Orissa High Court
Cuttack Central Co-Operative vs The Joint Labour Commissioner on 9 October, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.9496 of 2022
Cuttack Central Co-operative
Bank Ltd. ....... Petitioner
-Versus-
The Joint Labour Commissioner,
Bhubaneswar-cum-Appellate
Authority under Payment of
Gratuity Act, Odisha & others ....... Opp. Parties
For Petitioner : Mr. S.J. Mohanty,
Advocate
For Opp. Party Nos.1 to 3 : Mr. T.K. Biswal,
AGA
For Opp. Party Nos.4 : Mr. S. Das,
Advocate
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 16.07.2024 Date of Judgment: 09.10.2024
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S.K. Mishra, J.
1. This Writ Petition has been preferred by the Petitioner
Bank challenging the judgment and order dated 28.03.2022
passed by the Appellate Authority under Payment of Gratuity Act-
Cum-Joint Labour Commissioner, Bhubaneswar, shortly
W.P.(C) No.9496 of 2022 Page 1 of 37
hereinafter, ‘the Appellate Authority’, in P.G. Appeal Case No.09 of
2021, vide which the order dated 13.01.2020 passed by the
Controlling Authority under the Payment of Gratuity Act-Cum-
Divisional Labour Commissioner, Cuttack shortly hereinafter, ‘the
Controlling Authority’, in P.G. Case No.07 of 2018 was confirmed.
2. The brief facts of the case, as detailed in the Writ
Petition, is that the Petitioner Bank i.e. the Cuttack Central Co-
operative Bank, is a Society registered under the Odisha Co-
operative Societies Act, 1962, shortly hereinafter, ‘OCS Act, 1962’.
The Opposite Party No.4, since the date of his joining in the bank,
committed various irregularities so also misappropriated public
money, for which he was charge-sheeted so many times during his
service tenure. All the charges were also admitted by the Opposite
Party No.4 and after enquiry, punishment of warning not to
commit such mistake was given. However, before his
superannuation, Cuttack Vigilance PS Case No.43 dated
29.06.2011 was initiated against him for commission of offence
under Section 13(2) read with Section 13(1)(d) of Prevention of
Corruption Act, 1988 as well as under Sections 468/420/120-B of
Indian Penal Code, which is still pending against the Opposite
Party No.4 and others.
W.P.(C) No.9496 of 2022 Page 2 of 37
It is the case of the Petitioner that, while the Opposite
Party No.4 was working in Bari Branch, an Audit was conducted
and some irregularities were noticed. Accordingly, the Secretary of
the Petitioner Bank issued Memorandum of Charges against the
Petitioner vide Letter dated 31.01.2004 and sought for explanation
from the Opposite Party No.4. In his explanation the Opposite
Party No.4 admitted that he was forced to check the disbursement
statement by the then Branch Manager, which he has never
attached. However, after enquiry, he was reinstated in service
holding that the period of suspension is to be treated as such. Two
annual increments were disallowed without cumulative effect and
he was given a stern warning not to repeat the same in future.
While the matter stood thus, on verification of records
in the year 2008, the Area Officer, Jajpur again noticed some
irregularities and fraudulent transactions, while the Opposite
Party No.4 was working as an Accountant in Bari Branch, for
which explanation was sought for vide Letter dated 28.01.2008.
On enquiry the Petitioner Bank came to know that
while Opposite Party No.4 was in charge of Accountant in Bari
Branch, one Sunil Kumar Routray, Manager-cum-Cashier of the
Branch, connived with the Opposite Party No.4, misappropriated
the bank funds by tampering the records. The Petitioner was
W.P.(C) No.9496 of 2022 Page 3 of 37
asked to show cause vide letter dated 18.10.2008. Subsequently,
in the year 2011, on an inquiry made by the Vigilance Authority, a
vigilance case was initiated against the Opposite Party No.4 and
others for commission of offence under Section13(2) read with
Section 13(1)(d) of Prevention of Corruption Act, 1988 as well as
under Sections 468/420/120-B of Indian Penal Code. The
Petitioner was intimated by the Superintendent of Police, Vigilance
vide letter dated 02.07.2011 for taking appropriate action against
the Opposite Party No.4 and others.
It is also case of the Petitioner that the Opposite Party
No.4, while working as Assistant Manager-I, was superannuated
from service w.e.f. 28.02.2013. As the Vigilance Case had already
been initiated much before his retirement and documents were
seized by the Vigilance Authority, no proceedings were initiated by
the Petitioner Bank against the Opposite Party No.4 before his
retirement. As the gratuity amount was with the Petitioner Bank,
it did not release the same in favour of the Opposite Party No.4.
Hence, the Opposite Party No.4 approached the Controlling
Authority (O.P.2) claiming Rs.6,17,513/- towards gratuity and
interest. As the Petitioner could not appear before the Controlling
Authority, despite issuance of notice due to some unavoidable
circumstances, an ex-parte judgment was passed on 13.01.2020
W.P.(C) No.9496 of 2022 Page 4 of 37
directing the Petitioner Bank to deposit Rs.9,79,054/- within 30
days from the date of pronouncement of the judgment, which
came to the knowledge of the Petitioner after the initiation of the
certificate proceeding against it before the Sub-Collector, Cuttack,
Sadar. However, the period of limitation to challenge the said
order before the Appellate Authority had elapsed by then. Thus,
the Petitioner challenged the ex-parte judgment so also certificate
proceeding before this Court. The Writ Petition stood disposed of
vide order dated 01.03.2021 directing the Petitioner Bank to file
an Appeal along with a petition for condonation of delay within 10
days. Accordingly, the Petitioner preferred an Appeal before the
Appellate Authority (O.P.1) which was registered as P.G. Appeal
Case No.09 of 2021. The Opposite Party No.1, after hearing,
confirmed the order passed by Controlling Authority vide
judgment and order dated 28.03.2022 directing the Petitioner to
deposit a sum of Rs.9,79,054/- towards gratuity along with
interest. Hence, this Writ Petition.
3. Only the confirming order passed by the Appellate
Authority has been challenged in this Writ Petition basically on
the following grounds;
i) The Appellate Authority has not applied his
judicious mind to access the documents
W.P.(C) No.9496 of 2022 Page 5 of 37
pertaining to recovery filed by the Petitioner Bank
so also the fact regarding pendency of vigilance
case against the Opposite Party No.4 for
misappropriation of bank money.
ii) The Appellate Authority should have borne in
mind that the Petitioner Bank was set ex-parte by
the Controlling Authority, for which it was
neither able to file the documents in respect of
damages caused by the Opposite Party No.4 nor
got chance to lead rebuttal evidence.
iii) As per sub-section 6(a) of Section 4 of the P.G.
