Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 443 (GUJ)

Ratnabhai Kanabhai Tirgar v. Union Bank of India

2018-02-08

MOHINDER PAL

body2018
JUDGMENT : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of his compulsory retirement dated 24.9.2003 passed by respondent No.2 and has also challenged the order dated 22.12.2003 passed by the Appellate Authority rejecting his departmental appeal against the order of compulsory retirement. 2. Short facts of this case are, that punishment of compulsory retirement was imposed upon the petitioner by the respondent, on account of shortfall of Rs.5,000/- which was noticed in the accounts of the respondent-Bank. The loss was made good by the petitioner himself, although an inquiry was conducted and ultimately, petitioner was found guilty of gross negligence by embezzlement of Rs.5,000/-, which should have gone to the account of the Bank. Through the present petition, petitioner has challenged the order passed by the respondent vide which punishment of compulsory retirement has been imposed upon him, which has been further confirmed by the Appellate Authority. 3. Learned counsel for the petitioner has submitted that the punishment of compulsory retirement is very harsh punishment as the petitioner was found grossly negligent in his duty. According to him, the punishment is disproportionate to the act of the petitioner and it should be replaced by some lighter punishment. He has further argued that the respondent had illegally withholded the gratuity/provident fund amount, due to the petitioner, which was against the law laid down by the Apex Court in case of Gorakhpur University and others V/s. Dr.Shitla Prasad Nagendra & Others passed in Case No. Appeal (Civil) No.1874 of 1999, dated 7th August, 2001. 4. On the other hand, learned counsel representing the respondent-Bank has referred to the reply filed by the Bank and has submitted that the petitioner has raised loan from the Bank and which has been so far not yet realized by the Bank. Further, as the Provident Fund was duly adjusted towards the dues of the petitioner, the same could not be paid to him. Learned counsel for the respondent has relied upon the judgment of the Hon'ble Apex Court in the case of Diwan Singh V/s. Life Insurance Corporation of India and others reported in (2015) 2 SCC 341 . 5. Further, as the Provident Fund was duly adjusted towards the dues of the petitioner, the same could not be paid to him. Learned counsel for the respondent has relied upon the judgment of the Hon'ble Apex Court in the case of Diwan Singh V/s. Life Insurance Corporation of India and others reported in (2015) 2 SCC 341 . 5. Before proceeding further with this case, it will be necessary to point out that during the pendency of the proceedings in pursuance to the application filed by the petitioner for release of Provident Fund, interim order has been passed by this Court which is reproduced as under: Heard Mr. Joshi, learned advocate for the applicant, and Mr. R.K.Patel, learned advocate, for Mr. V.K.Patel, learned advocate for the opponent No.1. In view of subsequent developments which have been placed on record by way of reply affidavit and rejoinder affidavit, it has emerged that the application filed with the view to seek permission to withdraw provident fund is rejected by the bank. In that view of the matter, the petitioner will have to take out appropriate proceedings, if he so desires, to challenge the decision/order of the competent authority whereby his application for withdrawal of the provident fund is rejected. In that view of the matter, the subject matter of this application is rendered infructuous, inasmuch as by this application the applicant sought permission to place certain documents on record which relate to the petitioner's claim for provident fund. Mr. Joshi, learned advocate for the applicant, submitted that the applicant petitioner will take out appropriate proceedings to seek withdrawal of provident fund. Consequently, this application is disposed of as infructuous in light of subsequent developments. In view of the fact that the main petition, i.e. Special Civil Application No.8243 of 2004 is pending since about 13 years and having regard to the fact that in the said petition the petitioner has placed under challenge the order of compulsory retirement, Office is directed to list the petition in the cause list for final hearing on 19.6.2017. Present application accordingly stands disposed of. Rule is discharged. 6. Today, learned counsel for the petitioner has submitted that petitioner is aggrieved from the nonpayment of provident fund and interest, etc. thereon. This Court is of the opinion that this is altogether a separate cause of action which can be agitated by filing separate petition. Present application accordingly stands disposed of. Rule is discharged. 6. Today, learned counsel for the petitioner has submitted that petitioner is aggrieved from the nonpayment of provident fund and interest, etc. thereon. This Court is of the opinion that this is altogether a separate cause of action which can be agitated by filing separate petition. Otherwise, the main challenge of the petitioner was against the orders of termination by way of compulsory retirement and orders in appeal, subsequently passed. Petitioner was left with 8/9 years of service when this petition was filed. Had he remained in service, his date of superannuation was in the year 2011 and today we are in 2018. This Court is of the view that reliefs claimed by the petitioner by way of this petition has become infructuous with afflux of time. Otherwise also, the Bank is the competent authority to have decided for particular punishment which could have been imposed upon the petitioner. 7. The law laid down by the Apex court relied upon by the learned counsel for the petitioner in the case of Gorakhpur University and others (supra) may not be applicable in this case. However, on the other hand, judgment relied upon by the counsel for the respondent- Bank in the case of Diwan Singh (supra) is fully applicable in this case, where compulsory retirement on account of temporary embezzlement has been upheld. 8. Resultantly, this petition stands dismissed having been rendered infructuous. Rule is discharged.