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2018 DIGILAW 885 (HP)

H. P. State Co-operative Bank Ltd v. Naresh Kumar

2018-05-14

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant petition is directed, against, the impugned orders recorded, by the statutory authority concerned, while, exercising powers under the Payment of Gratuity Act, 1972. 2. Apparently, the exercise of statutory jurisdiction by the authority concerned vis-a-vis the respondents herein, who are, employed with the H.P. State Cooperative Bank Limited, does not yet render, the extant writ petition instituted by the employer, to be either mis-constituted, nor it is not maintainable here before, (I) given this Court, in a verdict rendered in a case titled as Sanjeev Kumar & Ors vs. State of H.P. & ors, reported in Latest HLJ 2014 (HP) 1061, verdict whereof, though, appertains, to non maintainability, of, writ petition(s), as, directed by employee(s), against the H.P. State Cooperative Bank, (ii) yet with a mandate being also encapsulated, in paragraph No.10 thereof, which stand extracted hereinafter, vis-a-vis orders rendered, by, any statutory authority, vis-a-vis any employee, of, any instrumentality or agency of the State, rather not debarring, the employer to rear agitation(s) in respect thereof, by its casting a writ petition, before this Court. Consequently, the instant petition, as, preferred by the employer, though, apparently an instrumentality or agency of the State, and, directed vis-a-vis an order made by the statutory authority, thereupon, the instant writ petition, is both properly constituted before this Court, and, also is maintainable here before. Paragraph No.10, of, the aforesaid judgment, reads as under:- “10. There would have been no dispute in case the orders impugned herein could be termed to have been passed by the statutory authority in exercise of powers conferred upon it by the Act and Rules, because in that event undisputedly the writ petition would be maintainable before this Court. However, the moot question again herein is as to whether the orders passed by the respondents i.e. Registrar and the State Government can be termed to be statutory orders.” 3. Nowat, it is also imperative, to adjudge, the merit worthiness, of the impugned rendition. Before proceeding, to determine the validity, of the impugned order, it is imperative to bear in mind, the hereinafter extracted apt portions, of Annexure P-5:- “Whereas Shri R.K. Minhas, Officer Gr-I, posted at Branch Office Nerchowk (hereinafter called delinquent official) was charge sheeted vide memo No. Estt/371/13592/2001 dated 13.4.01 and again vide memo No. Estt/377/34426/2001 dated 8.10.01 for Major misconduct. Before proceeding, to determine the validity, of the impugned order, it is imperative to bear in mind, the hereinafter extracted apt portions, of Annexure P-5:- “Whereas Shri R.K. Minhas, Officer Gr-I, posted at Branch Office Nerchowk (hereinafter called delinquent official) was charge sheeted vide memo No. Estt/371/13592/2001 dated 13.4.01 and again vide memo No. Estt/377/34426/2001 dated 8.10.01 for Major misconduct. Whereas, Shri R.K. Minhas denied all the charges framed against him and the Board of Directors of the Bank vide resolution No.52(2) dated 1.6.02 appointed Shri R.C. Kapil, Managing Direct Bank as Inquiry Officer to inquire into the charges framed against Shri R.K. Minhas. And whereas, the inquiry report submitted by the Inquiry Officer was placed before the Bord in its meeting held on 31.12.02. The Board of Directors carefully perused the chargesheet framed against the delinquent officer and the inquiry report submitted by the Inquiry Officer. After detailed discussion the Board concerned with the finding of the Inquiry Officer who had proved 8 charges of major misconduct against the said Shri R.K. Minhas out of 14 charges framed against him. Keeping in view the seriousness of the charges and the acts of major misconduct committed by the said Shri R.K. Minhas, the Board was of the view that Shri R.K. Minhas deserved the penalty of termination from service. But keeping in view the fact that the said Shri R.K. Minhas was retiring on supperannuation on 31st January, 2003, the Board passed the orders as under:- 1. Rs.78,905/- excess drawn by him as arrear of his pay fixation be recovered from the said Shri R.K. Minhas from his post retirement dues with interest @12% from the date of excess withdrawal to the date of payment but the time taken by the office to settle his post retirement dues after his superannuation should be deducted for the purpose of calculation of 12% interest. This amount is recoverable from him under Rule 73 of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rule, 1979. 2. One third (1/3rd) gratuity of the said Shri R.K. Minhas be withheld to compensate the loss caused/likely to be caused to the Bank by irregular sanction/release of Rs.2.00 lakh as house repair loan in favour of Smt. Indu Gupta, R/o Ratti, Nerchowk on 11.07.2001, till the same is fully repaid by the loanee. 