Dismissed

Gopalakrishnan.K v. State Bank of India

Kerala HC7 Nov 2018WA/1940/2018

Case brief

AI extract

What is this about?

This intra-court appeal challenged a Single Judge's judgment denying terminal benefits, including gratuity, to a bank employee removed from service for misconduct involving moral turpitude. The Court dismissed the appeal, holding that due to the conviction for an offence involving moral turpitude and the delay in challenging the penalty, the appellant was not entitled to any terminal benefits.

What did the court decide?

The writ appeal was dismissed; appellant is not entitled to gratuity or earned leave encashment.

Gopalakrishnan.K Vs State Bank of India — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

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WA.No. 1940 of 2018

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AGAINST THE JUDGMENT IN WP(C) 21727/2018 DATED 13.8.2018 of HIGH COURT

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APPELLANT/PETITIONER:

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GOPALAKRISHNAN.K., AGED 63 YEARS (FORMERLY WORKING AS DY. MANAGER, SBT SERVICE BRANCH, THIRUVANANTHAPURAM, S/O.LATE SOORYANARAYANA, `SILA', MEN'S HOSTEL ROAD, AMBATTUPALAYAM, CHITTOOR COLLEGE P.O., PALAKKAD, PIN - 678104.

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BY ADVS. SRI.R.RANJITH SMT.MANJUSHA K SRI.M.T.SURESHKUMAR SRI.N.BIJA KRISHNA SRI.P.R.JAYASANKAR

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RESPONDENTS/RESPONDENTS:

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1 STATE BANK OF INDIA REPRESENTED BY ITS CHIEF GENERAL MANAGER, LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM - 695 012.

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2 THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM-695012

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3 THE DEPUTY GENERAL MANAGER(P.P.G. DEPARTMENT), STATE BANK OF INDIA, LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM-695012.

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BY ADV. SRI.P.RAMAKRISHNAN, SC, STATE BANK OF TRAVANCORE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

“C.R”

JUDGMENT

Ravikumar, J.

This intra court appeal is filed against the judgment dated 13.8.2018 passed by a learned Single Judge in W.P.(C)No.21727 of 2018. The unsuccessful petitioner is the appellant. While working as Deputy Manager in Sakthikulangara Branch of erstwhile State Bank of Travancore disciplinary proceedings were initiated against him for the alleged misconduct that constitute an offence under the Indian Penal Code, as well. Criminal proceedings were also initiated against him. Admittedly, in the criminal proceedings, based on the same set of facts involved in the disciplinary proceedings, he was convicted and sentenced. Unsuccessfully, the appellant took up the matter up to Hon'ble Apex Court. The fact is that he underwent the sentence imposed on him. In the disciplinary proceedings, after conducting enquiry, the disciplinary authority as per Ext.P1 order dated 2.6.1999 imposed penalty of dismissal from service of the Bank. Feeling aggrieved by the same the appellant took up the matter in appeal. The appellate authority as per Ext.P2 order dated 22.9.1999 dismissed the appeal, confirming the order of the disciplinary authority. Thereupon, the appellant moved the reviewing authority. The reviewing authority as per Ext.P3 order dated 1.8.2001 converted the penalty of dismissal

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from service to removal from service. Long later, the appellant filed a representation in the year 2017 seeking disbursement of the terminal benefits. It is the inaction on the part of the authorities in passing orders on his representation that constrained the appellant to move this Court by filing W.P.(C)No.21727 of 2018. The said writ petition was dismissed by this Court as per the impugned judgment and it is challenging the said judgment that the captioned appeal has been preferred.

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We have heard the learned counsel for the appellant and the learned standing counsel appearing for the respondents.