Act, the Authority can wholly or partly forfeit the
claim of the applicant towards gratuity, if the
delinquent employee makes any damage or loss
to the organization while in service. As the
Opposite Party No.4 was involved in
misappropriation of money of the Petitioner Bank,
the departmental inquiry was pending against
him at the time of his superannuation. As the
Opposite Party No.4 was held responsible for
financial irregularity, his gratuity was forfeited by
a written order passed by the Management. Thus,
W.P.(C) No.9496 of 2022 Page 6 of 37
there is no irregularity or illegality on the part of
the Petitioner to withhold the gratuity of the
Opposite Party No.4.
4. Though it is a Writ of Certiorari and no Counter is
necessary, the Opposite Party No.4 has filed a Counter Affidavit
disputing the facts so also opposing to the prayer of the Petitioner
stating therein that he was working under the Petitioner Bank
w.e.f. 11.03.1981 till 28.02.2013 on which date he was
superannuated from service while working in Bari Branch of
Petitioner Bank as Assistant Manager. The total qualifying period
of service was 33 years and his last drawn salary was
Rs.29,940/-. After his retirement from service, though he
requested the Petitioner Bank for payment of gratuity of
Rs.6,17,513/-, the same was not paid to him. Because of non-
payment of gratuity so also interest for the delayed payment, he
had approached the Controlling Authority vide P.G. Case No.07 of
2018. The Controlling Authority, after analyzing several
pronouncements of the Supreme Court and taking into
consideration the facts on record, allowed the claim of the
Opposite Party No.4 vide order dated 13.01.2020 directing to
deposit an amount of Rs.9,75,054/- in his favour, which includes
interest, within the period of 30 days, failing which it was ordered
W.P.(C) No.9496 of 2022 Page 7 of 37
to pay simple interest @ 10% per annum over and above the said
awarded amount. Being aggrieved by the said order, the Petitioner
Bank preferred Appeal No.09 of 2021 before the Appellate
Authority. The Appellate Authority, vide order dated 28.03.2022
confirmed the order of the Controlling Authority and directed the
Petitioner Bank to pay the gratuity along with admissible interest
to the Opposite Party No.4 in terms of the provisions made under
the Orissa Payment of Gratuity Rules, 1974, shortly hereinafter,
“the Rules, 1974”. It has further been stated in the Counter that
the Petitioner Bank deliberately withheld the gratuity of the
Opposite Party No.4 without any authority, after allowing him to
retire from service on superannuation.
It has also been stated that as per Section 7(3A) read
with the Central Government Notification dated 01.10.1987, he is
entitled to 10% simple interest for the delayed period. Therefore,
the order of imposition of interest in terms of section 7(3A) under
the Act, 1972 is justified and the Writ Petition is liable to be
dismissed.
5. In response to the Counter filed by the Opposite Party
No.4, the Petitioner Bank has filed a Rejoinder stating therein that
the Opposite Party No.4, while in service, caused a huge financial
loss to the Bank by several acts of omissions and commissions, for
W.P.(C) No.9496 of 2022 Page 8 of 37
which Surcharge Proceeding No.20 of 2008 was initiated against
him, which is still pending.
Apart from reiterating the facts of initiation of vigilance
case, it has further been stated that as the Opposite Party No.4
was fully aware that the amount misappropriated is more than the
gratuity amount, he never submitted any application for releasing
the gratuity. Instead, though the Opposite Party No.4 was
superannuated from service in the year 2013, approached the
Controlling Authority after the delay of more than five years in the
year 2018.
6. Learned Counsel for the Petitioner, relying on the
judgment of Punjab & Haryana High Court in Punjab and Sind
Bank Vs. Labour Commissioner and others reported in (2008) 2
LLJ 841 P&H, judgment of the Supreme Court in Chairman-Cum-
Managing Director, Mahanadi Coalfields Vs. Rabindranath
Choubey reported in (2020) 18 SCC 71 so also judgment of this
Court in State of Odisha and another Vs. Joseph Barik and
others passed in W.A. No.805 of 2021 and batch, submitted that
the Petitioner Bank has a right to withhold the gratuity of the
Opposite Party No.4, as vigilance case bearing PS Case No.43
dated 29.06.2011 for misappropriation of bank fund of
Rs.1,76,271/- is still pending against the Opposite Party No.4.
W.P.(C) No.9496 of 2022 Page 9 of 37
That apart, Surcharge Proceeding is still pending against the
Opposite Party No.4 in terms of provisions under the OCS Act,
1962.
Learned Counsel for the Petitioner Bank further
submitted that the Petitioner Bank, though was duly noticed by
the Controlling Authority, could not participate in the said
proceeding due to official dislocation, for which it was set ex-parte.
Taking advantage of such non-appearance, the Opposite Party
No.4 suppressed the fact regarding pendency of vigilance case
against him before the Vigilance Court, Cuttack. Though the said
fact was brought to the notice of the Appellate Authority in P.G.
Appeal Case No.09 of 2021, while passing the impugned order of
confirmation, it did not take note of the said admitted fact and
also misread the judgment of the Supreme Court in
Rabindranath Choubey (supra) and erroneously passed the
impugned order with an observation that the Petitioner Bank has
deliberately withheld the gratuity of the Opposite Party No.4
without any authority of law, after allowing him to retire on
superannuation.
7. Per contra, learned Counsel for the Opposite Party
No.4 submitted that the employees of the Petitioner Bank are
governed under the Staff Service Rules, 2011 of Central
W.P.(C) No.9496 of 2022 Page 10 of 37
Cooperative Banks. Thus, OCS (CC & A) Rules, 1962 so also
Orissa Civil Services (Pension) Rules, 1992 are not applicable to
the employees of the Petitioner Bank. Further, as per Rule 50 of
the Staff Service Rules, 2011, the Opposite Party No.4 is entitled
for gratuity as per the provisions under the Act, 1972, read with
the Rules, 1974.
Learned Counsel for the Opposite Party No.4 further
submitted that, in terms of the provisions under Section 4(6) of
Payment of Gratuity Act, 1972, the Employer is only entitled to
forfeit gratuity of an employee partially or wholly, whose service
has been terminated. Since the Opposite Party No.4 was allowed
to retire from service on attaining the age of superannuation on
28.02.2013, the Petitioner Bank has no authority under law to
withhold or forfeit the gratuity of his client. Further, there is no
such specific provision in the Staff Service Rules, 2011, applicable
to the employees of the Petitioner Bank, for initiation or
continuation of any disciplinary proceeding against an employee
after his retirement. Thus, as per the settled position of law, in the
absence of any specific provision to the said effect, the plea of the
Petitioner to forfeit the gratuity because of pendency of purported
vigilance case so also surcharge proceeding against the Opposite
Party No.4 is untenable.
