Full Judgment
ORDER
SHEET APO No.284 of 2012 With WP No.1562 of 2010 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE PUNJAB NATIONAL BANK Appellant Versus JYOTIRMAY ROY Respondent BEFORE: The Hon'ble JUSTICE TAPEN SEN The Hon'ble JUSTICE DIPAK SAHA RAY Date :
17. h December, 2012.
For Appellant : Mr.B.R.
Bhattacharyya, Sr.Advocate Mr.Soumya Majumdar, Advocate Ms.Dolan Dasgupta, Advocate For Respondent : Mr.Anjan Bhattacharyya, Advocate The Court : This Appeal is directed against the Judgment and Order dated 3.4.2012 passed in WP No.1562 of 2010 whereby and whereunder the Learned Trial Judge, holding that the services of the Petitioner was not terminated under the PNB Officer Employees’ (Discipline & Appeal) Regulations, 1977, was pleased to hold that since the Petitioner’s services had been compulsory retired and not terminated, therefore, the Respondents should to release the Bank’s contribution to the Provident Fund annum.
as well as Gratuity along with interest at the rate of 8.5% per The learned Trial Judge also directed the release of Leave Encashment with a further observation that the dues to be paid to the Petitioner shall be calculated from the date on which the punishment of compulsory retirement had been imposed upon the Petitioner and that they shall be released within a period communication of the order.
of eight weeks from the date of Mr.B.R.
Bhattacharyya, learned Senior Counsel appearing for the Appellant Bank has stated that the admitted fact is that the Petitioner was compulsorily retired from services.
reefers to paragraph 3 of the Writ Petition which says He that the Petitioner in his long career never suffered any kind of humility and/or punishment except reduction of two increments w.e.f.25.1.2010 till the date of service retirement when commission the of on 31.1.2010 Management some of and the irregularities the compulsory Respondents and lapses retirement found him his part of from guilty as of Senior Manager at the fag end of his career and after serving the charge-sheet upon the Petitioner and not being satisfied regarding the reply to such, the Bank Auithorities directing retirement the decided to impose punishment by issuing an order retirement from superannuation.
services of the just Petitioner before two by way days of of compulsory his normal The order dated 29.1.2010 has been brought on record and it says that after careful consideration of the Enquiry Report along with the submissions pertaining to the enquiry proceedings in relation to the charge-sheet, penalty effect of in it had compulsory terms of been decided retirement Regulation to from 4(h) impose Bank’s of the the punishment services PNB with Officer of major immediate Employees’ (Disciplinary and Appeal) Regulation, 1977.
It appears thereafter, the Petitioner had preferred an Appeal against the aforesaid order but the Appellants, while deciding the Appeal, rejected the same by their order communicated vide Letter dated 28.7,.2010.
It appears that the Petitioner thereafter on 9.9.2010 (see page 22 of the Paper Book) filed an application before the Circle Head of the Bank wherein, while referring to his order of punishment, he stated that as per wage revision and his option for pension in terms of Settlement/ Joint Note dated 27.4.2010, the Authorities may consider his pension option as per the Pension Regulations.
It appears that the said request was turned down by Letter dated 20.10.2010 (see page 23 of the Paper Book) which informed the Petitioner that in terms of the Pension Settlement dated 27.4.2010 Officers/Union Workmen, the option for Pension had been extended to only serving employees; to superannuate employees who had opted for VRS and families of the deceased employees /retirees and not to any other category.
It was further stated that since the Petitioner had been compulsorily retired from the Bank’s service, he was not eligible to opt for pension.It appears that the learned Trial Judge while passing the impugned Judgment firstly held at internal Page 5 of the said Judgment (see Running Page 198 of the Paper Book) as follows : “As such I do not find any fault on the part of the bank in rejecting the claim of the petitioner for not permitting him to come within the pension scheme, as he had admittedly applied for pension after punishment of compulsory retirement was imposed on him.
He was not a serving employee when the scheme for shifting to the pension regime became operational.”
From a perusal of the aforementioned finding it appears that the learned Trial Judge vindicated the Appellant Bank by saying that there was no fault on their part in rejecting the claim of the Petitioner by not permitting him to come within the Pension Scheme as he had admittedly applied for Pension after imposition of the punishment of compulsory retirement.