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Virtually, the appellant re-iterated the contentions unsuccessfully raised before the learned Single Judge, before us. The facts expatiated above would reveal that he was dismissed from service as per the order of the disciplinary authority on 2.6.1999 and it got confirmance with the order of the appellate authority under Ext.P2. However, the reviewing authority converted the penalty into removal from service as per Ext.P3. But, it is to be noted that though Ext.P3 order was passed by the reviewing authority as early as on 1.8.2001 the appellant had not chosen to challenge the same within a reasonable time. It is only after about one and a half decades since the imposition of the penalty that he filed Ext.P5 representation. It is a fact that in the

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meanwhile, he underwent the sentence imposed on him pursuant to the conviction passed on the same set of facts. It is thus obvious that it is after an inordinate delay of more than 15 years that the appellant wanted to re-open the disciplinary proceedings in a bid to escape the consequences of the orders passed by the authorities. The learned counsel appearing for the appellant contended that he had properly explained the delay. There cannot be any doubt with respect to the fact that delay of more than 15 years can only be taken as inordinate delay. When inordinate delay had occurred in a matter it cannot be permitted to be explained lightly. The contention of the appellant is that he could not challenge the proceedings because he was serving the sentence. The hollowness of the said contention would be revealed by looking into the admitted facts with respect to the criminal proceedings. He was convicted as per judgment dated 24.12.1999 in C.C.No.7 of 1997 of Special Court CBI-II, Ernakulam. He took the matter in appeal and in Crl.A.No.26 of 2000 this Court confirmed the conviction and modified the sentence. The substantive sentence was reduced to rigorous imprisonment for one year and it was ordered to be run concurrently. The judgment in Crl.A.No.26 of 2000 was passed on 19.6.2013 and admittedly, the appellant challenged it before the Hon'ble Apex Court unsuccessfully. The fact is that as against the judgment in C.C.No.7 of

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1997 passed on 24.12.1999 he approached this Court by filing Crl.A.No.26 of 2000. The reviewing authority passed Ext.P3 order on 1.8.2001. There is no case for the appellant that all throughout he was actually serving the sentence. In fact, he cannot be heard to contend that he was serving the sentence throughout as the sentence imposed on him pursuant to his conviction in C.C.No.7 of 1997 was only to undergo rigorous imprisonment for a period of three years and it is the said sentence which was modified by this Court and reduced it to one year. If the appellant could approach this Court for challenging the conviction and sentence imposed on him we are at a loss to understand as to what prevented him from challenging Ext.P3 order in the disciplinary proceedings. Shortly stated, the contention of the appellant is that it was owing to the fact that he was serving the sentence that he could not move this Court against Ext.P3 order would be belied by his own pleadings.

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The learned counsel further contended that even in such circumstances in the light of the decision in Jorsingh Govind Vanjari v. Divisional Controller Maharashtra (AIR 2017 SC 57) the appellant is entitled to get gratuity. The dictum of the said decision is that in order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving

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moral turpitude, going by the report of the domestic enquiry but also there must be termination on account of the alleged misconduct, constituting an offence involving moral turpitude. In this context, it is relevant to refer to the allegations which ultimately culminated in appellant's removal from service. Exts.P1 to P3 would reveal the allegations levelled against the appellant which ultimately culminated in Ext.P3 order of the reviewing authority. They would reveal that they pertain to purchase of cheques, sanction of consumer loans, the attempt to falsify and manipulate records, adoption of DBS method for sanction of loans. It is to be noted that the allegation is that the appellant had committed such misconduct while holding the post of Deputy Manager, MMGS-II. The allegations levelled against him were proved in the domestic enquiry. The appellant cannot be heard to contend that those allegations did not involve moral turpitude. Taking into account the fact that the appellant was then holding the post of Deputy Manager in the erstwhile State Bank of Travancore the said misconduct could not have been taken lightly and they were to be taken very seriously and in fact, were taken very seriously by the authorities as can be seen from Exts.P1 to P3. The disciplinary authority as also the appellate authority imposed a penalty of dismissal from service. True that, a lenient attitude was taken to certain extent,

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by the reviewing authority in converting the said penalty into removal from service. The said penalty of removal from service imposed as per Ext.P3 dated 1.8.2001 was not challenged by the appellant. After a long slumber he has now, chosen to file a representation only in the year 2017, that too, for disbursement of terminal benefits. Be that as it may, we will consider the question whether in the light of the decision in Jorsingh Govind Vanjari's case (supra) the appellant is entitled to the benefit.