2. One third (1/3rd) gratuity of the said Shri R.K. Minhas be withheld to compensate the loss caused/likely to be caused to the Bank by irregular sanction/release of Rs.2.00 lakh as house repair loan in favour of Smt. Indu Gupta, R/o Ratti, Nerchowk on 11.07.2001, till the same is fully repaid by the loanee. In case the loan is not fully repaid as per the terms of the loan on due date or the loan become NPA, the amount of gratuity withheld by adjusted to square/settle the loan. Though the penalty of termination of service has not been imposed on the said delinquent official yet for the purpose of withholding 1/3rd gratuity, it will be deemed as if penalty of termination from the service was imposed upon him. ” 4. The aforesaid extracted apt portion, of Annexure P-5, apparently, and, visibly makes echoings, of, upon culmination, of, disciplinary proceedings, drawn upon one R.K. Minhas, the delinquent official concerned, the apposite penalties, arising, from his proven misconduct, being hence imposed upon him. The aforesaid apposite order, borne in Annexure P-5, remains undisplayed, to beget its reversal, from, the apt Appellate authority concerned, thereupon, it acquires conclusivity. Despite conclusivity being hence enjoyed, by the apt order, borne in Annexure P-5, the statutory authority concerned, under Annexure P-8, rather proceeded to dwell upon besides delve into merits thereof, (i) besides proceeded to fathom the validity, of all penalties imposed, upon, one R.K. Minhas, the delinquent official, arising, from his committing, the proven misconducts, as embodied therein. The aforesaid, dwelling, upon the merit worthiness, of imposition of penalties, by the disciplinary authority, upon the delinquent official concerned, is per se hence beyond the domain, of, Section 4 of the Payment of Gratuity Act, 1972, especially vis-a-vis, the non obstante clause (6) occurring therein, (ii) wherein rather a empowerment is vested, in the apposite statutory authority, exercising, jurisdiction thereunder, to forfeit gratuity vis-a-vis the delinquent official, only, upon his service being terminated. However, hereat the services of the delinquent official, were not terminated, rather penaltyies, as, unfolded in Annexure P-5, were imposed upon the delinquent official, visibly for his proven misconduct. However, hereat the services of the delinquent official, were not terminated, rather penaltyies, as, unfolded in Annexure P-5, were imposed upon the delinquent official, visibly for his proven misconduct. Consequently, with the apposite non obstante clause, permitting, the statutory authority concerned, to, forfeit the apt accruable gratuity(ies) vis-a-vis any employee, only upon, his services being terminated, (iii) thereupon, with no mandate occurring therein, of it being also statutorily permissible, for the jurisdictionally empowered authority, to benumb, blunt or annul, the findings recorded by the competent disciplinary authority concerned, (iv) thereupon in the statutory authority concerned, hence rescinding Annexure P-5, and, its rather releasing sums, of, money vis-a-vis the contesting respondents, has, apparently transgressed the domain, of, Section 4 of the Payment of Gratuity Act. Even otherwise the aforesaid extracted apt statutory provision(s), specifically encompass there within, the apt exercisable jurisdiction by the authority concerned, hence with its defining, with, specificity the apt powers, of, forfeiting, of, gratuity vis-a-vis an employee, and, its not permitting, the statutory authority, to also, reverse the orders, made, by the apt disciplinary authority, (v) hence garners, an inference of the apt provisions specifically including there within, the apt powers of forfeiture, of, gratuity, and, also rather obviously specifically excluding, any, exercise, of, jurisdiction, for, begetting, any reversal, of, any order made by the competent disciplinary authority, (vi) thereupon express inclusion, and, express exclusion of apt jurisdiction(s) rather explicitly forbidding the authority concerned, to reverse, the order pronounced, by the competent disciplinary authority concerned. Consequently, Annexure P-6 and Annexure P-8 are quashed and set aside. 5. Be that as it may, for ensuring, the meteings, of, complete justice, to the contesting respondents, hence, if the apt hereinabove reproduced portion of Annexure P-5, are evidently nowat, meted their completest satisfaction or the apt amounts encapsulated, are, redeemed vis-a-vis, the appropriate authority, thereupon, the petitioner, is, directed to ensure, that the entire permissible gratuity is defrayed vis-a-vis the contesting respondents. The writ petition stands disposed of accordingly. All pending applications also stand disposed of.