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Meghalaya High Court · body

2017 DIGILAW 38 (MEG)

Pranesh Biswas v. Union of India

2017-06-06

S.R.SEN

body2017
JUDGMENT : Sr. Sen, J. Heard Mr. S.C. Chakrawarty, learned Sr. counsel assisted by Ms. M. Mahanta, learned counsel for the petitioner as well as Mrs. T. Yangi, learned counsel for the respondents/Bank. 2. The brief fact of the petitioner's case in a nutshell is that: "The petitioner was initially appointed as a clerk-cum-cashier in the State Bank of India on 01.09.1983 and promoted as a Scale 1 officer on 01.08.1997. Subsequently a departmental proceedings was held against him and he was given the penalty of dismissal from service on 08.08.2007. However, neither in the enquiry report was there any conclusive findings of any financial loss caused to the bank by the petitioner, nor was the petitioner given any penalty for forfeiture of any of his monetary dues for the period of service rendered by him. In November 2010, the petitioner began corresponding with the bank for payment of amounts due to him on account of gratuity and the bank's contribution to his provident fund. The bank refused to pay the amount on account of the bank's contribution to the petitioner's provident fund citing the bank rule which actually vests the bank with the discretion to pay the same. As for gratuity, the bank issued a fresh show cause notice to the petitioner who duly filed the same, but without following any procedure of departmental proceedings and without granting any consideration to the petitioner's show cause, an order was made for forfeiture of his gratuity. Hence the petitioner is compelled to file this instant writ petition." 3. The learned Sr. counsel appearing on behalf of the petitioner submits that the petitioner joined the service as a clerk-cum-cashier in the State Bank of India on 01.09.1983. On 01.08.1997 he was promoted as a Scale 1 officer. In 2004-2005 he was posted as the officiating Branch Manager of the Songsak Branch, State Bank of India, Garo Hills, Meghalaya. During his service as officiating Branch Manager, allegation was brought against him that there were some irregularities in the Songsak Branch, State Bank of India and misappropriation of Rs. 2,34,000/- (Rupees two lakhs thirty four thousand) only. Thereafter, an enquiry was conducted and the petitioner was put under suspension and thereafter, he was terminated. During his service as officiating Branch Manager, allegation was brought against him that there were some irregularities in the Songsak Branch, State Bank of India and misappropriation of Rs. 2,34,000/- (Rupees two lakhs thirty four thousand) only. Thereafter, an enquiry was conducted and the petitioner was put under suspension and thereafter, he was terminated. On the basis of the enquiry, the bank arbitrarily did not release his entire provident fund as well as the gratuity for which, he made a representation, but the same was not considered. Hence, this instant petition for a direction to release his entire provident fund and gratuity. 4. In reply to the submission advanced by the learned Sr. counsel for the petitioner, the learned counsel for the respondents/Bank submitted that a thorough enquiry was conducted and after enquiry, it was found that the petitioner has withdrawn certain premature deposits. The learned counsel also further submits that there were 10(ten) allegations out of which all allegations were found proved against him. 5. After hearing the submissions advanced by the learned counsel and after going through the show cause reply at Annexure-2 dated 15th October, 2005 of the writ petition (attached a copy in English) wherein, it is stated at Para 03-05 that the petitioner himself admitted that, "In the A/C opening form the name was Shir. Malen Sangma so, in the STDR the name was changed to Shri. Malen Sangma. During payment, Malen Sangma stated that his daughter met an accident and he has to arrange for her medical treatment and if we allow he will collect the payment in the afternoon. Under the circumstances, on humanity ground I have collected the payment for Malen Sangma from the cash counter which was handed over to him on his arrival in the evening of that day." At Para 06 the petitioner also states in his reply that, "In all these cases, application for premature payment of the depositors were attached with the relative STDRs and that all the payments were received by the depositors themselves." At Para 07 the petitioner also admitted that, "The erroneous entry has since been rectified at the Branch." And he also assured that such happenings will not occur in future. 