# Baroda U.P. Bank v. Komal Ram & Ors

- **Citation:** (2024) 9 ILRA 845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Writ C No. 20839 of 2024
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baroda-u-p-bank-v-komal-ram-ors-52522
- **Pages:** 11

## Headnote

A. Civil Law - Constitution of India, 1950Article 226- Payment of Gratuity Act,
1972-Section 4(6)-The respondents were
employees of Baroda U.P. bank-both were
dismissed
from
service
for
financial
irregularities-respondents
filed
claims
under the Payment of Gratuity Act,1972
for gratuity payment for their years of
service before dismissal-Held, gratuity is a
statutory
right
under
the
Act,1972respondents were entitled to gratuity as
forfeiture provisions were not applied by
the bank and gratuity cannot be withheld
without
following
statutory
forfeiture
procedures as forfeiture provisions were
nto
invoked
by
the
bank
during
disciplinary
proceedings-Orders
of
controlling
and
appellate
authorities
granting
gratuity
and
interest
were
upheld.(Para 1 to 22)

The writ petitions are dismissed. (E-6)

## Text

9 All. Baroda U.P. Bank Vs. Komal Ram & Ors.
845

19. No order as to costs.
----------
(2024) 9 ILRA 845
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ C No. 20839 of 2024
With
Writ C No. 20841 of 2024

Baroda U.P. Bank ...Petitioner
Versus
Komal Ram & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Gyan Prakash Srivastava

Counsel for the Respondents:
Mr. Shubham Kumar, Mr. Anant Kumar
Tiwari

A. Civil Law - Constitution of India, 1950Article 226- Payment of Gratuity Act,
1972-Section 4(6)-The respondents were
employees of Baroda U.P. bank-both were
dismissed
from
service
for
financial
irregularities-respondents
filed
claims
under the Payment of Gratuity Act,1972
for gratuity payment for their years of
service before dismissal-Held, gratuity is a
statutory
right
under
the
Act,1972respondents were entitled to gratuity as
forfeiture provisions were not applied by
the bank and gratuity cannot be withheld
without
following
statutory
forfeiture
procedures as forfeiture provisions were
nto
invoked
by
the
bank
during
disciplinary
proceedings-Orders
of
controlling
and
appellate
authorities
granting
gratuity
and
interest
were
upheld.(Para 1 to 22)

The writ petitions are dismissed. (E-6)
(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1.
Heard
Mr.
Gyan
Prakash
Srivastava,
learned
counsel
for
the
petitioner, Mr. Shubham Kumar, learned
counsel for respondent nos. 1/1 to 1/5, Mr.
Anant Kumar Tiwari, learned counsel for
respondent nos. 2 & 3 in the leading
petition and Mr. Gyan Prakash Srivastava,
learned counsel for the petitioner, Mr. Sri
Narayan Mishra, learned counsel for
respondent no.1, Mr. Anant Kumar Tiwari,
learned counsel for respondent nos. 2 & 3
in the connected petition, i.e. Writ C
No.20841 of 2024.

2. With the consent of learned counsel
for the parties, both the aforesaid writ
petitions are being heard finally without
inviting counter affidavits in the matter.

3. Since common issues are involved
in both the writ petitions, same are being
disposed of by a common order. The facts
stated in Writ C No.20839 of 2024 shall be
treated as a leading petition.