W.P.(C) No.9496 of 2022 Page 11 of 37
That apart, the Petitioner Bank failed to substantiate
before the Appellate Authority so also before this Court as to
pendency of any departmental proceeding against his client. Even
if any proceeding was allegedly pending as on 28.02.2013, the
same is beyond the knowledge of his client. Apart from the same,
there is no such service rule of the bank for continuance of
disciplinary proceeding after allowing an employee to retire on
attaining the age of superannuation.
8. Further, drawing attention of this Court to the
judgment of this Court reported in 2022 (III) ILR-CUT-639, learned
Counsel for the Opposite Party No.4 submitted that his client is
entitled for 10% simple interest per annum on the gratuity
amount from the date of his superannuation till the date of actual
payment. Though the period from 01.03.2013 till 13.01.2020 is
six years ten months twelve days, but the Controlling Authority
(O.P.2) has wrongly calculated interest from 01.03.2013 till
13.01.2020 i.e. the date of judgment, to be five years ten months
twelve days in P.G. Case No.7 of 2018, which has been
subsequently confirmed by the Appellate Authority (O.P.1) in P.G.
Appeal Case No.9 of 2021.
Mr. Das, learned Counsel for the Opposite Party No.4
further submitted that admittedly the Opposite Party No.4 was
W.P.(C) No.9496 of 2022 Page 12 of 37
allowed to retire from service on attaining the age of
superannuation. There is no such provision either under the H.R.
Policy of Central Cooperative Banks incorporating Staff Service
Rules, 2011 applicable to the employees of Petitioner Bank or in
the Act, 1972 for withholding Gratuity on account of pendency of
vigilance case, departmental proceeding or surcharge proceeding
against an employee of the Petitioner Bank after allowing the
concerned employee to retire from service on superannuation.
Mr. Das submitted that the Petitioner Bank is not
remediless. It can always take recourse to filing of dispute case
under Section 68 of OCS Act, 1962, followed by execution
proceeding under Section 103 of OCS Act, 1962 for realization of
the alleged recoveries, if any.
It was further submitted that after retirement, though
the Opposite Party No.4 has specifically represented to the Chief
Executive Office/Secretary of the Petitioner Bank on various dates
in between 2015 to 2020 for release of gratuity and retirement
benefits, no communication was ever made to his client rejecting
the said representations. No information was ever given to his
client for forfeiture or adjustment or withholding the gratuity.
9. Learned Counsel for the Opposite Party No.4 submitted
that as the Petitioner Bank failed to appear on the date fixed,
W.P.(C) No.9496 of 2022 Page 13 of 37
despite service of notice, in terms of Rule 11(5) of the Rules, 1974,
the Controlling Authority passed an ex-parte order after hearing
the Opposite Party No.4. Since no sufficient reason was assigned
by the Petitioner Bank before the Controlling Authority within 30
days of the ex-parte order, the Petitioner Bank is estopped to raise
the self-same issue.
10. To substantiate his submissions, learned Counsel for
the Opposite Party No.4 relied on the judgments of this Court in
Senior Branch Manager, NSIC Ltd. & another Vs. Deputy
Chief Labour Commissioner (Central), reported in 2024 (I) ILR
CUT 1421, Sharat Chandra Lenka Vs. Orissa State
Warehousing Corporation & another, passed in W.P.(C)
No.24276 of 2014, Pratap Kishore Dash Vs. High Court of
Orissa and others, reported in 109 (2010) CLT 12, MD OSIC Vs.
Abhaya Kumar Samantray, reported in 2022 (III) ILR CUT 639
so also judgment of the Supreme Court in Bhagirathi Jena Vs.
Board of Directors, O.S.F.C., reported in (1999) 3 SCC 666,
Calcutta Dock Labour Board and another Vs. Smt. Sandhya
Mitra and others, reported in (1985) 2 SCC 1, H. Gangahanume
Gowda Vs. Karnataka Agro Industries Corp. Ltd., reported in
(2003) 3 SCC 40. He also relied on the judgment of Bombay High
Court in Rajinder Kumar Nangia Vs. Rashtriya Chemicals &
W.P.(C) No.9496 of 2022 Page 14 of 37
Fertilizers Ltd., passed in W.P. No.38 of 1995 so also judgment
of Keral High Court in E-Team Informatica India (P) Ltd. Vs.
Mathew M. Gerorge and others, passed in W.P.(C) No.9642 of
2018.
11. On perusal of the order dated 13.01.2020, passed by
the Controlling Authority, it is found that the Petitioner Bank
(Opposite Party in P.G. Case No.07 of 2018), being noticed, did not
appear on 14.01.2019. Hence, it was set ex-parte on the very
same day. Delay was condoned on an application being filed by
the Opposite Party No.4. All the four Issues were answered in
favour of the Opposite Party No.4. However, while answering Issue
No.4, as to what should be the quantum of gratuity payable to the
Opposite Party No.4, it was held that he is entitled for gratuity of
Rs.6,17,513/- so also interest @ 10% on the said amount from the
date it became due till the date of payment. While ordering so, the
Controlling Authority relied on several judgments of the Supreme
Court so also judgment of Allahabad High Court as well as this
Court.
12. From the pleadings and documents on record so also
arguments advanced by the learned Counsel for the parties, it is
amply clear that despite issuance of notice to the Petitioner Bank,
it chose not to appear before the Controlling Authority, as a result
W.P.(C) No.9496 of 2022 Page 15 of 37
of which an ex-parte judgment was passed on 13.01.2020
directing the Petitioner Bank to deposit an amount of
Rs.9,79,054/- within a period of 30 days from the date of
pronouncement of the judgment. Thereafter, the Petitioner Bank,
instead of preferring an Appeal, as provided under section 7(7) of
the Act, 1972, directly approached this Court in W.P.(C) No.7283
of 2021, which was disposed of on 01.03.2021 giving liberty to the
Petitioner Bank to prefer an Appeal.
13. Liberty being granted, the Petitioner Bank preferred
Appeal No.9 of 2021 basically on the grounds that one vigilance
case bearing Cuttack Vigilance P.S. Case No.43 dated 29.06.2011
is pending against the Opposite Party No.4 for misappropriation of
bank fund of Rs.1,76,271/- before the Vigilance Court, Cuttack.
