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2016 DIGILAW 75 (GAU)

Subodh Chandra Saha v. Punjab National Bank

2016-02-02

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. A. Dasgupta, learned senior counsel assisted by Mr. S. Chakraborty, learned counsel for the applicant and Mr. A. Ganguly, learned counsel for the respondents. 2. Applicant as the writ petitioner has filed the related writ petition challenging the legality and validity of the order dated 5.9.2013 passed by the Circle Head of Punjab National Bank imposing the penalty of removal from service on the applicant following a departmental proceeding. This court by order dated 8.9.2014 had admitted the writ petition for hearing. However, it was observed that as regards claim of gratuity of the applicant, respondents may consider the same and pass appropriate order. Thereafter, the Circle Head of Punjab National Bank passed the order dated 27.9.2014 rejecting the claim of the applicant by declaring that gratuity amount of the applicant has been forfeited by the Punjab National Bank (Bank). 3. This Miscellaneous Application has been filed by the applicant for quashing of the said decision of the Circle Head and for a direction to the respondents to release the gratuity amount of the applicant. 4. At the outset, charge against the applicant may be briefly noticed. There were altogether four charges against the applicant, all relating to release of subsidy amount to the beneficiaries. The allegation was that applicant did not maintain the subsidy accounts properly and disbursed the subsidy amount without proper sanction and verification thereby jeopardising the interest of the Bank. As noticed above, following a departmental enquiry which held the charges to be proved, the disciplinary authority imposed the major penalty of removal from service on the applicant which would not be a disqualification for future employment. 5. As noticed above, as per observations of this court, disciplinary authority had considered the claim of the applicant for gratuity but rejected the same vide order dated 27.9.2014. 6. A perusal of the said order would go to show that the authority of Punjab National Bank took the view that because of the irregularities/lapses committed by the applicant, huge funds of the Bank were put to jeopardy. The order further discloses that an amount of rupees ten lakhs is the gratuity amount of the applicant which has been forfeited by the Bank. 7. Mr. The order further discloses that an amount of rupees ten lakhs is the gratuity amount of the applicant which has been forfeited by the Bank. 7. Mr. Dasgupta, learned senior counsel for the applicant, submits that impugned action of the respondents is wholly unacceptable inasmuch as applicant's case do not come within the purview of section 4(6) of the Payment of Gratuity Act, 1972 ('Act') and, therefore, forfeiture of the gratuity amount would not be permissible. As a matter of fact, no financial loss was caused to the Bank. Applicant has a good prima facie case and there is every possibility of the applicant succeeding in the writ petition. However, taking an extreme view, if applicant does not succeed and the charges framed against the applicant are accepted at their face value, even then also no case for withholding or forfeiture of gratuity is made out. He submits that provisions of section 4(6) of the Act has overriding effect over any other enactment or instrument which are inconsistent with the aforesaid provisions. 8. Mr. Ganguly, on the other hand, submits that under the Punjab National Bank (Employees') Pension Regulations, 1995, which have been framed in exercise of the powers conferred by clause (f) of sub-section (2) of section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, in the event of imposition of penalty of removal from service on an employee or officer, it would entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. This is a statutory provision and a special enactment. As opposed to this, provisions of the Act are general in nature. Therefore, in the event of conflict between a general enactment and a special enactment, it is the later which will govern the field. In support of his submissions, Mr. Ganguly has placed reliance on the following decisions : P. Rajan Sandhi v. Union of India and Anr., (2010) 10 SCC 338 . M. Azeez and Ors. v. Indian Bank, Judgment dated 11.4.2012 in WP(C) Nos.8450 to 8459 of 2012. United Bank of India v. Sri Pranab Kumar Bhuiyan and Ors., in Judgment dated 16.7.2014 in WP(C) 15864(w) of 2014. Allahabad Bank and Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1 . Rattiram v. State of M. P., (2012) 2 SCC (Cri.) 481. 9. Mr. v. Indian Bank, Judgment dated 11.4.2012 in WP(C) Nos.8450 to 8459 of 2012. United Bank of India v. Sri Pranab Kumar Bhuiyan and Ors., in Judgment dated 16.7.2014 in WP(C) 15864(w) of 2014. Allahabad Bank and Anr. v. Deepak Kumar Bhola, (1997) 4 SCC 1 . Rattiram v. State of M. P., (2012) 2 SCC (Cri.) 481. 9. Mr. Ganguly further submits that the expression "moral turpitude" as finding place in section 4(6) of the Act would depend upon the facts of each case. In the case of a Bank, when an employee commits misconduct while dealing with the Bank's money, such misconduct would partake the character of "moral turpitude". 