4. Brief facts of the case stated in the
leading
petition
are
that
erstwhile
Purvanchal Bank, Kashi Gomti Samyut
Gramin Bank are now amalgamated vide
Government Notification No.3837 dated
26.11.2019 and assigned the new name
"Baroda U.P. Bank". The Baroda U.P.
Bank came into existence w.e.f. 1.4.2020.
The employees who were working under
erstwhile Kashi Gomti Samyut Gramin
Bank, now Baroda U.P. Bank are governed
by Baroda U.P. Bank (Officer and
Employees) Service Regulations, 2020. In
respect to payment of gratuity, there exists
Regulation No.72 for payment of gratuity
in the Purvanchal Gramin Bank (Officers &
Employees), Service Regulations, 2010,
now Baroda U.P. Bank (Officers &
Employees) Service Regulations, 2020.
Under Chapter 4 of Regulation, 2010, there
846 INDIAN LAW REPORTS ALLAHABAD SERIES
exist Regulations 16 to 51 which contains
provision pertaining to conduct, discipline
and appeals. Respondent no.1 joined in
Kashi Gomti Samyut Gramin Bank and he
was holding the post of Officer JMGS-1 at
Nariaon
Branch.
At
the
time
of
aforementioned posting, in respect to
certain financial irregularity, a charge-sheet
dated 21.1.2020 was issued to respondent
no.1.
The
aforesaid
disciplinary
proceedings,
on
the
basis
of
the
aforementioned
charge-sheet,
was
concluded and vide order dated 7.9.2012,
respondent no.1 was dismissed from
services of the bank with immediate effect.
Against the order dated 7.9.2012, an appeal
was filed by respondent no.1 which was
dismissed by the appellate authority on
1.2.2013. Respondent no.1 filed re-appeal
against the order dated 7.9.2012 which was
also dismissed on 18.11.2013 on the
ground that there is no provision of review
under
Service
Regulation,
2010.
Respondent no.1 challenged the orders
dated 7.9.2012 and 1.2.2013 before this
Court by wary of Writ A No.22630 of 2013
which was dismissed by this Court vide
order dated 1.5.2013. Respondent no.1 filed
an application on 22.2.2018 before the
Assistant
Labour
Commissioner
(Central)/Controlling Authority under the
Payment of Gratuity Act, 1972 (hereinafter
referred to as "the Act") which was
registered as Case No.A-48(9) of 2018,
claiming gratuity for services rendered by
him in bank for 32 years 11 months and 24
days, i.e. from 13.10.1979 to 7.9.2012. The
notice was issued by the Controlling
Authority to the bank, accordingly, the
bank submitted his reply before the
Controlling Authority on 12.10.2018. The
Controlling Authority vide order dated
16/19.8.2021 has held that respondent no.1
is
entitled
for
gratuity
amount
of
Rs.4,68,213/- along with 7 % simple
interest, amounting to Rs.2,89,511/-, total
amounting to Rs.7,57,724/-. Against the
order of the Controlling Authority dated
16/19.8.2021, the petitioner-bank filed an
appeal under sub-section 7 of Section 7 of
the Act before the Deputy Chief Labour
Commissioner
(Central)/The
Appellate
Authority by depositing Rs.7,57,724/- vide
D.D. No.371829 dated 29.11.2021. The
aforementioned appeal was registered as
Case No.K-36(69)/2021 C-1. The appellate
authority vide order dated 27.3.2024
dismissed the appeal filed by the petitioner,
hence, this writ petition for the following
reliefs:-

(i) Issue a writ, order or
direction in the nature of Certiorari
quashing the impugned order dated
27.03.2024 which was sent on 08.04.2024
as passed by Deputy Chief Labour
Commissioner (Central)/The Appellate
Authority (Under Payment of Gratuity
Act, 1972), Udyog Nagar, Kanpur, the
same was received by the petitioner on
16.04.2024 in Case No. K.36 (69)/2021 C1 (The Chairman, Baroda U.P. Bank Vs.
Shri Komal Ram & Another) Annexure
No.1 to this Writ Petition.

ii. Issue a writ, order or
direction in the nature of Ceriorari
quashing the impugned order dated
16/19.08.2021 as passed by the Assistant
Labour Commissioner (Central), The
Controlling Authority (Under Payment
of Gratuity Act, 1972), Allahabad in
Case No. A-48 (9) 2018 (Sri Komal Ram
Vs The Chairman Kashi Gomti Samyut
Gramin Bank.) Annexure No.2 to this
Writ Petition.

Iii. Issue a writ, order or
direction in the nature of mandamus
restraining the respondent nos. 2 & 3 for
releasing the deposited amount Rs.
7,57,724/- as was deposited by the
9 All. Baroda U.P. Bank Vs. Komal Ram & Ors.
847
petitioner-bank at the time of the filing
of appeal.

iv. Issue a writ, order or
direction in the nature of mandamus
restraining the respondents from taking
any coercive action pursuant to orders
impugned.