6. On perusal of Annexure-9 of the writ petition, it appears that after enquiry, the petitioner was dismissed from service. 7. 6. On perusal of Annexure-9 of the writ petition, it appears that after enquiry, the petitioner was dismissed from service. 7. From the Annexure-16 of the writ petition, it appears that the bank has issued a show cause notice to the petitioner as to why his gratuity should not be forfeited to the extent of loss caused to the bank and also cautioned him that if he does not reply within the stipulated period, it will be presumed that he has admitted that he has nothing to say on the show cause notice. 8. Annexure-20 of the writ petition is the order for forfeiture of gratuity in full. 9. From the Annexure-2 Page 24 of the writ petition at Para 03-05 the reply by the petitioner to the Assistant General Manager, State Bank of India, Regional Office, Tura it appears that the petitioner has changed the name of Malen Sanmga and payment was collected by him. In this point, in my view, whatever the circumstances may be, rule does not allow to encash STDR by a Manager with his own hand without following any formalities. Secondly, the question remains as to who is this Malen Sanmga and whether he really exists? Nothing is available and neither the petitioner could explain. 10. On the other hand, Annexure-7 Page 37 of the writ petition, P.W. 1 clearly states that there is no customer in the name of Shri Malen Sangma at Songsak Branch. Similar view has been expressed by P.W. 3. Lastly, it is also mentioned that from the depositions, it is clear that the petitioner prevailed upon Shri P.K. Brahma to pay the proceeds of the STDR No. 150548 for Rs. 1,04,000/- (Rupees one lakh four thousand) only in absence of Malen Sangma and the payment of the STDR was reportedly collected by the petitioner. So, after examining these Annexures mentioned above, it appears that there is no person called Malen Sangma neither the petitioner could produce the existence of Malen Sanmga and in his reply, he has also admitted that he had withdrawn the money on humanitarian ground violating the rules and norms of the bank. So, after examining these Annexures mentioned above, it appears that there is no person called Malen Sangma neither the petitioner could produce the existence of Malen Sanmga and in his reply, he has also admitted that he had withdrawn the money on humanitarian ground violating the rules and norms of the bank. Therefore, I find no reason to direct the bank to release the provident fund contributed by the bank as well as gratuity, because from the record and the argument of the lawyers, it appears that, premature withdrawal of the STDR has cost financial loss to the bank, moreover it is clear that Malen Sangma does not exists. Therefore, no question arises for granting any order to release the provident fund contributed by the bank as well as the gratuity. Further, the Payment of Gratuity Act, 1972 is clear as to the position of law in cases where an employee has been terminated for an act constituting moral turpitude. Section 4 (6)(b)(ii) of the Payment of Gratuity Act, 1972 is reproduced herein below: "(b) the gratuity payable to an employee [may be wholly or partially forfeited] - (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 be him in the course of his employment." 11. Further with regards to the dispensation of the petitioner's Provident Fund, he shall not be entitled to the sum contributed by the Bank to his Provident Fund, unless permitted so by the Trustees, which is not the case in the instant writ petition. Rule 24 of SBI Employees' Provident Fund Rules further clarifies this position and is hereby reproduced herein below: "If any member shall be dismissed from the service of the Bank for any fault or other cause justifying dismissal, he shall not be entitled to receive, unless permitted to do so by the Trustees, the sums contributed by the Bank to his Provident Fund account, or any interest credited to the account on the sums so contributed. Provided that when any member is so dismissed, any amount due under a liability incurred by the member to the Bank (not exceeding in any case the sums so contributed by the Bank and interest thereon) shall be paid by the Trustees' to the Bank out of the sum standing to the credit of the member's account." 12. Provided that when any member is so dismissed, any amount due under a liability incurred by the member to the Bank (not exceeding in any case the sums so contributed by the Bank and interest thereon) shall be paid by the Trustees' to the Bank out of the sum standing to the credit of the member's account." 12. With this observation and direction the writ petition is dismissed and stands disposed of.