He there after observed that the Petitioner was not a serving employee when the Scheme for shifting, pension regime had become operational.
We are of the view that it is from this juncture that the learned Trial Judge misdirected himself.
We may, ere at this stage, referred to Circular No.4 dated 18.1.2001 (see Page 142 of the Paper Book) which clearly lays down the eligibility for Leave Encashment and Travelling Allowance and which, inter alia, states as follows :: “The eligibility for the benefits of leave encashment and travelling allowance to officers who have been imposed penalty under Regulation 4 of Officer Employees’(Discipline & Appeal) Regulations was examined by the Personnel Committee of Indian .”
.Banks Association and it has been advised that officers whose services are terminated or compulsorily retired as a punishment will not be entitled to the above benefits.
However, such officers who are retired under the circumstances mentioned in Regulation 19 of PNB Officers’ Service Regulations would be entitled to encash the accumulated Privilege Leaves and for the facility of travelling allowance on retirement.”
Upon a perusal of the aforementioned Circular of the Bank it is thus evident that a person who has been punished or compulsorily retired, will not be entitled to leave encashment and travelling allowance.
This Circular was in existence from 18.1.2001.
It was never withdrawn.
The Petitioner’s services came to be terminated as a result of compulsory retirement by imposing of a penalty w.e.f.29.1.2010 and therefore in terms of the said Circular, the Petitioner could not have been made entitled to pray for Leave Encashment or Travelling Allowance.
Now, in the Writ Petition, the Petitioner prayed for releasing pensionery benefits including Bank’s contribution to Provident Fund as well as Gratuity.
Unfortunately, under the relevant Circular of the Bank dated 16.1.1997 (see page 150 of the Paper Book) and in terms of Personnel Division Circular No.1565, there was a specific clause forfeiting Gratuity and it laid down that the Gratuity of an employee whose services had 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 damage or loss so caused and clause (b) lays down that the gratuity payable to an employee may be wholly or partially forfeited.
Learned Counsel for the Appellant has submitted that in the case of the Petitioner he was compulsorily retired and not terminated in service.
He took us to Paragraph 7 of the Judgment (see page
200) in which the learned Trial Judge has held that cessation of service on account of compulsory retirement has not been separately categorised to disentitle a delinquent officer from getting Leave Encashment benefits and therefore, in such a case and unless provided in Service Regulations, the Bank wrongly applied the provision relating to Clause 38 referred to above thereby depriving the Petitioner from the benefits of Leave Encashment.
We are of the view that the aforesaid interpretation of the learned Single Judge is not proper.
Any willful act of the employer by which the services of an employee is made redundant and/or comes to an end as a measure of punishment must always be considered to be an order of termination and therefore an order of compulsory retirement cannot be made an exception to the aforesaid principle.
Thus, in our considered opinion, by making a compulsory retirement to mean ordinary retirement thereby bringing him within the eligibility clause of Circular No.4 dated 18.1.2001 was not proper at all and we therefore are of the considered view that such a finding is erroneous.
Considering the aforementioned facts and circumstances we are of the view that the order of the learned Trial Judge cannot be sustained.
We would however, like to point out that under the Regulations (see Page 155 of the Paper Book) it has been clearly explained that Gratuity may be paid in case of termination of service but subject to the condition that the Officer has put in at least ten years of service in the Bank and provided that the termination is not way of dismissal or removal from service as punishment.
The said Explanation reads as follows : “Explanation: We have to clarify that gratuity may be paid in case of termination of service, subject to the condition that the officer has put in at least 10 years of service with the bank and provided that the termination is not by way of dismissal or removal from service as punishment.”
Under the circumstances, we are of the view that the order of the learned Single Judge cannot be sustained.
Accordingly, this Appeal is allowed and the said impugned
JUDGMENT / ORDER
dated 3.4.2012 passed in WP No.1562 of 2010 is hereby set aside.
There shall be no order as to costs.
Urgent Photostat Certified copy of this Judgment and Order be made available to the parties, if applied for, upon compliance of requisite formalities.
( TAPEN SEN, J msen (DIPAK SAHA RAY, J)