5. This Court vide order dated
18.7.2024 entertained the matter and
granted interim relief. The order dated
18.7.2024 runs as follows:-

"1. Heard Mr. Gyan Prakash
Shrivastava, learned counsel for the
petitioner,
Mr.
Shubham
Kumar,
learned counsel for respondent no.1 and
Mr. Anant Kumar Tiwari, learned
counsel for respondent nos.2 & 3.

2. Learned counsel for the
petitioner submitted that the impugned
order has been passed in arbitrary
manner by the controlling authority
under the Payment of Gratuity Act,
1972. He further submitted that the
petitioner was dismissed from service
and writ petition against the dismissal
order has been dismissed by this Court,
as such, in view of the ratio of law laid
down by the Hon'ble Apex Court in the
case of Chairman Cum Managing
Director, Mahanadi Coalfields Limited
Vs. Sri Rabindranath Choubey passed in
Civil
Appeal
No.9693
of
2013,
respondent no.1 is not entitled to claim
gratuity as ordered under the impugned
order. He further submitted that the
appeal filed by the petitioner has also
been dismissed in arbitrary manner.

3. On the other hand, learned
counsel for respondent no.1 submitted
that there is no illegality in the order of
controlling
authority
as
there
was
violation of the mandatory provisions
contained
under
the
Payment
of
Gratuity Act, 1972.

4.
Learned
counsel
for
respondent no.1 shall address the Court
about the ratio of law laid down by the
Hon'ble Apex Court in the case of
Chairman Cum Managing Director,
Mahanadi Coalfields Limited (supra) on
the next date fixed in the matter as well
as place case law in support of his
argument.

5. Put up this case as fresh on
31.7.2024.

6. Till the next date of listing,
the amount deposited by the petitioner
under the order of controlling authority
shall not be released by respondent
no.2."

6. The brief facts of the case in
connected petition is that respondent no.1
joined in the establishment of Purvanchal
Bank and lastly he was also holding the
post of JMGS-II at Kubersthan branch,
Kushinagar
and
Jannipur
branch,
Gorakhpur. Respondent no.1 was dismissed
from service vide order dated 13.12.2014
and appeal filed by respondent no.1 was
dismissed by the appellate authority on
8.4.2015. Respondent no.1 challenged the
dismissal order as well as appellate order
before this Court by way of Writ A
No.69162 of 2015 which was dismissed
vide order dated 15.5.2018. Respondent
no.1 initiated proceeding for payment of his
due gratuity under the Payment of Gratuity
Act, 1972 (hereinafter referred to as "the
Act") which was allowed by Controlling
Authority vide order dated 16.10.2019 for
gratuity amount of Rs.5,72,178/- and
interest of Rs.100131/- total Rs.6,72,309/-.
In appeal filed by petitioner, the order of
controlling authority was modified by
appellate
authority
vide
order
dated
1.4.2024 to the extent that respondent no.1
848 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be entitled to total Rs.8,43,963/- in
place of Rs.5,72,178/- as interest was not
rightly
calculated
by
the
controlling
authority, hence, this writ petition for
following relief:-

(i) Issue a writ, order or direction
in the nature of Certiorari quashing the
impugned order dated 1.4.2024 which was
sent on 09.04.2024 as passed by Deputy
Chief
Labour
Commissioner
(Central)/The Appellate Authority (Under
Payment of Gratuity Act, 1972), Udyog
Nagar, Kanpur, the same was received by
the petitioner on 16.04.2024 in Case No.
K.36 (12)/2020 C-1 (The Chairman,
Baroda U.P. Bank vs. Shri Komal Ram &
Another) Annexure No.1 to this Writ
Petition.

ii. Issue a writ, order or direction
in the nature of Certiorari quashing the
impugned order dated 16.10.2019 as
passed
by
the
Regional
Labour
Commissioner (Central), The Controlling
Authority (Under Payment of Gratuity
Act, 1972), Lucknow in Case No. LKO 36
(27) /2017 (Sri Santosh Kumar Pathak vs.
The
Chairman,
Purvanchal
Bank).
Annexure No.2 to this Writ Petition.

iii. Issue a writ, order or
direction in the nature of mandamus
restraining the respondent nos. 2 & 3 for
releasing the deposited amount of Rs.
5,72,178/- as was deposited by the
petitioner-bank at the time of the filing of
appeal.

iv. Issue a writ, order or
direction in the nature of mandamus
restraining the respondents from taking
any coercive action pursuant to orders
impugned.