10. Mr. Dasgupta in his reply submits that in the present case, there was no misappropriation or defalcation of Bank's money by the applicant. He had exercised his discretion as a Branch Manager and to further the interest of the Bank had released the subsidy amount to the beneficiaries. By no stress of imagination, can such act be termed as misconduct. Delving into the debate regarding special and general enactment, learned senior counsel submits that what would be a special enactment or what would be a general enactment would depend upon the context in which the particular enactment is used. There can be no hard and fast rule in such matters. But in so far payment of gratuity is concerned, it is the Act which is the special enactment having regard to its over-riding effect. Therefore, provisions of the Act would govern the claim of the applicant notwithstanding the bar of the Pension Regulations. In support of his submissions, Mr. Dasgupta has placed reliance on the following decisions : Damji Valji Shah v. LIC of India, AIR 1966 SC 135 . K.S.L. and Industries Ltd. v. Arihant Threads Ltd. and Others, (2008) 9 SCC 763 . Y.K. Singla v. Punjab National Bank and Others, (2013) 3 SCC 472 . Bank of Baroda v. S.K. Kool, (2014) 2 SCC 715 . Submissions made by learned counsel for the parties have received the due consideration of the court. 11. At the outset, it must be made clear that in this Miscellaneous Application, court is only concerned with the entitlement of the applicant to gratuity independent of the outcome of the challenge to the order of penalty which is the subject-matter of challenge in the related writ petition. 12. 11. At the outset, it must be made clear that in this Miscellaneous Application, court is only concerned with the entitlement of the applicant to gratuity independent of the outcome of the challenge to the order of penalty which is the subject-matter of challenge in the related writ petition. 12. To decide this Miscellaneous Application, court would proceed on the assumption that the charges framed against the applicant as held proved by the Enquiry Officer and accepted by the disciplinary authority are correct. Court would also proceed on the basis that the penalty imposed is valid. On such assumption, the issue raised by the applicant would require consideration. Therefore, the core issue for adjudication in this Miscellaneous Application is the entitlement of the applicant to gratuity notwithstanding imposition of penalty of removal from service on him. 13. As already noticed above, the disciplinary authority has held in the order dated 27.9.2014 that an amount of Rs.10 lakhs had accrued to the applicant on account of gratuity but because of the order of penalty imposed on the applicant, the gratuity amount has been forfeited. 14. As already indicated above, while deciding the issue raised in this Miscellaneous Application, court would steer clear of any deliberation which may have directly or indirectly any bearing on the adjudication of the principal challenge made in the writ petition. 15. It is not disputed that applicant is otherwise covered by the provisions of the Act and had it not been for the impugned penalty, the gratuity amount would have been released to him. Payment of gratuity to an employee on termination of his employment is governed by section 4 of the Act. As per sub-section (6), which starts with a non-obstante clause, gratuity to an employee whose services have been terminated for an act of misconduct causing any damage or loss or destruction of property belonging to the employer shall be forfeited to the extent of damage or loss so caused. Such forfeiture may be either wholly or partially. Gratuity can also be forfeited if termination of the employee is on account of his riotous or disorderly conduct or his termination is on account of an act involving "moral turpitude". 16. Such forfeiture may be either wholly or partially. Gratuity can also be forfeited if termination of the employee is on account of his riotous or disorderly conduct or his termination is on account of an act involving "moral turpitude". 16. A careful analysis of the provisions contained in sub-section (6) of section 4 would go to show that gratuity of an employee can be withheld either wholly or in part for the following reasons: (i) To the extent of damage or loss caused by the employee to the employer if termination is on account of an act of misconduct causing any damage or loss or destruction of property of the employer, (ii) If the termination of the employee is on account of riotous or disorderly act, (iii) If the termination of the employee is on account of an act involving "moral turpitude". 17. Section 14 of the Act provides that provisions of this Act or any Rule made there under shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or in any instrument or contract having effect by virtue of any enactment other than the Act. Thus, section 14 of the Act provides that the Act shall have overriding effect over other enactments to the extent of any inconsistency. 18. Punjab National Bank (Employees) Pension Regulations, 1995 governs pensionary dues and/or pension related matters of the employees belonging to the Punjab National Bank. Regulation 22(1) provides that resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits. 19. In Y.K. Singla (supra), the Apex Court after referring to the language employed in section 14 of the Act has held that a perusal of section 14 leaves no room for any doubt that a superior status has been vested on the provisions of the Act vis-a-vis any other enactment including any other instrument or contract inconsistent therewith. The Apex Court has held that from the mandate of section 14, it is imperative to further conclude that the provisions of the Act would have overriding effect with reference to any inconsistency in any other provisions or instrument. The Apex Court has held that from the mandate of section 14, it is imperative to further conclude that the provisions of the Act would have overriding effect with reference to any inconsistency in any other provisions or instrument. In that case, the Apex Court was confronted with the question as to which of the two provisions, i.e., the Act or the Punjab National Bank (Employees) Pension Regulations, 1995 would be applicable to determine the claim of the employee to interest on delayed payment of gratuity. 