The Chief Executive Officer Vs Sri B Chandrahasa Rai

THE CHIEF EXECUTIVE OFFICER, VIJAYA BANK, HEAD OFFICE NO.41/2, M G ROAD, BANGALORE-560001. PRESENTLY MERGED WITH M/S. BANK OF BARODA A BOADY CORPORATE CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKING)ACT 1970, HAVING ITS HEAD OFFICE AT BARODA BHAVAN, R C DUTT ROAD, ALAKAPURI, BARODA-390007, GUJARAT, REPRESENTED BY GENERAL MANAGER ZONAL OFFICE, BANGALORE.

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…PETITIONER (BY SRI UDAYA SHANKAR RAI P,ADVOCATE) AND: SRI B CHANDRAHASA RAI, AGED ABOUT 74 YEARS, S/O LATE MANHANA RAI, NO.176/9/2, 2^ND CROSS, WILSON GARDEN, BANGALORE-560027.

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…RESPONDENT

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(BY SRI RANJAN SHETTY, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE IMPUGNED ORDER DATED 27.12.2019 PASSED BY THE APPELLATE AUTHORITY UNDER PAYMENT OF GRATUITY ACT

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HC-KAR

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1972 AND DY.CHIEF LABOUR COMMISSIONER, (CENTRAL), BANGALORE, PRODUCED AS ANNEXURE -K.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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Heard the learned counsel appearing for the petitioner

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and the learned counsel appearing for the respondent.

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This petition is filed assailing the order passed by the Appellate Authority under the Payment of Gratuity Act, 1972 (for short 'Act, 1972') which in turn has set aside the order passed by the Controlling Authority and directed the petitioner to pay gratuity to the respondent.

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3. Certain facts are admitted.

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On 06.06.2006, the petitioner-Bank issued a charge sheet alleging misconduct against the respondent-employee. On 31.08.2006, the respondent- employee attained age of superannuation. The disciplinary proceeding continued against the respondent-employee even after his superannuation and in terms of order dated 19.12.2007, the

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penalty of dismissal was imposed on the respondentemployee. The said order is not called in question by the respondent-employee.

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On 18.08.2008, the petitioner issued a showcause notice to the respondent as to why the gratuity payable to respondent should not be forfeited. This apparently is pursuant to the finding of guilty in the domestic inquiry. On 08.09.2008, the respondent submitted his reply.

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Overruling the objections of respondent, on

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10.10.2008, the gratuity payable to respondent-employee is forfeited.

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Nine years later i.e., 21.09.2017, respondent filed an application in Form No.1 to claim gratuity. Later, on 30.10.2017, respondent filed Form No.N before the Controlling Authority under the Act, 1972. The petitioner was notified about the application. The petitioner filed objection to the said application.

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The Controlling Authority rejected the Form No.N/ application filed by the respondent on the premise that the application is filed 9 years after the forfeiture and sufficient grounds are not made out to allow the application after 9 years.

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Aggrieved by the said order, the respondent filed

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an appeal before the Appellate Authority.

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The Appellate Authority has allowed the appeal and directed the petitioner to pay the gratuity. The Appellate Authority concluded that the petitioner-employer could not have imposed the penalty of termination after the age of superannuation. The Appellate Authority held that gratuity cannot be forfeited after the age of superannuation and directed the payment.

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Aggrieved by the aforementioned order, the petitioner-employer is before this Court.

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Learned counsel appearing for the petitioneremployer would submit that the Appellate Authority has

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condoned the delay of 9 years in filing the claim before the Controlling Authority and that is erroneous inasmuch as sufficient grounds are not made out by the respondentemployee.

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In addition, it is also his further submission that the Appellate Authority has proceeded to hold that the order of termination is illegal after the age of superannuation by the respondent-employee and this is contrary to the law wherein the Apex Court has held that in case the service rules enable domestic enquiry post superannuation, same is permissible.