7. This Court entertained the matter on
18.7.2024 and granted interim order on
18.7.2024.

8. Learned counsel for the petitioner
submitted
that
in
the
disciplinary
proceeding, initiated against respondent
no.1, with respect to serious financial
charges, respondent no.1 was held guilty
and was dismissed from service of the bank
with immediate effect, as such, respondent
no.1 is not entitled to gratuity as claimed by
him. He further submitted that appeal as
well as re-appeal filed by respondent no.1
against his dismissal order, has also been
dismissed by the appellate authority. He
submitted that even the writ petition filed
by respondent no.1 in respect to the
dismissal order, has been dismissed by this
Court, as such, respondent no.1 is not
entitled to claim gratuity. He also submitted
that respondent no.1 has not disclosed in
his application for payment of gratuity
regarding
the
disciplinary
proceeding
initiated against him, as such, the impugned
order cannot be sustained in the eye of law.
He also submitted that the Controlling
Authority has failed to consider the
material fact that petitioner-bank has its
own rules governing the payment of
gratuity to its officers and employees, as
such, the Act shall not be applicable in
the petitioner-bank. He submitted that
appeal filed by the petitioner-bank has
also been dismissed in arbitrary and
casual manner, as such, the impugned
order is liable to be set aside and the
claim of respondent no.1 for payment of
gratuity is liable to be rejected. He placed
reliance upon the judgement of the
Hon'ble Apex Court in Civil Appeal
No.9693
of
2013,
Chairman-cumManaging
Director,
Mahanadi
Coalfields
Limited
vs.
Sri
Rabindranath Chaubey, decided on
27.5.2020. He further placed the Service
Regulation of the petitioner-bank which
provides for payment of gratuity to its
officers and employees.
9 All. Baroda U.P. Bank Vs. Komal Ram & Ors.
849

9. On the other hand, learned counsel
appearing for respondent no.1 in both the
writ petitions submitted that respondent
no.1
was
regular
employee
of
the
petitioner-bank, as such, the claim for
gratuity set up by respondent no.1, cannot
be refused by the authority. He submitted
that the respondent no.1 in both the writ
petitions have claimed for gratuity for the
period they were appointed in the bank and
till the date they were dismissed from the
service, as such, there was no question of
any concealment on the part of respondent
no.1 before the Controlling Authority or the
appellate authority. They further submitted
that so far as the delay in raising the claim
is
concerned,
since
the
Controlling
Authority had already condoned the delay
in
entertaining
the
application
and,
thereafter, passed an order on merit, as
such, the argument advanced by learned
counsel for the petitioner regarding delay in
raising the claim, is misconceived. They
further submitted that respondent no.1 have
completed 32 years 11 months and 24 days
service before his dismissal, as such,
respondent no. 1 in both the petitions are
eligible to receive the gratuity for the
aforementioned service period. They also
submitted that since respondent no.1 in
both the petitions were denied for their
legal claim regarding gratuity, as such, the
interest has been rightly awarded by the
Controlling Authority. They submitted
that appeal filed by the petitioner-bank
has been rightly dismissed, deciding each
and every point raised by the petitioner,
which requires no interference under
Article 226 of the Constitution of India.
They further submitted that in connected
petition, the claim regarding interest was
modified by appellate authority in proper
manner. They further submitted that the
judgement of Hon'ble Apex Court in
Chairman-cum-Managing
Director,
Mahanadi Coalfields Ltd. (supra) is not
applicable in the present matter. He
further placed the judgment of Hon'ble
Apex
Court
reported
in
1996
(4)
Supreme 764, Pawan Kumar vs. State
of Haryana and Another and that of the
Delhi High Court reported in 2024 DHC
5022, Punjab National Bank vs. Niraj
Gupta and Another in support of his
argument. They finally submitted that the
writ petition is liable to be dismissed.