That apart, allegation of misappropriation of Rs.60,370/- in terms
of Special Audit Report so also Rs.35,000/- from SBD Account is
lying against him. The Petitioner Bank remained silent because of
pendency of the said vigilance case. The Opposite Party No.4 did
not pursue before the Authorities for speedy disposal of the said
proceedings, which are still pending for disposal. Though notice
given by the Controlling Authority was duly served on the
Petitioner Bank directing it to appear on 14.01.2019, due to
illness of the Law Officer, adequate steps could not be taken by
W.P.(C) No.9496 of 2022 Page 16 of 37
the Petitioner Bank towards filing of Objection before the
Controlling Authority. As a result, the said Application was
decided ex-parte vide order dated 13.01.2020 directing the
Petitioner Bank to deposit Rs.9,79,054/- within 30 days from the
date of pronouncement of the said judgment.
A further ground was urged in the Appeal that there
was sufficient cause to held up the gratuity so also retiral benefits
of the Opposite Party No.4 because of the aforesaid reasons and
the said facts could not be brought to the notice of the Controlling
Authority. That apart, a ground was also taken before the
Appellate Authority that in view of the provisions under Clause-
6(a) of Section 4 of the Act, 1972, the Petitioner/Appellant Bank
stopped payment of gratuity to the Opposite Party No.4
(Respondent before the Court below) after his retirement because
of pendency of the said proceedings against him.
Relying on the judgment of the Supreme Court in
Rabindranath Choubey (supra) it was stated that in view of the
said judgment, the gratuity amount as well as retirement benefits
were rightly held up till finalization of the proceeding pending
against the Opposite Party No.4.
14. As it reveals from the impugned order dated
28.03.2022 passed by the Appellate Authority, taking into
W.P.(C) No.9496 of 2022 Page 17 of 37
consideration the said grounds urged in the Memorandum of
Appeal, it was held as follows:-
“5. xxxx xxxx xxxx
On perusal of the judgment passed by the learned
Controlling Authority, it appears that the issues were
framed and the said issues have been answered by the
learned Controlling Authority in affirmative in favour of the
respondent No.1. So far the relevant service rules of
the bank, it is crystal clear that the employees of
Cuttack Central Cooperative Bank Ltd., are entitled
to gratuity as per the provision of Payment of
Gratuity Act, 1972 read with Orissa Payment of
Gratuity Rules, 1974.
The rules of the Bank clearly speaks as
follows:-
“Every employee of the Bank shall be entitled
to payment of gratuity as per the provisions of the
Payment of Gratuity Act, 1972 read with the Orissa
Payment of Gratuity Rule, 1974.”
In so far as Sec. 4(6)(b) of the Payment of Gratuity
Act, 1972 is concerned, the same read as follows;
(b) The gratuity payable to an employee (may be
wholly or partially forfeited)-
(i) If the services of such employee have been
terminated for his riotous or disorderly conduct or any
other act of violence on his part or
(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 by him in the course of his employment.
6. On perusal of the “Staff Service Rule, as well as
Sec.4(6)(b) of the Payment of Gratuity Act, 1972, it is made
clear that if the service of an employee have been
terminated for any act which constitute an offence
involving moral turpitude that the Authority is empowered
to withheld the gratuity wholly or partly. But in the
present case, the respondent No.1 has not been
terminated rather he was allowed to retire by the
appellant bank on attaining the age of
superannuation w.e.f. 28.02.2013. Neither in the
W.P.(C) No.9496 of 2022 Page 18 of 37
Staff Service Rule nor in the Payment of Gratuity
Act, there is any provision for withholding of
gratuity merely on pendency of a criminal case or
departmental proceeding against the employee who
has been allowed to retire on superannuation by the
employer.
Since, in the present case at hand, the respondent
No.1 has been allowed to retire on superannuation w.e.f.
28.02.2013 as per the order passed by the appellant bank
and all his retirement dues along with gratuity has not
been paid to him. But withholding his gratuity after
his superannuation is not tenable since the gratuity
amount of the respondent No.1 is protected under
Article 300(A) of the Constitution of India as the
Hon’ble Apex Court has termed the gratuity amount
of an employee as property.
xxxx xxxx xxxx
After going through the relevant service rules as
well as argument advanced by the advocate for the
respective parties as well as stand taken in the appeal, it
is made clear that withholding of gratuity on
account of merely pendency of vigilance case
against the respondent No.1 is contrary to the
provisions of Staff Service Rules read with Sec.4(6)(b)
of the Payment of Gratuity Act, 1972 and it is made
clear that the argument canvassed by the learned
advocate for the appellant has no force at all.
8. Mr. P.K. Rout argued that in the recent decisions of
the Hon’ble Apex Court in the case of “Chairman-cum-
Managing Director, Mahanadi Coal Field Ltd. Vrs.
Rabindranath Choubey : AIR 2020 SC 2978”, the
respondent No.1 is not entitled for gratuity.
On perusal of the said judgment of the Hon’ble
Apex Court, it is crystal clear that the fact of the
said case is not identical to the present one. In that
case, a departmental proceeding is pending against
the employee of the MCL as per CDA Rules, 1978 and
as per the relevant Service Rules i.e., Rules, 34.3 of
the CDA Rules, 1978 in which there was a provision
for “withholding of gratuity during pendency of
disciplinary proceeding”. But in the present case no
such provision is there under the Staff Service Rules
for withholding of gratuity amount of a retire
W.P.(C) No.9496 of 2022 Page 19 of 37
employee on account of pendency of criminal case.
As such, the fact of that case is totally a different
one from the present case at hand.
xxxx xxxx xxxx
On perusal of record as well as impugned order it is
found that since the appellant bank has deliberately
withheld the gratuity of the respondent No.1 without any
authority of law after allowing the respondent No.1 to
retire on superannuation, the order of imposition of
interest as per Sec. 7(3A) of the Payment of Gratuity Act is
justified in the present situation.
10. Considering the argument advanced by the
respective parties as well as on perusal of the documents
filed and going through the arguments filed by the
respective parties, it is crystal clear that the
respondent No.1 has been allowed to retire on
superannuation w.e.f. 28.02.2013 by the appellant
bank and since there is no such provision under the
Staff Service Rules, read with Payment of Gratuity
Act, 1972 for withholding of gratuity on account of
pendency of a vigilance case departmental
proceeding after superannuation of the employee of
the Cuttack Central Cooperative Bank Ltd., this
court came to a conclusion that the learned
Controlling Authority has not committed any error
while passing the order dt. 13-1-2020 in P.G. case
No.07 of 2018 and directing the appellant bank to pay
the gratuity along with admissible interest to the
respondent No.1 as per provisions of the Orissa Payment
of Gratuity Rules, 1974. Hence, the present appeal is
dismissed being devoid of merit.”