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It is further his submission that when the Appellate Authority passed the order, post superannuation, whether the gratuity can be forfeited or not was the question which was pending consideration before the Apex Court and later the Apex Court has held that forfeiture of gratuity post superannuation is permissible under law.

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This being the position, learned counsel would submit that the impugned order passed by the Appellate

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Authority is erroneous. Thus, he would urge that the petition has to be allowed.

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Learned counsel appearing for the respondentemployee would submit that in terms of the impugned order, the Appellate Authority has assigned valid reasons as to why the delay of 9 years is to be condoned in considering the respondent's application for payment of gratuity. In addition, it is also submitted that when the Appellate Authority passed the order, the Apex Court in one of the judgments has taken a view that forfeiture of gratuity post superannuation is impermissible and said judgment is followed by the Appellate Authority. Hence, learned counsel would urge that there is no merit in the petition and the petition be dismissed.

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The Court has considered the contentions raised

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at the bar and perused the records.

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The fact that the gratuity is forfeited after the respondent-employee was terminated is borne out from the record. There is no dispute on that. It is also not in dispute that the respondent- employee made an application for

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payment of gratuity 9 years after the forfeiture. However, the respondent-employee makes a claim that he has assigned sufficient reasons as to why the application is not filed immediately after the forfeiture.

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The Controlling Authority has dismissed the application on the ground that sufficient reasons are not forthcoming as to why the application is not filed within a reasonable time. However, the Appellate Authority has condoned the delay and in addition to that the Appellate Authority has concluded that the forfeiture of gratuity post superannuation is impermissible.

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It is pointed out Chairman-cum- Managing Director, Mahanadi Coalfields Limited. vs Sri Rabindranath Choubey¹ the Apex Court has held that forfeiture of gratuity, even after superannuation is permissible. It is to be noticed that the said judgment was delivered on 27.05.2020, whereas the Appellate Authority has passed the order on 27.12.2019 and the issue whether

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1 Civil Appeal No. 9693 of 2013

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the forfeiture of gratuity is permissible post superannuation was pending consideration before the Apex Court when the matter was pending before the Appellate Authority.

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The Court is of the view that the Appellate Authority could not have held that forfeiture of gratuity post superannuation is impermissible.

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The next question is whether the petitioner has made out a case to deny the gratuity and forfeiture.

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It is to be noticed that both Controlling Authority and the Appellate Authority have not considered the case on merits. The Controlling Authority dismissed the application on the ground of delay. The Appellate Authority allowed the appeal on the premise that the forfeiture post superannuation is impermissible.

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Thus, it is apparent that the matter requires reconsideration on the question whether the forfeiture is justified or not and.

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Hence, the following:

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HC-KAR

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ORDER

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(i) The Writ Petition is allowed and remanded .

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(ii) The impugned order dated 27.12.2019 passed by the Appellate Authority in Appeal No.36/(405)/2019-B1 is set aside.

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(iii) The order passed by the Appellate Authority, except the portion of the order condoning the delay. It is made clear that the order condoning the delay in making a claim is not disturbed.

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(iv) The matter is remitted to the Controlling Authority for fresh consideration. The Controlling Authority shall consider the case on merits. However, the claim shall not be rejected on the ground of delay.

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(v) All other contentions on merits are to be decided by the Controlling Authority as the Court has not expressed anything on the merits of the matter.

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(vi) In case of any directions to pay the gratuity, the Appellate Authority is competent to decide, for the reasons to be recorded, as to

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whether the interest on the delayed payment of gratuity is to be denied or not. Said decision is to be taken by taking into consideration the facts and circumstances of the case.

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(vii) The parties shall appear before the Controlling Authority on 16.03.2026 without any further notice.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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GVP

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List No.: 2 Sl No.: 16

The Chief Executive Officer v. Sri B Chandrahasa Rai

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The Chief Executive Officer v. Sri B Chandrahasa Rai

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