10. I have considered the arguments
advanced by learned counsel for the
parties and perused the records.

11. There is no dispute about the fact
that respondent no.1 in both the petitions
were appointed in the erstwhile Kashi
Gomti Samyut Gramin Bank and at the
time of dismissal, they were holding the
post of Officer JMGS-1 & JMGS-II.
There is also no dispute about the fact
that the respondent no.1 in both the
petitions were dismissed from service and
appeal, re-appeal as well as the writ
petition
filed
by
them
were
also
dismissed. There is also no dispute about
the fact that the claim of gratuity under
the Act, filed by respondent no.1, was
allowed and the appeal filed by petitioner
under Section 7(7) of the Act has been
dismissed under the impugned order.

12.
In
order
to
appreciate
the
controversy involved in the matter, perusal
of Section 4(6) & 7 of the Payment of
Gratuity Act, 1972 as well as Rule 8(1) of
the Payment of Gratuity (Central) Rules,
1972 will be relevant for consideration
which are as under:-

"Section 4(6) of the Payment of
Gratuity
Act,
1972:-Notwithstanding
anything contained in sub-section (1)
850 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) 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 fortefied 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 onhis part, or,

(ii) if the services of such
employee have been terminated for any
act which constitutes as offence involving
moral turpitude, provided that such
offence is committed by him in the
course of his employment."

"Section 7 of the Payment of
Gratuity Act, 1972:-(1) A person who is
eligible for payment of gratuity under
this Act or any person authorised, in
writing, to act on his behalf shall send a
written application to the employer,
within such time and in such form, as
may be prescribed, for payment of such
gratuity.

(2) 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 to the
controlling
authority
specifying
the
amount gratuity so determined.

(3) The employer shall arrange
to pay the amount of gratuity within
thirty days from the date it becomes
payable to the person to whom the
gratuity is payable.

(3A) 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:

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 this ground.]

(4) (a) If there is any dispute as
to the amount of gratuity payable to an
employee under this 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.

(b) 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.]

(c)] 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.]
9 All. Baroda U.P. Bank Vs. Komal Ram & Ors.
851

(d) The controlling authority
shall
pay
the
amount
deposited,
including the excess amount, if any,
deposited by the employer, to the person
entitled thereto.

(e) As soon as may be after a
deposit is made under clause (a), the
controlling authority shall pay the
amount of the deposit -

(i) to the applicant where he is
the employee; or

(ii) where the applicant is not
the employee, to the nominee or, as the
case may be, the guardian of such
nominee or] heir of the employee if the
controlling authority is satisfied that
there is no dispute as to the right of the
applicant to receive the amount of
gratuity.

(5)
For
the
purpose
of
conducting an inquiry under sub-section
(4), the controlling authority shall have
the same powers as are vested in a court,
while trying a suit, under the Code of
Civil Procedure, 1908 (5 of 1908), in
respect of the following matters, namely
:

(a) enforcing the attendance of
any person or examining him on oath;

(b) requiring the discovery and
production of documents,

(c)
receiving
evidence
on
affidavits;

(d) issuing commissions for the
examination of witnesses.

(6) Any inquiry under this
section shall be a judicial proceeding
within the meaning of sections 193 and
228, and for the purpose of section 196,
of the
Indian Penal Code, 1860 (45 of 1860).

(7) Any person aggrieved by an
order under sub-section (4) may, within
sixty days from the date of the receipt of
the order, prefer an appeal to the
appropriate Government or such other
authority as may be specified by the
appropriate Government in this behalf:

Provided that the appropriate
Government or the appellate authority,
as the case may be, may, if it is satisfied
that the appellant was prevented by
sufficient cause from preferring the
appeal within the said period of sixty
days, extend the said period by a further
period of sixty days.

Provided further that no appeal
by an employer shall be admitted unless
at the time of preferring the appeal, the
appellant either produces a certificate of
the controlling authority to the effect
that the appellant has deposited with
him an amount equal to the amount of
gratuity required to be deposited under
subsection (4), or deposits with the
appellate authority such amount."