(Emphasis supplied)
15. Admittedly, the Opposite Party No.4, while working as
Assistant Manager in Bari Branch of the Petitioner Bank, was
superannuated from service w.e.f. 28.02.2013. Since the Petitioner
Bank did not pay the amount of gratuity along with interest, the
Opposite Party No.4 approached the Controlling Authority vide
W.P.(C) No.9496 of 2022 Page 20 of 37
P.G. Case No.07 of 2018. Despite notice, the Petitioner Bank did
not appear before the Controlling Authority. However, because of
the facts detailed above, liberty being granted by this Court, it
approached the Appellate Authority in P.G. Appeal Case No.9 of
2021, taking a plea of not taking any disciplinary action against
the Opposite Party No.4 on the ground of pendency of vigilance
case so also surcharge proceeding so also its right to withhold
gratuity and other after retiral benefits of the Opposite Party No.4
on the said ground.
As held by the Supreme Court in Rabindranath
Choubey (supra), relied upon by the learned Counsel for the
Petitioner Bank, the employer has a right to continue with the
departmental proceeding even after retirement of an employee, if
the service rules of the employer provides so and impose the
punishment, including the punishment of dismissal, if the
employee is found guilty.
It was further held by the Supreme Court in the said
case that in view of the specific service rules of the employer in the
said case to withhold gratuity during pendency of departmental as
well as criminal proceeding against an employee, it was justified to
do so. However, so far as the Petitioner Bank is concerned,
admittedly, there is no such service rule with regard to initiation
W.P.(C) No.9496 of 2022 Page 21 of 37
or continuance of departmental proceeding or withholding or
forfeiting the gratuity. Rather, the service rules of the Petitioner
Bank provides as to applicability of the Act, 1972 so far as
payment of gratuity to its employees.
Sub-section (3A) of Section 7 of the Act, 1972 permits
the employer to withhold the gratuity of a retired employee,
subject to seeking permission from the Controlling Authority to do
so, failing which the employer is liable to pay interest.
Similarly, as provided under sub-section (6) (b) of the
Act, 1972, gratuity payable to an employee can be wholly or
partially forfeited, if the services of such employee have been
terminated for his riotous or disorderly conduct or any other act of
violence on his part; or, 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 by him
in course of his employment.
Admittedly, though this Court granted liberty to the
Petitioner Bank to prefer an appeal before the Appellate Authority
under Section 7(7) of the Act, 1972, the Petitioner Bank failed to
demonstrate before the Appellate Authority that the service rules
of the employer entitles it to withheld the gratuity of an employee
after his retirement. It also failed to demonstrate before the
W.P.(C) No.9496 of 2022 Page 22 of 37
Appellate Authority regarding the fact of initiation of any
disciplinary proceeding and continuance of the same after his
retirement. That apart, it also failed to demonstrate before the
Appellate Authority regarding any communication made to the
Opposite Party No.4 indicating therein as to its intention to
withheld or forfeit the gratuity earned by the Opposite Party No.4-
Employee. Rather, it chose to remain silent on the plea of
pendency of vigilance case so also surcharge proceeding against
the Opposite Party No.4.
16. This Court in a recent judgment in The Sr. Branch
Manager, the National Small Industries Corporation Ltd.
(supra), taking note of various provisions under the Act, 1972 so
also Rules, 1972 and various judgments of the Supreme Court
held as follows:
“42. On examination of the various legal provisions
under the Act, 1972 and Rules made thereunder so also
the Judgments cited by the learned Counsel for the
parties, as detailed above, this Court is of the following
views:
a) As prescribed under section 4(1) of the Act,
1972, gratuity shall be payable to an employee on
the termination of his employment after he has
rendered continuous service for not less than five
years on his superannuation or on his retirement or
resignation or on his death or disablement due to
accident or disease. However, completion of
continuous service of five years shall not be
necessary where the termination of the employment
of any employee is due to death or disablement.
W.P.(C) No.9496 of 2022 Page 23 of 37
b) In terms of section 7(1) of the Act, 1972 read
with rule 7(1) & (6) of the Rules, 1972, a person,
who is eligible for payment of gratuity under the
said Act, 1972 or any person authorized, in writing,
to act on his behalf, shall send a written application
to the Employer in Form ‘I’ ordinarily within thirty
days from the date the gratuity became payable,
either by personal service or by registered post
acknowledgement due.
c) As provided under rule 7 (1) of the Rules,
1972, where the date of superannuation or
retirement of an employee is known, the employee
may apply to the Employer before thirty days of the
date of superannuation or retirement for payment of
gratuity.
d) Rule 7(5) of the Rules, 1972 provides that an
application for payment of gratuity filed after the
expiry of the periods specified in rule 7(1) of the
Rules, 1972 shall also be entertained by the
Employer, if the applicant adduces sufficient cause
for the delay in preferring his claim.
e) As provided under rule 7(5) of the Rules,
1972, no claim for the gratuity under the Act,
1972 shall be invalid merely because the
claimant has failed to present his application
within the specified period.
f) In terms of Rule-8(1) under Rules, 1972,
within fifteen days of the receipt of an application
under rule 7 for payment of gratuity, the Employer
shall, if the claim is found admissible on
verification, issue a notice in Form ‘L’ to the
applicant employee, nominee or legal heir, as the
case may be, specifying the amount of gratuity
payable and fixing a date, not being later than the
thirtieth day after the date of receipt of the
application, for payment thereof.
g) As provided under rule 8(1) (ii) of the Rules,
1972, if the claim for gratuity is not found
admissible, the Employer is to issue a notice in
Form ‘M’ to the applicant employee, nominee orW.P.(C) No.9496 of 2022 Page 24 of 37
legal heir, as the case may be, specifying the
reasons as to why the claim for gratuity is not
considered admissible. In either case, where the
gratuity claimed is admissible or inadmissible, a
copy of the notice in Form ‘L’ or ‘M’ given to the
applicant shall be endorsed to the Controlling
Authority.
h) An Employer cannot simply issue notice in
Form-M to the employee rejecting claim for payment
of gratuity. If the Employer so desires to forfeit the
gratuity, a Show Cause Notice has to be given,
because the gratuity amount to which the Employee
is otherwise entitled is to be forfeited, which is a
drastic consequence for the Employee concerned.
i) As provided under rule 10(1)(iii) of the Rules,
1972, if pursuant to the application filed in terms of
rule 7 of Rules, 1972 a notice is given under rule
8(1) either specifying an amount of gratuity which is
considered by the application less than what is
payable or rejecting his/her eligibility for payment
of gratuity or the Employer fails to issue any notice
as required under rule 8 within the time specified
therein, the claimant employee, nominee or legal
heir, as the case may be, may, within ninety days
of the occurrence of the cause for the application,
apply in Form ‘N’ to the Controlling Authority for
issuing a direction under section 7(4) of the Act,
1972 with as many extra copies as are the opposite
parties.
