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2017 DIGILAW 716 (ORI)

Bishnu Charan Mohanty v. UCO Bank

2017-07-13

B.R.SARANGI

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JUDGMENT : B.R. SARANGI, J The petitioner, an employee of UCO Bank, has filed this application to quash order dated 15.11.2001 in Annexure-4, by which his claim for payment of gratuity has been denied on the ground of gross misconduct, which constitute moral turpitude as per Clause (ii) of Sub-rule (1) of Rule 8 of the payment of Gratuity (Central) Rules, 1972. 2. The factual matrix of the case is that the petitioner joined as a ministerial staff in UCO Bank, Khandapara Branch on 08.04.1974. Thereafter, he was promoted to different posts and was working in junior management scale on 08.10.1998, when he was removed from service. As there was some allegation of commission and omission, while he was working as clerk at Puri Branch during the period from 20.08.1980 to 06.11.1982, a disciplinary proceeding was initiated against him on 08.08.1996. Consequentially, final order was passed on 08.10.1998 by the disciplinary authority removing the petitioner from service. Against the said order of removal, the petitioner preferred an appeal, which was also rejected. Thereafter, the petitioner approached this Court by filing OJC No. 9992 of 1999, which was disposed of by order dated 29.08.2000. In that case, argument was confined to the question of punishment and this Court held that the appellate authority had not taken into consideration Clause-21 of the memorandum of settlement dated 14.02.1995 between the Management of 56 ‘A’ Class Banks, as represented by the India Banks’ Association, and their workmen as represented by the All India Bank Employees’ Association, wherein the petitioner was entitled to superannuation benefits even after removal from service. Having held so, this Court directed the appellate authority to reconsider the appeal in terms of the provisions and pass necessary orders within a period of three months from the date of communication of that order. 3. In compliance of the order dated 29.08.2000 passed in OJC No. 9992 of 1999, the appellate authority on 30.11.2000 passed a modified order, the relevant part of which reads thus: “xx xx xx Accordingly, I have examined the charge sheet dated 8-8-96, the Enquiry Officer’s report dtd.17-7-98, the submission of Sri B.C. Mohanty dated 28-8-98 on the Enquiry Officer’s report, the Minutes of personal hearing given to Sri B.C. Mohanty dated 7-10-98 as well as the order of the Disciplinary Authority dated 8.10.98 along with all other relevant records in the matter. I have examined the appeal dated 2-11-98 preferred by Sri Mohanty and the comments of the Disciplinary Authority dated 10.11.98 on the appeal. I find that the departmental enquiry against Sri Mohanty was conducted in an appropriate manner. I have considered all the facts and circumstances of the case and hold that the serious charges brought against Sri Mohanty have been fully proved in the enquiry. I fully concur with the views and findings of the Disciplinary Authority expressed in his order dtd.8-10-98. However, I find that for the charges proved in the enquiry, the Disciplinary Authority awarded the penalty of ‘removal from service, which will not be a disqualification for future employment’. I am of the opinion that as the acts of misconduct were committed by Sri B.C. Mohanty during his tenure at UCO bank, Puri branch as Clerk/Spl. Assistant (Officiating), the penalty awarded by the Disciplinary Authority should have been as per clause 19.12 of the Bipartite Settlement applicable to the staff under awards. Therefore, I have decided to amend the penalty. Accordingly, in terms of power conferred on me under Regulation 17 of UCO Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976, as amended, I hereby pass the following order: “For the charges proved –Sri B.C. Mohanty (PFM No. 16198) is removed from Bank’s service with superannuation benefits as would be due to him otherwise and without disqualification for future employment.” This order is passed in suppression to the earlier order dtd.24-3-99 in the matter passed by the appellate authority.” In view of the order passed by the appellate authority that the petitioner was removed from bank’s service with superannuation benefits as would be due to him otherwise and without disqualification for future employment, the petitioner claimed for retrial benefits such as gratuity, but the same has been denied pursuant to order dated 15.11.2001 in Annexure-4 assigning reasons that the petitioner has committed gross misconduct, which constitute moral turpitude, hence this application. 