"Rule- 8(1) of the Payment of
Gratuity Central Rules, 1972:- Within
fifteen days of the receipt of an
application under Rule-7 for payment of
gratuity, the employer shall-

(i)
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, or

(ii) if the claim for gratuity is
not found admissible, issue a notice in
Form-M to the applicant employee,
nominee or legal heir, as the case may be
specifying the reasons why the claim for
gratuity is not considered admissible."

13. The perusal of Chapter VII of
Section 72 of the Regulation 2010 will be
relevant for perusal which is as under:-
852 INDIAN LAW REPORTS ALLAHABAD SERIES

72. Gratuity.-

(1) An officer or employee shall
be eligible for payment of gratuity either
as per the provisions of the Payment of
Gratuity Act, 1972 (39 of 1972) or as per
sub-regulation (2), whichever is higher.

(2) Every officer or employee
shall be eligible for gratuity on, -

a) retirement,

b) death,

c) disablement rendering him
unfit for further service as certified by a
medical officer approved by the Bank, or

(d) resignation after completing
10 years of continuous service, or

(e) termination of service in any
other way except by way of punishment
after completion of 10 years of service:

Provide that in respect of an
employee there shall 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.

(3) The amount of gratuity
payable to an officer or employee shall
be one months pay for every completed
year of service or part thereof in excess
of six months subject to a maximum of
15 month's pay:

Provided that where an officer
or employee has completed more than 30
years of service, he shall be eligible by
way of gratuity for an additional amount
at the rate of one half of a month's pay
for each completed year of service
beyond 30 years:

Provided further that in respect
of an officer the gratuity is payable
based on the last pay drawn:

Provided also that in respect of
an employee pay for the purposes of
calculation of the gratuity shall be the
average of the basic pay (100%),
dearness
allowance
and
special
allowance
and
officiating
allowance
payable during the 12 months preceding
death, disability, retirement, resignation
or termination of service, as the case
may be.

14. The perusal of operative portion of
dismissal order dated 7.9.2012 passed
against respondent no.1 in the leading
petition will be necessary which is as
under:-

Order

SHRI
KOMAL
RAM
IS
HEREBY
DISMISSED
FROM
THE
SERVICES OF THE BANK
WITH
IMMEDIATE EFFECT.

THE PERIOD OF SUSPENSION
SHALL BE TREATED AS PERIOD NOT
SPENT ON DUTY AND HENCE SRI
KOMAL RAM SHALL NOT BE PAID
ANY SALARY AND ALLOWANCES
OTHER
THAN
SUBSISTENCE
ALLOWANCE ALREADY PAID TO
HIM.

15. The perusal of the dismissal order
dated
13.12.2014
passed
against
the
respondent no.1 in the connected petition
will be necessary which is as under:-

एतद्द्िारा मैं सक्षम प्राधधकारी श्री
सन्तोर् कुमार पाठक पर अधधरोपण हेतु
प्रस्तावित दण्ड की पुजष्ट करते हुये पूिाांचन
ग्रामीण बैंक (अधधकारी और कमशचारी) सेिा
वितनयम, 2010 के वितनयम 39.1 (क) (iv)
के अन्तगशत बैंक को हुई सम्पूणश धनीय
हातन रू० 03.81 लाख मार (रूपये तीन
लाख इक्यासी हजार मार) की िसूली उनके
समापत लाभों से करने (Recovery of Rs.
03.81 lac only i.e. Rs. Three lac eighty
9 All. Baroda U.P. Bank Vs. Komal Ram & Ors.
853
one thousand only from his terminal
benefits the whole pecuniary loss caused
to the bank) एिीं 39.1 (ख) (iv) के अन्तगशत
सेिा से हटाया जाना जो भािी तनयोजन के
ललये तनरहशता नहीीं होगी(removal from
service
which
shall
not
be
a
disqualification for future employment)
का दण्ड देता हूाँ।

इस आदेर् की सूचना श्री सन्तोर्
कुमार पाठक को दे दी जाय एिीं इसकी एक
प्रतत उनकी सेिा पींजजका/अलभलेख में
सींलग्न की जाय।

ह० अप०

(राकेर् कुमार गुपता)