j) In view of the provisions enshrined
under section 7(2) of the Act, 1972, as soon as
gratuity becomes payable, the Employer shall,
whether an application referred to in sub-
section (1) has been made or not, determine
the amount of gratuity and give notice in
writing to the person to whom the gratuity is
payable and also the Controlling Authority,
specifying the amount of gratuity so
determined.
k) As prescribed under section 7(3) of the Act,
1972, the Employer shall arrange to pay the
W.P.(C) No.9496 of 2022 Page 25 of 37
amount of gratuity, within thirty days from the date
it becomes payable to the person to whom the
gratuity is payable.
l) In terms of section 7(3-A) of the Act,
1972, if the amount of gratuity payable under
sub-section (3) is not paid by the Employer
within the period specified in sub-section (3),
the Employer shall pay, from the date on
which the gratuity becomes payable to the
date on which it is paid, simple interest at
such rate, not exceeding the rate notified by
the Central Government from time to time for
repayment of long-term deposits, as that
Government may, by notification specify (As
per the notification dated 10.10.1987 issued
by the Central Government, in exercise of
powers conferred under sub-section (3-A) of
section 7 of the P.G. Act, 1972, 10% interest is
payable).
m) In view of the proviso under section 7(3-A) of
the Act, 1972, no such interest is payable if the
delay in the payment is due to the fault of the
employee and the Employer has obtained
permission in writing from the Controlling Authority
for the delayed payment on the said ground.
n) As prescribed under section 7(4)(a) of the Act,
1972, if there is any dispute as to the amount of
gratuity payable to an employee under the said Act
or as to the admissibility of any claim of, or in
relation to, an employee for payment of gratuity, or
as to the person entitled to receive the gratuity, the
Employer shall deposit with the Controlling
Authority such amount as he admits to be payable
by him as gratuity.
o) Where there is a dispute with regard to any
matter or matters specified in clause (a), the
Employer or employee or any other person raising
the dispute may make an application to the
Controlling Authority for deciding the dispute, in
terms of section 7(4)(b) of the Act, 1972.
W.P.(C) No.9496 of 2022 Page 26 of 37
p) As provided under section 7(4)(c) of the Act,
1972, the Controlling Authority shall, after due
inquiry and after giving the parties to the dispute a
reasonable opportunity of being heard, determine
the matter or matters in dispute and if, as a result
of such inquiry any amount is found to be payable
to the employee, the Controlling Authority shall
direct the Employer to pay such amount or, as the
case may be, such amount as reduced by the
amount already deposited by the Employer.
q) As provided in sub-section (6) of section 4
of the Act, 1972, the gratuity of an employee,
whose services have been terminated for any
act, wilful omission or negligence causing any
damage or loss to, or destruction of, property
belonging to the Employer, shall be forfeited to
the extent of the damage or loss so caused.
r) As per the settled position of law, as
detailed above, before forfeiting the gratuity of
an employee in terms of clause (1) of sub-
section 6 of section 4 of the Act, 1972, any
damage or loss to, or destruction of, property
belonging to the Employer has to be quantified
by the Employer.
s) Similarly, as prescribed in clause (b) of sub-
section 6 of section 4 of the Act, 1972, the gratuity
payable to an employee may be wholly or partially
forfeited, if the services of such employee have been
terminated for his riotous or disorderly conduct or
any other act of violence on his part, or 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 by him in
course of his employment.
t) As held by the apex Court in Union Bank of
India (supra), under sub-section (6)(b)(ii) of section
4 of the Act, forfeiture of gratuity is permissible if
the termination of an employee is for any
misconduct which constitutes an offence
involving moral turpitude, and the employee
W.P.(C) No.9496 of 2022 Page 27 of 37
concerned is convicted accordingly by a Court
of competent jurisdiction. It is not for the
Employer to decide whether the offence has
been committed amounting to involving moral
turpitude.
u) As held in Rabindranath Choubey (supra), if
departmental proceeding has been initiated against
an employee before his retirement, if the service
rules of the Employer provide so, the departmental
proceeding can continue even after retirement of an
employee and if the employee is found guilty, minor
or major punishment, including the punishment of
dismissal can be imposed by the Employer, even
the employee has retired.
v) As was further held by the apex Court in
Rabindranath Choubey (supra), the enquiry
proceeding has to be concluded first on merit
and after passing appropriate order in
accordance with law, thereafter necessary
consequences as per section 4 of the Act,
1972, more particularly sub-section (6) of
section-4 of the Act, 1972 and the Rules of the
Employer shall to follow. The recovery, as
provided under section-4(6) of the Act, 1972, is
in addition to a punishment that can be
imposed on an employee after his
superannuation.”
(Emphasis Supplied)
17. A coordinate Bench of this Court in Sharat Chandra
Lenka (supra) held as follows:
“27. Since the petitioner has not been terminated
from service but has been superannuated, Section
4(6)(a)(b) of the Act is not applicable against him for
the recovery of the loss from his gratuity. On the
whole, withholding of his entitlement to the
gratuity, CPF and unutilized leave salary as
detailed in Annexure-1 being de hors to the
provisions of law is liable to be quashed. At the same
time, the order of recovery of Rs.11,71,840/- being alsoW.P.(C) No.9496 of 2022 Page 28 of 37
contrary to the provisions of the Act and the Regulation of
the Corporation as discussed hereinabove are also liable
to be quashed. On the whole, the Office Order vide
Annexure-1 being illegal, invalid is hereby quashed and
opposite party Nos.1 and 2 are directed to pay all the
retiral benefits to the petitioner within a period of two
months failing which the opposite party Nos.1 and 2 shall
pay such amount with 6% simple interest per annum from
the date of superannuation till the date of payment.
In the result, the writ petition is allowed”.
(Emphasis supplied)
18. The High Court of Bombay in Rajinder Kumar
Nangia (supra) held as follows:
“4. It would be seen that Sub-section (1) of Section 4 of the
Payment of Gratuity Act, 1972 provides that gratuity shall
be payable to an employee on termination of his
employment after he has rendered continuous service for
not less than five years. The termination of the
employment may be on superannuation or on retirement or
resignation or death or disablement due to accident or
disease of the employee. Thus, an employee becomes
entitled to payment of gratuity under the statute. Sub-
section (6) is an exception to Sub-section (1) and makes a
provision of forfeiture of the gratuity wholly or partially in
the circumstances mentioned therein. According to Sub-
section (6), gratuity of an employee may be forfeited to the
extent of damage or loss caused to the employer if service
of that employee has been terminated for any act, wilful
omission or negligence on that ground. The gratuity
payable to an employee may also be forfeited wholly or
partially if the service of such employee has been
terminated for his riotous or disorderly conduct or any
other act of violence on his part or service of such
employee has been terminated for any act constituting an
offence involving moral turpitude. Though a criminal
case was registered against the petitioner by CBI in
the year 1993, the fact is petitioner’s services have
been terminated simpliciter on his superannuation
and not for any of the grounds mentioned under
Sub-section (6) of Section 4 of the Payment of
Gratuity Act, 1972. As a matter of fact, admittedly
till petitioner’s superannuation and even till date no
departmental proceedings of misconduct have been
initiated against the petitioner. In this backdrop ofW.P.(C) No.9496 of 2022 Page 29 of 37
facts, it was not open to the respondents to refuse to
release the gratuity amount to the petitioner.