4. Mr. 4. Mr. Asok Mohanty, learned Senior Counsel appearing for the petitioner strenuously urged that once the question of punishment has been settled by virtue of the modified order passed by the appellate authority on 30.11.2000 by stating that the petitioner was removed from the bank’s service with superannuation benefits as would be due to him otherwise and without disqualification for future employment, the impugned order contained in letter dated 15.11.2001 rejecting the claim of the petitioner for gratuity on the ground of alleged gross misconduct on the part of the petitioner which constitute moral turpitude cannot sustain in the eye of law. It is further contended that the provisions contained in the Payment of Gratuity (Central) Rules, 1972 are not applicable to the petitioner, particularly when his service condition is regulated by the Bipartite Settlements between the banks and their employees at Annexure-5. As per Chapter-XII, Clause 12.2 of the Bipartite Settlements entered between the banks and their employees, it was clearly held that there would be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank, thereby, the order impugned has been passed without application of mind and without applying the provisions of law applicable to the employee concerned. 5. Mr. A.K. Nath, learned counsel appearing for the Bank, while justifying the order passed by the authority concerned, stated that the appellate authority by order dated 24.03.1999 had rejected the appeal preferred by the petitioner in exercise of the power conferred on him under Regulation 17 of the UCO Bank Officers’ Disciplinary & Appeal Regulations, 1976. Although the proceeding was initiated while the petitioner was working as an officer, but the occurrence, for which the proceeding was initiated, relates to the period when he was working as a Clerk. He further contended that as the petitioner was removed from service due to commission of gross misconduct which constitute moral turpitude as per Clause (ii) of Sub-rule (1) of Rule 8 of the Payment of Gratuity (Central) Rules, 1972, the order so passed by the authority concerned in denying the claim of the petitioner for payment of gratuity is wholly and fully justified and does not warrant interference by this Court at this stage. 6. This Court heard Mr. A. Mohanty, learned counsel for the petitioner and Mr. 6. This Court heard Mr. A. Mohanty, learned counsel for the petitioner and Mr. A. Nath, learned counsel for opposite parties and perused the record. Pleadings between the parties having been exchanged, the matter has been disposed of at the stage of admission with the consent of learned counsel for the parties. 7. The admitted fact, as unfurled from the factual matrix delineated above, is that a proceeding was initiated against the petitioner, while he was rendering service as a clerk under the opposite party-bank, i.e., for the period from 20.08.1980 to 06.11.1982 and such proceeding was initiated on 08.08.1996, while he was working in a management scale. The disciplinary authority imposed the punishment of removal from service, which was confirmed by the appellate authority. This Court on being moved set aside the order of punishment and remitted the matter back to the appellate authority by order dated 29.08.2000 passed in OJC No. 9992 of 1999. Pursuant thereto, the appellate authority on 30.11.2000 passed a modified order that the petitioner is removed from bank service with superannuation benefits as would be due to him otherwise and without disqualification for future employment. Therefore, the petitioner claims that he is entitled to get the superannuation benefit as has been due to him in terms of the Bipartite Settlements arrived at between the banks and their workmen. 8. Chapter-XII of the Bipartite Settlements arrived at between banks and their workmen deals with gratuity and pension. Clauses-12.1 and 12.2 thereof, being relevant for an effective adjudication of the case, are extracted hereunder: “12.1 The provisions of the Desail Award on Gratuity shall continue except that in suppression of paragraphs 8.24 and 8.35 thereof, pay for the purposes of calculating the gratuity shall be the average of the basic pay (100%) and special allowance and officiating allowance payable during the 12 months next proceeding death, disability, retirement, resignation or termination of services, as the case may be. 12.2 There will be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank and in that case to that extent only.” A bare reading of the aforementioned provisions would show that there will be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank. But in the instant case the commission and omission alleged to have been committed by the petitioner cannot amount to such misconduct causing financial loss to the bank so as to deny him the benefits of gratuity for removal from service. 