Zila Sahkari Kendriya Bank Maryadit vs Rajju Khan and Others

(Smt.) Vimla Jain, J.—The petitioner, being aggrieved by order dated 7.9.2011 (Annexure P/1) passed in Second Appeal No. 137/2010 by respondent No. 2 M.P. State Cooperative Tribunal Bhopal, confirming the order dated 2.6.2010 (Annexure P/2) passed by respondent No. 3 Joint Registrar, Cooperative Societies, Sagar directing the petitioner/Zila Sahkari Kendriya Bank Maryadit, Panna (for brevity petitioner-Bank) to release a sum of Rs. 76,069/- to respondent No. 1 Rajju Khan alongwith the interest has come to this Court by filing a writ petition under Article 227 of the Constitution of India. Briefly stated the facts of the case are that the respondent No. 1 served the petitioner-Bank as a Branch Manager and retired on 31.8.2011. The Primary Cooperative Societies, working under his supervision, were allocated the distribution of pesticides including its storage, control and supervision during his posting as Branch Manger, Branch Shahnagar. But due to his carelessness, the pesticides could not be sold and returned back to M.P. Agro Industries and Development Corporation and thus a loss had occurred to the petitioner-Bank. Therefore, a detailed enquiry was conducted against respondent No. 1 for the loss incurred to the petitioner-Bank and it was decided to recover a sum of Rs. 76,069/- from the retiral benefits of the respondent No. l. Respondent No. 1 had taken voluntary retirement on 31.8.2011 and pursuant thereto, the petitioner-Bank had released all the retiral dues to respondent No. 1 but from the gratuity of Rs. 1,83,000/-, the aforesaid sum of Rs.76,069/-was deducted and the balance amount was paid to respondent No. 1.

Being dissatisfied by such action of the petitioner-Bank, the respondent No. 1 submitted a claim u/s 64 of the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as the ''Act'') before respondent No. 3 Joint Registrar, Sagar who in turn transferred it to respondent No. 4 Assistant Registrar, Panna for disposal. The Assistant Registrar, Panna, by its order Annexure P/3 dated 9.6.2008 directed the petitioner-Bank to refund a sum of Rs. 76,069/- to respondent No. 1 alongwith interest. The order Annexure P/3 dated 9.6.2008 was challenged by the petitioner-Bank before the respondent No. 3-Joint Registrar, Sagar who by its order Annexure P/2 dated 2.6.2010 in Case No. 78-45/2008 dismissed the appeal. Being dissatisfied with the orders dated 9.6.2008 and 2.6.2010, the petitioner-Bank filed Second Appeal No. 137/2010 before the respondent No. 2 M.P. State Cooperative Tribunal, which vide its order Annexure P/1 dated 7.9.2011 dismissed the second appeal Hence, the petitioner has filed the present writ petition.

The learned counsel for the petitioner submitted that the Bank can recover the loss occurred to it from the gratuity of the respondent. He placed reliance in the case of Secretary, O.N.G.C. Ltd. and Another Vs. V.U. Warrier, . It is also submitted that the penalty by way of recovery of Rs. 76,069/- was imposed in the departmental enquiry held against the respondent No. 1. It was argued that M.P. State Agro Industries and Development Corporation was necessary party but the said Corporation was not made a party in the authority/Tribunal. Thus, on these grounds, the petition deserves to be allowed.

The Apex Court in Secretary, ONGC Limited and another vs. V.U. Warrier (supra) held thus:-

Respondent officer of ONGC, after retirement did not vacate official quarter allotted to him, even after four months'' time granted to him. His prayer for extension of time was rejected in view of several officers waiting for quarter. He was also informed that penal rent as per ONGC''s policy would be recovered from him on his not vacating the quarter within time. But respondent vacated the quarter only after eviction proceedings were initiated against him. In these circumstances it was held that the action of ONGC of deducting penal rent from gratuity in terms of the Regulations was not arbitrary, unlawful or unreasonable. ONGC had a right to withhold gratuity by deducting the amount found due to it and payable by respondent towards penal charges for unauthorized occupation of the quarters.

The citation referred to by learned counsel for the petitioner has no direct bearing on the facts of the instant case.

The right to gratuity is a statutory right of the respondent who took voluntary retirement. It is a fact that his services were not terminated by the Bank. Therefore, he is entitled to full amount of gratuity. It will be appropriate to quote the relevant legal provisions which reads thus:-

Section 4(6) of the Payment of Gratuity Act, 1972 provides thus:-

Notwithstanding anything contained in Sub section (1),

(a) the gratuity of an employee, whose services have been terminated for any act, willful 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;

(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......................

It is clear that the dispute was between the manager and its employer-bank. The manager had no claim against the M.P. Agro Industries and Development Corporation. The bank did not choose to file any application before the authorities and Tribunal to make M.P. Agro Industries and Development Corporation as party. Therefore, such objection is not sustainable before this Court.

It is a fact that the respondent had taken voluntary retirement before this superannuation. The petitioner permitted his voluntary retirement. It is also a fact that his services had not been terminated on the ground of any misconduct. Therefore his gratuity cannot be forfeited u/s 4(6) of the payment of Gratuity Act 1972. Thus, the forfeiture of gratuity of the respondent by the petitioner was illegal. For the aforementioned reasons, we do not find any merit in the writ petition. Therefore, we dismiss the petition at the stage of motion hearing itself.