity payable to the respondent in sheer disregard to and gross

violation of the provisions contained in the Payment of Gratuity Act. It is also stated that the both the courts below have given proper opportunity of hearing to the parties and after considering the provisions of Act, particularly section 4(5) have awarded the appropriate amount of gratuity by calculating the interest.

5. Rejoinder affidavit has also been filed by the petitioner to the counter affidavit, reiterating the averments made in the writ petition.

6. I have heard learned counsel for the parties and perused the entire material on record.

7. Learned counsel for the petitioner Bank would submit that as the respondent was dismissed from service, on account of misconduct and undue behaviour, he is not entitled to get the gratuity. To buttress his submissions, he would place reliance on a judgment of Hon'ble Apex Court rendered in the case of Y.P. Sarabhai v. Union Bank of India and another, (2006) 5 SCC 377. He would refer paragraph-11 of the judgment, which is reproduced as under:-

"11. We have considered the submissions made by both sides. Irrespective of order of dismissal of the appeal filed by the appellant, we feed that the request fervently made by the counsel for the appellant should be sympathetically considered to meet the ends of justice. The appellant was dismissed from service on 4.9.1988. He is without pay for all these years in view of the order of dismissal. According to the appellant, his wife also

died of cancer. It is settled law that a person who is dismissed from service is entitled to get only the provident fund but not gratuity. In the instant case, the total amount of provident fund payable to the appellant comes to Rs.3,36,158/- and gratuity comes to Rs.1,49,215/-. The appellant is liable to pay a sum of Rs.2,60,228/- towards outstanding dues to the Bank for the various loans availed by him from the Bank. Therefore, after deducting sum of Rs.2,60,228/- from and out of the total amount of provident fund of Rs.3,36,158/-, the balance comes to Rs.75,930/-. The appellant has now crossed 58 years of age and getting a new job at this juncture is also not possible for him. Considering the totality of all the peculiar facts and circumstances of this case, we feel that if we direct the Bank to pay a sum of Rs.1,50,000/-, which includes the balance provident fund of Rs.75,930/- after adjusting the loan amount due to the Bank, that would meet the ends of justice. We also make it clear that the appellant will have no other claims against the Bank hereafter. In order to give quietus to this long standing litigation, we direct the Bank to pay to the appellant by Demand Draft a sum of Rs.1,50,000/- towards full and final settlement of all claims between both the parties. If there is any discrepancy with regard to the amount payable to the appellant by way of provident fund and the loan amount, the appellant is at liberty to approach the Bank for any clarification and if such a letter is received from the appellant, the Bank shall consider the same and do the needful at the earliest.

8. Learned counsel for the petitioner would further submit that there is also inordinate delay on the part of the respondent in raising the issue of

gratuity but the authorities below have ignored this relevant aspect of the matter.

9. Per contra, learned counsel for the respondent would submit that in the charge-sheet there was no allegation of any financial irregularities nor is there any allegation that he caused loss to the bank in any manner whastsoever, thus, it was not proper for the petitioner bank to forfeit the gratuity of the respondent.

10. Having considered the rival submissions of learned counsel for the parties and on perusal of the material brought on record, the core issue before this Court is whether the orders impugned passed by the authorities are justified, entitling the respondent to get the gratuity, after his dismissal from service.

11. The provision for Payment of Gratuity is enshrined under Section 4 of the Payment of Gratuity Act, 1972. Section 4 (1) says that Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years-(a) on his superannuation;

(b) on his retirement or resignation; or (c) on his death or disablement due to accident or disease; whereas sub Clause (6) spells out the conditions under which gratuity of an employee can be stopped or withheld.

12. Section 4(6) of Payment of Gratuity Act 1972 is quoted below:-

"(6) Notwithstanding anything contained in sub- section (1),-

(a) the gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;

(b) the gratuity payable to an employee may be wholly or partially forfeited.

(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or

(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."

13. Hon'ble Apex Court in Balbir Kaur and Another v. Steel Authority of India Ltd. and Another [(2000) 6 SCC 493], has opined as under:-

"...As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee..."

14. Gratuity is earned under the payment of Gratuity Act in lieu of the services rendered by a person in the concerned department. Length of qualifying service is a relevant factor for claiming the

gratuity under the Act. In the case at hand, the respondent was appointed as Clerk-cum-Typist in the petitioner Bank on 28.04.1971; on 01.08.1994 he was promoted as Senior Manager; and on 20.08.2007, he was dismissed from service. Thus, he had rendered more than 35 years of service before his dismissal from service. Furthermore, there are no charges of financial irregularities, misappropriation or loss or damage or destruction of property to the Bank, against the petitioner. The respondent has been dismissed from service on account of proved misconduct only. There is no riotous behaviour or any act of violence involved nor is there moral turpitude alleged. Under all these circumstances, it was not proper for the petitioner Bank to forfeit the gratuity of the respondent.

15. Insofar as the contention of the learned counsel for the petitioner with regard to delay in raising the claim of gratuity is concerned, this aspect has been delve in detail by the authorities and has been rightly observed that it is primarily the employer's duty to calculate and make payment of proper due amount of gratuity to the employee, and that in the instant case delay has occurred because of the petitioner Bank itself.

16. As regards the case-law of Y.P. Sarabhai (supra) cited by the learned counsel for the petitioner, the said judgment is distinguishable on facts and the ratio of law laid down therein is of no help to the petitioner.

17. In the light of aforesaid, I am of the considered view that the authorities below have not committed any error of law in directing the petitioners Bank to make payment of the amount of gratuity to the respondent.

18. Now, coming to the jurisdiction of this Court under Article 227 of The Constitution of India. The jurisdiction under Article 227 of Constitution of India is merely a superintendence jurisdiction unless there is miscarriage of justice. Ordinarily, the Court should not interfere under Article 227 of the Constitution of India. In Radhey Shyam and another vs. Chhabi Nath and other, (2015) 5 SCC 423, Hon'ble Apex Court has held as under:-

"... Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution of India are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is

being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.

19. In the case hand, no miscarriage of justice has been occasioned by passing of the orders impugned. No interference is, therefore, called for. Writ petition lacks merit and the same is hereby dismissed.

20. No order as to costs.

(Lok Pal Singh, J.)

25.01.2021 Rajni