9. The provisions contained in the Payment of Gratuity Act, 1972 are not applicable in view of the fact that the petitioner’s establishment, namely, bank in question has not been notified under Section 1(3) of the Payment of Gratuity Act, 1972. More so, the proceeding, which had been initiated against the petitioner, relatable to the period during which he was discharging the ministerial duty, i.e., clerk. 10. The provisions of Clause (ii) of Sub-rule (1) of Rule 8 of the Payment of Gratuity (Central) Rules, 1972, on which reliance has been placed for denying the claim of the petitioner, are not applicable to the petitioner in view of the fact that the Bipartite Settlements between the banks and their workmen are applicable to him. As such, no material has been produced by the opposite parties indicating the applicability of the Payment of Gratuity Act, 1972 and the Rules framed thereunder, as stated in the counter affidavit. 11. In the counter affidavit, reliance has also been placed on UCO Bank Officers’ Disciplinary and Appeal Regulations, 1976. The same are also not applicable to the petitioner in view of the fact that the petitioner was working as a clerk during the period from 20.08.1980 to 06.11.1982, for which charge memo was served on 08.08.1996. As the petitioner was not an officer of the bank at the relevant point of time, the UCO Bank Officers Disciplinary and Appeal Regulations, 1976 are not applicable to him, rather the petitioner’s service is to be regulated and conducted by Bipartite Settlements arrived at between the banks and their workmen. Thus, the authority has misconstrued itself by stating that the service regulation is applicable to the petitioner. 12. A further stand has been taken that under Clause-43 of the UCO Bank (Employees) Pension Regulations, 1995 (hereinafter called as “Regulations, 1995”) power has been vested on the authority concerned for withholding pension. But no reference with regard to such provision has at all been made by the authority concerned in the impugned order dated 15.11.2001 in Annexure-4. 12. A further stand has been taken that under Clause-43 of the UCO Bank (Employees) Pension Regulations, 1995 (hereinafter called as “Regulations, 1995”) power has been vested on the authority concerned for withholding pension. But no reference with regard to such provision has at all been made by the authority concerned in the impugned order dated 15.11.2001 in Annexure-4. As such, on perusal of order dated 15.11.2001 in Annexure-4, it is seen that totally a new stand has been taken while denying the gratuity admissible to the petitioner, stating that he had committed misconduct, which constitute moral turpitude, which was not the punishment imposed by the appellate authority in the modified order Annxure-3 dated 30.11.2000 in compliance of the order dated 29.08.2000 of this Court passed in OJC No. 9992 of 1999. 13. As per Clause-21 of the first Bipartite Settlements arrived at between the banks and their workmen on 19.10.1966, sub-clause (f) has been added in Clause 19.12 and in Clause-6 of Paragraph 521 of the Sastry Award, as applicable to the State Bank of India. The said sub-clause (f) states as follows: “(f) for a misconduct which occurred prior to the promotion of the employee to officers’ cadre, disciplinary action shall be in terms of the rules applicable to workmen employees.” In view of the above, the UCO Bank Officers Disciplinary and Appeal Regulations, 1976 are not applicable to the case of the petitioner, rather it is governed by the Bipartite Settlements and Awards governing the field, which fact has been taken into consideration by this Court while setting aside the order of the appellate authority and directing for reconsideration of the appeal. 14. In view of the aforesaid facts and circumstances, this Court is of the considered view that the impugned order in Annexure-4 dated 15.11.2001 denying the benefit of gratuity cannot sustain in the eye of law and the same is liable to be quashed. Accordingly, the same is hereby quashed and the opposite parties are directed to pay the superannuation benefits as would be due to the petitioner in conformity with the order dated 30.11.2000 in Annexure-3 read with the provisions contained in the Bipartite Settlements between the banks and their workmen as expeditiously as possible, preferably within a period of four months from the date of communication of this order. 15. With the above observation and direction, the writ petition stands disposed of. 15. With the above observation and direction, the writ petition stands disposed of. No order to cost.