सक्षम प्राधधकारी

अध्यक्ष

पूिाांचन बैंक

16. The perusal of the provision
contained under the Act, regulation of the
bank, dismissal order dated 7.9.2012, it is
established that respondent no.1 who has
expired during pendency of the instant writ
petition now represented by his legal heirs
in the leading petition and respondent no.1
in the connected petition, cannot be
deprived from gratuity for the period from
the date of appointment till the date of
dismissal of service of respondent no.1, i.e.
32 years 11 months 24 days as there is no
proceeding at the instance of the bank for
forfeiture of gratuity as provided under
Section 4(6) of the Act and Rule 8(1) of the
Payment of Gratuity (Central) Rules, 1972.

17.
Controlling
Authority
and
appellate authority have considered the
point relating to delay in filing the claim
for gratuity, entitlement for gratuity as well
as interest on the amount of gratuity which
requires no interference by this Court under
Article 226 of the Constitution of India.

18. The payment of gratuity is not
charity rather is a statutory right recognized
by the Act.

19.
The
disciplinary
proceeding
initiated against the respondent no.1 who is
no more, has resulted into dismissal of
service as well as depriving them from
salary and allowance during suspension
except subsistence allowance, as such,
further depriving the respondent no.1/his
legal heirs after death of respondent no.1 in
the leading petition and respondent no.1 in
the connected petition from gratuity for the
period before the date of dismissal of his
service will be excessive punishment and
cannot be permitted in view of the
provisions contained under the Acts and
Rules.

20. The case law cited by learned
counsel for the petitioner in Chairmancum-Managing
Director,
Mahanadi
Coalfields (supra) has been taken into
consideration by Delhi High Court in the
case of Punjab National Bank (supra) as
cited by learned counsel for respondents.
Paragraph Nos. 90 to 101 of the judgment
in Punjab National Bank (supra) will be
relevant for perusal which are as under:-

"90. This Court is further of the
view that the most essential element
which is with regards to the act resulting
in dismissal constituting an "offence"
amounting to moral turpitude has not
been proved against the respondent
employee by a Court of competent
jurisdiction and the same can be
deduced from the fact that no criminal
proceedings either by the complainant or
854 INDIAN LAW REPORTS ALLAHABAD SERIES
by the petitioner Bank has been initiated
against the respondent employee let
alone conviction.

91. Before concluding, this
Court before, deems it necessary to shed
some light on a specific averment
advanced by the learned Counsel for the
petitioner Bank i.e., the judgment passed
in Jaswant Singh Gill (Supra), relied
upon in Ajay Babu (Supra) has been
overruled by a three Judges Bench of the
Hon‟ble Supreme Court in Mahanadi
Coalfields (Supra).

92.
Before
clarifying
the
disputed position of law as averted by
the learned counsel for the petitioner
Bank this Court, deems it necessary to
cull out the findings of the Hon‟ble
Supreme Court in Jaswant Singh Gill
(Supra) wherein the discussion inter alia
was majorly based on two aspects:

Firstly it was held that the
provisions contained under Section 4(6)
of the Payment of Gratuity Act, 1972
would prevail over the non-statutory
rules (Rules 34.2 and 34.30 framed by
Bharat Coking Coal Ltd. (a subsidiary of
Coal India Ltd.). Secondly, the Court
analysed the provision contained under
the Act especially Section 4(6) of the
Payment of Gratuity Act, 1972 and
observed that the Act provides for a
close-knit
scheme
for
payment
of
gratuity and contains detailed provisions
which not only creates a right to
payment of gratuity for the employees
but also lay down the conditions in which
the same may be forfeited. Furthermore,
it was held that Section 4(6)(b) of the Act
also provides for forfeiture of gratuity
payable to an employee wholly or partly
in the event his services have been
terminated by the employer on account
of his riotous or disorderly conduct or
for any other act of violence on his part
or if he has been convicted for an offence
involving moral turpitude.

