Court No. - 39
Case :- WRIT - A No. - 20622 of 2019 Petitioner :- Om Prakash Tiwari Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay Counsel for Respondent :- A.S.G.I.,Krishna Mohan Asthana
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed for a direction upon the respondent back to provide amount of gratuity and other retiral benefits due and payable to petitioner.
Perusal of records would go to show that petitioner was proceeded with departmentally by the respondent bank on charges of misconduct which led to passing of an order of dismissal on 02.08.1993. This order of dismissal has attained finality. Sri K.M. Asthana, learned counsel appearing for the respondent bank has placed reliance upon Rule 3(4) of the Chapter VIII of the General Conduct Rules which provides that an employee who has been dismissed on misconduct shall not be entitled for gratuity. The rules in that regard has been referred to in a recent judgment of the Apex Court in the case of Canara Bank and others Vs. Lalit Popli (Dead) Through L.Rs., AIR 2018 SC 70. Paragraph 7 and 8 of the judgment are reproduced hereafter:-
''7. Rule 12 of the Canara Bank Employees’ Gratuity Fund Rules (for short, ‘Gratuity Rules’), Clause 19 of the Canara Bank Staff Provident Fund Regulations, 1994 (for short, Provident Fund Regulations) and Rule 3(4) of Chapter VIII of the General Conduct Rules, governing the services of the employees fully support the action taken by the bank against the respondent in withholding the amount of gratuity and employer’s contribution towards provident fund.
8. Rule 3(4) of Chapter VIII of the General Conduct Rules states that “an employee who is dismissed for misconduct shall not be entitled to gratuity”.
Rule 12 of Gratuity Rules reads thus:
“Rule 12. Notwithstanding anything contained in the preceding Clauses where an employee has been dismissed for misconduct and such misconduct has caused financial loss to the Bank, he shall not be eligible to receive the gratuity to the extent of the financial loss caused to the Bank.” Likewise, Clause 19 of Provident Fund Regulations reads thus:
“Clause 19. If a member causes financial loss to the Bank by misconduct, fraud, gross negligence or other conduct of like nature and is dismissed from the service of the Bank or is permitted to leave the service of the Bank in consequence of such misconduct, fraud, gross negligence or other like conduct, the amount of such financial loss sustained by the Bank shall be deduced by the Trustees from the Bank’s contribution out of the amount due to the member and be paid to the Bank.” Special Rules relating to gratuity, mentioned supra, makes it amply clear that the employee who has been dismissed for his misconduct and if such misconduct has caused financial loss to the bank, he shall not be eligible to receive the gratuity to the extent of financial loss caused to the bank. So also, Clause 19 of the Provident Fund Regulations permits the bank to deduct the payment of provident fund to the extent of financial loss caused to the bank from the bank’s contribution. Both the aforementioned Clauses are plain and simple. They are unambiguous. Since Rule 12 of the Gratuity Rules and Clause 19 of the Provident Fund Regulations permit the bank to withhold gratuity and deduct the bank’s contribution towards provident fund, in such matters, the bank was justified in recovering the amount of financial loss sustained by it, which was caused by the respondent, from out of the gratuity and employer’s contribution towards provident fund payable to the respondent/employee.
The applicability of the aforesaid rules is not in question. The validity of the rules are also not questioned. In that view of the matter once the petitioner has been dismissed from service on a proved charges of misconduct, he cannot come up with a claim for payment of gratuity and other benefits.
Writ petition lacks merits and is, accordingly, dismissed.
Order Date :- 19.12.2019 Abhishek Singh