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A mere perusal of the decision in Jorsingh Govind

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Vanjari's case would reveal that, that was a case where the disciplinary proceedings did not ultimately culminate in termination of the incumbent based on a proven misconduct constituting an offence involving moral turpitude. In the case on hand, admittedly, the proceedings culminated in the termination of the appellant and as noticed hereinbefore, the proven allegations of misconduct not only constitute a mere misconduct, but it also constituted an offence involving moral turpitude. In that context, the decision relied on by the learned counsel appearing for the respondents also assumes relevance viz., the decision of the Hon'ble Apex Court in Union Bank of India

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and others v. C.G.Ajay Babu and another (AIR 2018 SC 3792) .

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In paragraph 18 the Hon'ble Apex Court observed thus:-

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“It is not the conduct of a person involving moral turpitude that is required for forfeiture of gratuity but the conduct or the act should constitute an offence involving moral turpitude. To be an offence, the act should be made punishable under law. That is absolutely in the realm of criminal law. It is not for the Bank to decide whether an offence has been committed. It is for the court.”

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The recital in paragraph 20 also assumes relevance. It reads thus:-

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“In the present case, there is no conviction of the respondent for the misconduct which according to the Bank is an offence involving moral turpitude.”

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As noticed hereinbefore, in the case on hand, the offence alleged and

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proved constituted an offence involving moral turpitude and admittedly, for the same act which constituted offences under the Indian Penal Code he was convicted and sentenced. The appellant had already served the sentence. In the disciplinary proceedings the penalty of dismissal from service was converted into removal from service by the reviewing authority as per Ext.P3 order dated 1.8.2001. In such circumstances, we have no hesitation to hold that the decision relied on by the appellant does not fetch any benefit to the appellant and in fact, in the light of those decisions and the factual position obtained in the case on hand, the appellant cannot claim gratuity or any other terminal benefits.

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Lastly, the appellant contended that he is entitled to get the Earned Leave encashment. To fortify his contention he has relied on a judgment of the learned Single Judge of the High Court of Madras in W.P.(MD)No.1484 of 2016. There can be no doubt that the said decision is not binding on us. It appears that the learned Single Judge of the High Court of Madras took the view that when provident fund contribution was given to the petitioner there is no reason to deny him Earned Leave encashment. At the same time, we are of the view that in the light of Regulation 22 of State Bank of Travancore (Employees) Pension Regulation, 1995 which was applicable to the appellant, the punishment of removal from service shall entail forfeiture of entire past service. If the forfeiture of entire past service is the result of the application of Regulation 22, taking into account the fact that the appellant was removed from service, we are at a loss to understand as to how the appellant could say that he is entitled to get Earned Leave Encashment benefit. The appellant had not challenged Regulation 22 of State Bank of Travancore (Employees) Pension Regulation, 1995. In such circumstances, we are not inclined to accept the contention of the appellant made relying on the aforesaid decision to claim the benefit of earned leave encashment. Virtually, the learned Single Judge rightly considered the position of law and also the provisions of law while

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dismissing the writ petition. In the light of the said provision and that apart, in view of the facts obtained in this case, the appellant cannot seek for the said benefit as well.

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In short, on going through the impugned judgment, we do not find any reason to hold that the judgment is infected with any illegality or error of law warranting appellate interference. In the result, this appeal must fail. Consequently, it is dismissed.

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Sd/-

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C.T.RAVIKUMAR Judge

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Sd/- V.G.ARUN Judge

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TKS

Gopalakrishnan.K v. State Bank of India

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Gopalakrishnan.K v. State Bank of India

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