20. Prima facie having regard to the mandate of the Act having overriding effect, I am of the view that notwithstanding the provisions for forfeiture of pensionary benefits following removal from service of an employee as per regulation 22(1) of the Punjab National Bank (Employees') Pension Regulations, 1995, the provisions of the Act would have overriding effect. 21. Insofar the three conditions mentioned under sub-section (6) of section 4 of the Act, which would enable the employer to forfeit the gratuity, firstly there has been no determination of any actual loss caused to the Bank. What was charged and proved was that applicant did not follow the Rules and Regulations of the Bank while disbursing the subsidy amount thereby jeopardising the interest of the Bank. Therefore, there is no actual loss caused to the Bank by the misconduct of the applicant. In fact, the Bank has not even suggested any presumptive loss to it on account of misconduct of the applicant. 22. Insofar second ground is concerned, admittedly the same is not applicable to the applicant as his removal from service was not on account of any riotous or disorderly conduct. 23. That leaves the third ground, i.e., termination of employment for an act involving "moral turpitude". 24. Mr. Ganguly, learned counsel for the respondents, has placed reliance on the decision in Deepak Bhola (supra) in support of his submission that when there is a misconduct by a bank employee dealing with the Bank's money, that might be a case of "moral turpitude". Paragraphs 8, 9 and 10 of the said judgment are considered relevant and are extracted hereunder : "8. What is an offence involving "moral turpitude" must depend upon the facts of each case. Paragraphs 8, 9 and 10 of the said judgment are considered relevant and are extracted hereunder : "8. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. 9. This court in Pawan Kumar v. State of Haryana and Another, (1996) 4 SCC 17 at page 21 dealt with the question as to what is the meaning of expression "moral turpitude" and it was observed as follows". "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity". This expression has been more elaborately explained in Baleswar Singh v. District Magistrate and Collector, AIR 1959 All. 71 where it was observed as follows : "The expression "moral turpitude" is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore, the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must beheld to be due to vileness and deprivity. It will be contrary to accepted customary rule and duty between man and man". 10. In our opinion the aforesaid observations correctly spell out the true meaning of the expression "moral turpitude". Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3. 10. In our opinion the aforesaid observations correctly spell out the true meaning of the expression "moral turpitude". Applying the aforesaid test, if the allegations made against the respondent are proved, it will clearly show that he had committed an offence involving moral turpitude and, therefore, the appellant had the jurisdiction to suspend him under the aforesaid clause 19.3. The High Court observed that there was nothing on record to suggest that the management had formed an opinion objectively on the consideration of all relevant material available against the petitioner that in the circumstances of the case the criminal acts attributed to the petitioner implied depravity and vileness of character and are such as would involve moral turpitude. It did not regard entering into a criminal conspiracy to commit the aforesaid offences as being an offence involving moral turpitude. We are to say the least, surprised at the conclusion which has been arrived by the Allahabad High Court. There was material on record before the appellant, in the form of the report of the CBI/SPE, which clearly indicated the acts of commission and commissions, amounting to "moral turpitude' alleged to have been committed by the respondent. Furthermore the respondent has been charged with various offences allegedly committed while he was working in the Bank and punishment for which could extend up to ten years imprisonment (in case the respondent is convicted under section IPC." 25. Thus, the expression "moral turpitude" would encompass within its fold such conduct or behaviour which would display depravity and vileness of character. No hard and fast rule can be ascribed to define the aforesaid expression. It would depend upon facts of each case. In Deepak Bhola (supra), the Apex Court observed that where a person employed in a banking company dealing with money of the general public commits forgery and wrongfully withdraws the money which he is not entitled to withdraw that would be a case involving moral turpitude. 26. Coming to the facts of the present case, even as per the proven charge against the applicant, there was no allegation of forgery or embezzlement of Bank's fund. As noticed above, the allegation was that of not conforming to the Rules and Regulations of the Bank while disbursing the subsidy amount. Prima facie, such misconduct of the petitioner may not be a case involving "moral turpitude". 27. As noticed above, the allegation was that of not conforming to the Rules and Regulations of the Bank while disbursing the subsidy amount. Prima facie, such misconduct of the petitioner may not be a case involving "moral turpitude". 27. Having regard to the above and taking an overall view of the matter, court is of the view that it would meet the ends of justice if at least 50% of the gratuity amount is directed to be released to the applicant pending adjudication of his challenge to the penalty imposed. 28. Accordingly, respondents are directed to release 50% of the gratuity amount to the applicant within a period of six weeks from the date of receipt of a certified copy of this order. 29. Miscellaneous Case is accordingly allowed. 30. No costs.