2010 Supreme(Bom) 510

2010(4) ALL MR 747
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
F. I. REBELLO & A. A. SAYED, JJ.
Shri. Ramchandra S. Joshi – Appellant
Vs.
Bank of Baroda – Respondent
Writ Petition No.636 of 2002
Decided on : 5th April, 2010.

Headnote:Bank of Baroda Officers Employees (Conduct) Regulations, 1976 - Regulations 3 and 24 - Payment of Gratuity Act, 1972, Sections 4(6), 6(4)(b) - Constitution of India, Articles 14, 16 and 226 - Dismissal from service - Misconduct - Resulted in loss of Rs. 149 lacs to bank - Amount of loss directed to be recovered from his provident fund and gratuity etc. - Challenged - Held - Principles of natural justice followed by authorities - High Court cannot exercise writ jurisdiction to correct simple errors - No case for interference - Petition dismissed. - In these circumstances, the question is whether the respondent bank could have withheld the gratuity or deducted the amount towards the loss suffered. In the instant case, insofar as causing loss to the bank is concerned, the disciplinary authority had given notice to the petitioner in the matter of issue of loss occasioned to the bank. Thereafter, the petitioner replied to the same. The Disciplinary Authority recorded a finding and directed forfeiture of the employer’s contribution of provident fund and the gratuity from the terminal benefits payable to the petitioner. Section 4(6) by itself specifically does not provide for a show cause notice in the matter of forfeiture of gratuity. But considering that forfeiture of gratuity involves a civil liability, and having civil consequences, as such the principles of natural justice would require it to be followed. Thus an opportunity must be made available to the delinquent employee to give his say as to why his gratuity should not be forfeited. In the instant case, this is not a case where money is sought to be recovered on account of establishment of minor misconduct, but on account of major misconduct under the conduct regulations. The petitioner, had an opportunity. Even in cases where there be some procedural infirmity, it is not necessary that the High Court must always in the course of its extra ordinary jurisdiction interfere with the action taken. The law on the subject has been summarised by the Supreme Court in U.P. State Sugar Corporation Ltd. v. Kamal Swaroop Tondon. The law as summarised notes that their powers under Article 226 of the Constitution of India are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily and that Court will not allow themselves to be turned into Court of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense. Though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. The writs referred to in Article 226 of the Constitution of India are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error, or excess has resulted in manifest injustice.

       In the facts of the present case, it is found that there is a clear finding that the respondent employer has suffered a loss to the extent of nearly Rs. 149 lacs. Suits have been filed for recovery of that amount of money. Misconduct against the petitioner has been established on that count. The petitioner, in his appeal, himself noted that if the loss is apportioned amongst all charge-sheeted employees, his liability at the highest would be Rs. 30 lacs. According to the petitioner himself the amount he would have received at the highest would have been Rs. 10 lacs. (This we are saying without having the actual figures on record and for the sake of argument.) It is, therefore, not possible to hold that there has been any manifest injustice in deducting the gratuity amount.

       Court had called on the counsel for the petitioner to inform the outcome of the proceedings of the civil suits filed for recovery of the amounts which had been transferred to the Debt Recovery Tribunal. Counsel has been unable to tell the Court the exact position.