93.
The
Hon'ble
Supreme
Court in the judgment of Mahanadi
Coalfields (Supra) took an opposite view
to the decision in Jaswant Singh Gill
(Supra) wherein it was inter alia held
that the Payment of Gratuity Act, 1972
would prevail over the non-statutory
rules framed by the employer. The
Hon‟ble Court in Mahanadi Coalfields
(Supra) found it difficult to agree with
the decision in Jaswant Singh Gill
(Supra) and observed that the Rules
framed by the employer are applicable
and are not repugnant to provisions of
the Payment of Gratuity Act, 1972.

94. After having stated the ratio
of Jaswant Singh Gill (Supra), it is
appropriate to deal with the abovesaid
contention. With regard to the averment
made by the counsel for the petitioner
Bank, this Court is of the view that
although
the
judgment
passed
in
Jaswant Singh Gill (Supra) has been
overruled by a three-Judge Bench of the
Hon‟ble Supreme Court in Mahanadi
Coalfields (Supra) however, a perusal
and close understanding of the same
depicts that nowhere has the aspect
pertaining to „conviction‟ being an
essential
element
for
forfeiture
of
gratuity under Section 4(6)(b) of the Act
been overruled.

95. In fact, the said aspect has
not been discussed or analysed at all by
the Hon"ble Court thus, it is clarified
that Jaswant Singh Gill (Supra) in its
entirety has not been overruled and the
reliance placed upon it by the Hon"ble
Court in Ajay Babu (Supra) cannot be
deemed redundant.

CONCLUSION

96. Resultantly, as far as the
instant case is concerned, is that the
9 All. Dynamic Infracon Pvt. Ltd. Vs. State of U.P. & Ors.
855
order for forfeiture of gratuity payable
to
the
respondent
employee
was
premature and could not have been
taken until the respondent employee was
convicted by a Court of competent
jurisdiction for the act constituting an
offence involving moral turpitude as per
Section 4(6)(b)(ii) of the Act.

97. Considering the principles
laid down by the Hon'ble Supreme
Court, as well as the consistent view
taken
by
various
High
Courts
including this Court, the submission
advanced
by
the
petitioner
Bank
cannot be accepted.

98.
For
all
the
aforesaid
reasons, this Court does not any merit in
the instant petition and the same is,
hereby, held to be misconceived and
unnecessary. The petitioner Bank has
not been able to make out a case which
warrants the interference of this Court
under
the
extraordinary
writ
jurisdiction.

99. In view of the foregoing
discussions, this Court finds no infirmity
in the impugned Order dated 7th April,
2022 passed by the learned Appellate
Authority
under
the
Payment
of
Gratuity Act, 1972 in Appeal No.
36(09)/2021 P.A.DYC and subsequent
Notice dated 26th April, 2022 issued by
the respondent no.2 bearing no. ALCI/36(88)2018, accordingly, the same are
upheld.

100.
In
light
of
the
aforementioned observations, the instant
writ petition is accordingly dismissed
along with pending applications, if any.

101. The order be uploaded on
the website forthwith."

21. Considering the entire facts and
circumstances of the case, no interference
is required against the impugned orders.

22. The writ petitions are dismissed
and interim orders granted on 18.7.2024 are
vacated.

23. No order as to cost.
----------
(2024) 9 ILRA 855
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ - C No. 22963 of 2024
With
Writ - C No. 20023 of 2024

Dynamic Infracon Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan (Sr. Adv.), Sri Udayan
Nandan

Counsel for the Respondents:
Sri Manish Goyal (Addl. A.G.), Ms. Akansha
Sharma (S.C.), Sri Navin Sinha (Sr. Adv.),
Sri Nikhil Agarwal, Sri Manmohan Singh, Sri
R.P. Singh

A. Civil Law - Constitution of India,1950Article 226-The cases involved challenges
to a tender process for the supply of Sal
wood sleepers and edgings for the Maha
Kumbh
Mela
2025-a
mandatory
requirement that bidders or the lead
member of a consortium hold at least
51% of 1,000 cubic meters of Sal wood
stock-physical inspection of the stock as
per clause 6(g) of the e-bid document was
not
conducted-the
alleged
violations
rendered the selection process arbitrary
and biased-Held, the court found no
conclusive evidence that the lead member
of the winning consortium failed to meet
stock requirements-the decision-making