2019 LLR 295

UTTARAKHAND HIGH COURT

Hon’ble Mr. Alok Singh, J.

W.P. No. 12/2012 (M/S), D/–28-11-2018

 

S.P. Maheshwari

vs.

Secretary, Canara Bank Employees Gratuity

Fund and Others

 

PAYMENT OF GRATUITY ACT, 1972 – Section 4(5) – Payment of Gratuity (Central) Rules, 1972 – Rule 8 – Forfeiture of gratuity amount of petitioner – Principle of audi alteram partem, a basic concept of principles of natural justice – Has not been followed – Hence, the order of forfeiture of gratuity passed without affording any opportunity of hearing – Respondent-Bank shall pass a fresh order on issue of forfeiture of gratuity.

Para 6

 

For Petition: P.K. Mittal, Advocate.

 

For Respondent: Mr. Ashish Kumar Joshi, Advocate.

IMPORTANT POINTS

IMPORTANT POINTS

• An order regarding forfeiture of gratuity of the petitioner, passed by the employer without affording any opportunity of hearing to the employee-petitioner is unsustainable since it has been passed in violation of concept of principles of natural justice.

 

JUDGMENT

ALOK SINGH, J.—1. By means of present writ petition, petitioner seeks following relief, among others:

            “(a) Issue a writ, order or direction in the nature of certiorari setting aside the judgment and order dated 04.11.2011 passed by the Ld. Appellate Authority under Payment of Gratuity Act, 1972 and Regional Labour Commissioner (Central), Dehradun in PG Appeal No. D-36(02)2010-RIC & No.D-36(03)2010-RLC.

            (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents No.1 & 2 to pay the full and final gratuity with due interest to the petitioner on the basis of correct and revised salary as mentioned in para no. 40.”

 

2.  It is alleged by the respondents-Bank that the petitioner, while working as Manager in Canara Bank at Muzaffarnagar Main Branch, has acted in gross negligent manner and various acts of misconduct, resulting to which, a loss of Rs. 30,04,001 was caused to the bank. One Kuldeep Kumar Tyagi was appointed as Agent under the New Nitya Nidhi Deposit Scheme (NNND). According to the petitioner, the said agent was entrusted with the job of collection of amount from depositors, but the said agent did not deposit the amount, which was collected from the depositors and, in this way, committed fraud with the bank. When the said fraud came into light, petitioner alongwith several other officers was charge-sheeted. On 15.05.2008, the petitioner was removed from service, which is under question before the High Court of Allahabad.

3.  The Canara Bank filed a suit before the Debt Recovery Tribunal, Lucknow for recovery of Rs. 28.21 Lakh (approx.). The DRT, Lucknow has passed a decree to the tune of Rs. 25.34 Lakh (approx.) against the agent Kuldeep Kumar Tyagi and his surety. The Bank vide letter dated 11.10.2008 informed the petitioner that the sum of Rs. 3,50,000 is payable to him as gratuity under Rule 8 of the Payment of Gratuity (Central Rules 1972). However, it is the case of the petitioner that the amount of gratuity has not been properly calculated. The Secretary, Canara Bank Employee’s Gratuity Fund, vide letter dated 11.10.2008 to the Manager, Canara Bank, Lucknow, disclosed that the differential amount/loss occurred (i.e. claimed amount minus decreed amount) was liable to be recovered from the gratuity amount of petitioner. Pursuant to this, the Canara Bank, Lucknow instructed the Canara Bank, Dehradun to deduct/recover the sum of Rs. 2,86,978 from the gratuity amount of the petitioner for causing loss to the Bank.

4. Feeling aggrieved, the petitioner has preferred an application before the Controlling Authority, who, in turn, vide order dated 22.06.2010, allowed the application of the petitioner and directed the respondents- bank to pay a sum of Rs. 2,86,928 against the gratuity. The Controlling Authority has also directed the respondents-bank to cover the petitioner under sub-section (5) of Section 4 of the Gratuity Act. Feeling aggrieved, the bank filed appeal before the appellate authority, who, in turn, vide order dated 04.11.2011 allowed the same.

5. Learned counsel for the petitioner contended that the respondent-bank has recovered a sum of Rs. 2.86 Lakh (approx.) from the gratuity amount without prior notice to the petitioner, which is against the principle of natural justice. It was vigorously contended that the differential loss, which has been recovered from the gratuity of the petitioner, should be recovered from the security deposit of agent concerned and credit balance in NNND.

6. Broadly, there are two issues involved in the present petition. One is about the forfeiture of gratuity of the petitioner and another is with regard to the payment of gratuity on the basis of correct & revised pay-scale. With regard to first issue regarding forfeiture of gratuity amount of the petitioner, this Court is of the considered opinion that the principle of Audi Alteram Partem, which is the basic concept of the principle of natural justice, has not been followed. This doctrine states that no one shall be condemned unheard and no decision can be declared without hearing the affected person. The order regarding forfeiture of gratuity of the petitioner was passed by the respondent-bank without affording any opportunity of hearing to him.

7.  It is also the case of the petitioner that he was not a party in the suit before the Debt Recovery Tribunal, therefore, the question of recovery of differential amount from the petitioner does not arise. Petitioner contends that the bank can recover the differential amount from the security deposit and credit balance of NNND agent.

8.  In view of above, this Court is of the considered view that the respondent bank shall pass a fresh order, after giving due opportunity of hearing to the petitioner, on the issue regarding forfeiture of his gratuity. While passing a fresh order, the respondent bank shall also take into consideration the petitioner’s contentions, including his submission that the differential loss, which is to be recovered from the gratuity of the petitioner, should be recovered from the security deposit of agent concerned and credit balance in NNND. Since the matter regarding removal of petitioner from service is sub-judice before the Allahabad High Court, this Court does not think it proper to comment on the merits of the case.

9. So far as the second issue regarding the payment of gratuity on the basis of correct & revised pay-scale is concerned, the matter is pending consideration before the respondent-bank. The respondent authority is directed to decide the same within a period of six weeks from the date of production of a certified copy of this order.

10. In the light of observations made above, the writ petition is disposed of. No order as to costs.

 

Petition Disposed Of.