5. The learned Counsel for respondents heavily relied on
the judgment of the Apex Court in Jarnail Singh v.
Secretary, Ministry of Home Affairs and Ors. 1993 LLJ
962 in support of his contention that gratuity can be
withheld by the employer respondents if any judicial
proceedings are pending against the petitioner relating to
his misconduct or negligence during the period of his
service. We are afraid the judgment of the Apex Court in
Jarnail Singh (supra) has no application in the facts and
circumstances of the case before us. The Apex Court in the
case of Jarnail Singh (supra) was concerned with the
provisions of Central Civil Services (Pension) Rules, 1972
and in the light of the specific Rules 3, 9, 69(1)(c), 71 and
73 held that there was nothing wrong in the order of the
President in withholding the gratuity of the employee. In
the present case, none of the Rules under
consideration before the Apex Court or the similar
Rules are applicable but the petitioner is governed
by the provisions of the Payment of Gratuity Act,
1972 and as per Section 4(1) petitioner has a
statutory right to receive gratuity from his employer
save and except in the circumstances provided
under Sub-section (6) of Section 4. We have already
indicated that none of the circumstances provided
in Sub- section (6) is applicable in the present case
and, therefore, we do not find any justifiable cause
on the part of the respondents in withholding the
gratuity. Mere pendency of a criminal case lodged by
CBI shall not disentitle the petitioner from receiving
gratuity nor shall entitle the respondents to not to
release the gratuity to the petitioner as petitioner’s
services came to an end on his attaining
superannuation simpliciter. We may note here that
Rule 45 of the RCF Employees (Conduct, Discipline and
Appeal) Rules, 1993 does provide for departmental action
against retired employees. Clause (iii) of Rule 45 provides
that in case of an officer who had already retired on
superannuation before instituting any departmental
proceedings and who has received all retiral benefits, as
far as possible only criminal prosecution can be
recommended against him. Even under Clause (ii) of Rule
45, it appears that now no departmental action can be
initiated against the present petitioner as it provides that
if departmental proceedings had not been instituted while
the officer was in service, proceedings under Rule 38 for
imposition of major penalties can be initiated only by or
sanction of the Board of Directors and in respect of aW.P.(C) No.9496 of 2022 Page 30 of 37
cause of action which arose or in respect of an offence
which took place not earlier than four years before the
institution of the-proceedings. The petitioner was
superannuated in the year 1994: the criminal case was
registered against him in the year 1993 before his
superannuation but till date I.e. more than seven years of
his superannuation, no departmental action has been
Initiated and, therefore, such action has become beyond
time provided in clause (ii) of Rule 45 of the RCF
Employees (Conduct, Discipline and Appeal) Rules, 1993.
6. For all these reasons, we are satisfied that the
decision taken by respondents to not to release
payment of gratuity to the petitioner cannot be
sustained”.
(Emphasis Supplied)
19. So far as imposing 10% interest by the Controlling
Authority, the Supreme Court in H. Gangahanume Gowda
(supra), held as follows.
“7. It is evident from Section 7(2) that as soon as
gratuity becomes payable, the employer, whether any
application has been made or not, is obliged to determine
the amount of gratuity and give notice in writing to the
person to whom the gratuity is payable and also to the
controlling authority specifying the amount of gratuity.
Under Section 7(3), the employer shall arrange to pay the
amount of gratuity within 30 days from the date it
becomes payable. Under sub-section (3-A) of Section 7, if
the amount of gratuity is not paid by the employer within
the period specified in sub-section (3), he shall pay, from
the date on which the gratuity becomes payable to the
date on which it is paid, simple interest at such rate not
exceeding the rate notified by the Central Government
from time to time for repayment of long- term deposits;
provided that no such interest shall be payable if the
delay in the payment is due to the fault of the employee
and the employer has obtained permission in writing from
the controlling authority for the delayed payment on that
ground. From the provisions made in Section 7, a clear
command can be seen mandating the employer to pay the
gratuity within the specified time and to pay interest on
the delayed payment of gratuity. No discretion is available
to exempt or relieve the employer from payment of gratuity
with or without interest as the case may be. However,W.P.(C) No.9496 of 2022 Page 31 of 37
under the proviso to Section 7(3-A), no interest shall
be payable if delay in payment of gratuity is due to
the fault of the employee and further condition that
the employer has obtained permission in writing
from the controlling authority for the delayed
payment on that ground. Under Section 8, provision is
made for recovery of gratuity payable under the Act, if not
paid by the employer within the prescribed time. The
Collector shall recover the amount of gratuity with
compound interest thereon as arrears of land revenue and
pay the same to the person entitled. A penal provision is
also made in Section 9 for non- payment of gratuity.
Payment of gratuity with or without interest, as the case
may be, does not lie in the domain of discretion but it is a
statutory compulsion. Specific benefits expressly given in
a social beneficial legislation cannot be ordinarily denied.
Employees on retirement have valuable rights to get
gratuity and any culpable delay in payment of gratuity
must be visited with the penalty of payment of interest
was the view taken in State of Kerala v. M. Padmanabhan
Nair¹. Earlier there was no provision for payment of
interest on the delayed payment of gratuity. Sub-section
(3-A) was added to Section 7 by an amendment, which
came into force with effect from 1-10-1987. In the case of
Charan Singh v. Birla Textiles this aspect was noticed in
the following words: (SCC pp. 214-15, para 4)
“4. There was no provision in the Act for payment
of interest when the same was quantified by the
controlling authority and before the Collector was
approached for its realization. In fact, it is on the
acceptance of the position that there was a
lacuna in the law that Act 22 of 1987 brought
about the incorporation of sub-section (3-A) in
Section 7. That provision has prospective
application”.
9. It is clear from what is extracted above from the
order of the learned Single Judge that interest on delayed
payment of gratuity was denied only on the ground that
there was doubt whether the appellant was entitled to
gratuity, cash equivalent to leave etc., in view of divergent
opinion of the courts during the pendency of enquiry. The
learned Single Judge having held that the appellant was
entitled to payment of gratuity was not right in denying
the interest on the delayed payment of gratuity having
due regard to Section 7(3-A) of the Act. It was not the case
of the respondent that the delay in the payment of gratuity
was due to the fault of the employee and that it had
obtained permission in writing from the controlling
authority for the delayed payment on that ground. As
noticed above, there is a clear mandate in the provisions
W.P.(C) No.9496 of 2022 Page 32 of 37
of Section 7 to the employer for payment of gratuity within
time and to pay interest on the delayed payment of
gratuity. There is also provision to recover the amount of
gratuity with compound interest in case the amount of
gratuity payable was not paid by the employer in terms of
Section 8 of the Act. Since the employer did not satisfy the
mandatory requirements of the proviso to Section 7(3-A),
no discretion was left to deny the interest to the appellant
on belated payment of gratuity. Unfortunately, the Division
Bench of the High Court, having found that the appellant
was entitled to interest, declined to interfere with the order
of the learned Single Judge as regards the claim of
interest on delayed payment of gratuity only on the
ground that the discretion exercised by the learned Single
Judge could not be said to be arbitrary. In the first place
in the light of what is stated above, the learned
Single Judge could not refuse the grant of interest
exercising discretion as against the mandatory
provisions contained in Section 7 of the Act. The
Division Bench, in our opinion, committed an error
in assuming that the learned Single Judge could
exercise the discretion in the matter of awarding
interest and that such a discretion exercised was
not arbitrary”.
(Emphasis supplied)
20. Similarly, this Court in Abhay Kumar Samantray
(supra), referring to the notification made by the Central
Government dated 01.10.1987 in terms of sub-section (3-A) of
section 7 of the Act, 1972, held as follows:
“22. Hence, this Court is of the view that the Controlling
Authority under P.G. Act-Cum-Divisional Labour
Commissioner, Cuttack, was justified to take into
consideration the total period of service of the Opposite
Party from the date of his initial engagement (14.11.1991)
till the date of his superannuation (31.03.2018), so also
award 10% simple interest on the awarded amount
for the delayed period, so also ordering to pay
further simple interest @ 10% per annum till the
payment is made, if the Petitioner-Corporation fails
to deposit the said ordered amount within 30 days
from the date of pronouncement of the judgment”.
(Emphasis supplied)
W.P.(C) No.9496 of 2022 Page 33 of 37
21. In Calcutta Dock Labour Board (supra) the Supreme
Court, referring to Section 13, 14 of the Act, 1972, held that
section 13 of the Act, 1972 gives total immunity to gratuity from
attachment. Paragraph Nos.5 & 6 of the said judgment, being
relevant, are extracted below:
“5. Reference may now be made to Sections 13 and 14
of the Act which are very relevant.
13. Protection of gratuity – No gratuity payable
under this Act shall be liable to attachment in
execution of any decree or order of any civil,
revenue or criminal court.
14. Act to override other enactments, etc.- The
provisions of this Act or any rule made thereunder
shall have effect notwithstanding anything
inconsistent therewith contained in any enactment
other than this Act or in any instrument or contract
having effect by virtue of any enactment other than
this Act.
6. We may point out that by Central Act No.25 of 1984
Section 13 has been amended with effect from July 1,
1984, and the amended section reads thus:
No gratuity payable under this Act and no
gratuity payable to an employee employed in
any establishment, factory, mine, oilfield,
plantation, port, railway company or shop
exempted under Section 5 shall be liable to
attachment in execution of any decree or order
of any civil, revenue, or criminal court.
In the absence of any notification within the meaning of
Section 5 of the Act the amendment is not relevant for
consideration. Section 14 has overriding effect and Section
13 gives total immunity to gratuity from attachment. The
preamble of the Act clearly indicates the legislative
intention that the Act sought to provide a scheme for
payment of gratuity to all employees engaged in, inter
alia, ports and under this Act gratuity was payable to
workers like Md. Safiur Rehman. The gratuity which was
payable to him squarely came within the purview of theW.P.(C) No.9496 of 2022 Page 34 of 37
Act and, therefore, became entitled to immunity under
Section 13 thereof”.
(Emphasis supplied)
22. It is worthwhile to note here that the Petitioner Bank
took a stand before the Appellate Authority in P.G. Appeal Case
No.9 of 2021 that it could not appear before the Controlling
Authority, even though it was duly noticed, due to illness of the
Law Officer of the Bank on 14.01.2019. But in the Memorandum
of Appeal, as at Annexure-8, it has not been explained as to what
prevented the Petitioner Bank to take adequate steps thereafter till
the ex-parte judgment was passed 13.01.2020, directing the
Petitioner Bank to deposit Rs.9,79,054/-.
Contrary to the said stand taken before the Appellate
Authority, prior to preferring the Appeal, a stand was taken before
this Court in W.P.(C) No.7283 of 2021 that due to official
dislocation in the Legal Section of the Bank adequate steps could
not be taken in P.G. Case No.07 of 2018 and no Counter could be
filed disclosing the outstanding payment lying against the
Opposite Party No.4.
Further a new stand has been taken in para-11 of the
present Writ Petition that due to some unavoidable circumstances,
though the Petitioner bank was duly noticed by the Controlling
Authority, it could not appear before the said Authority, for which
W.P.(C) No.9496 of 2022 Page 35 of 37
it was set ex-parte. Even though its a Certiorari proceeding, new
facts have been pleaded for the first time in the Writ Petition and
documents have been appended to the Writ Petition as annexures,
though the said facts were never pleaded before the Appellate
Authority and no such documents were appended to the
Memorandum of Appeal, which is not permissible under law.
23. That apart, though a prayer has been made to set
aside the order passed by the Appellate Authority in P.G. Appeal
Case No.09 of 2021, there is no such prayer in the Writ Petition to
set aside the judgment dated 13.01.2020 passed by the
Controlling Authority in P.G. Case No.07 of 2018.
24. However, in view of the discussions made above so also
settled position of law, this Court is of the view that the Appellate
Authority has passed a well discussed and reasoned order dealing
with all the points raised in the Appeal and there is no infirmity or
illegality in the impugned judgment dated 28.03.2022, passed by
the Appellate Authority under the Act, 1972.
25. Accordingly, the Writ Petition stands dismissed, being
devoid of any merit. No order as to cost.
26. In view of dismissal of the Writ Petition, the interim
order dated 28.07.2022 passed in I.A. No.4973 of 2022, which
stood extended from time to time, stands vacated.
W.P.(C) No.9496 of 2022 Page 36 of 37
27. The Authority concerned is at liberty to release the
deposited amount in favour of the Opposite Party No.4.
…………………………..
S.K. MISHRA, J.
Orissa High Court, Cuttack
The 9th October, 2024/Kanhu
Signature Not Verified
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 20-Oct-2024 12:17:44
W.P.(C) No.9496 of 2022 Page 37 of 37