COMMON CAV JUDGMENT

1. SCA No.3569 of 2018 has been filed by Bank of Baroda, the employer challenging the orders of the Controlling Authority under the Payment of Gratuity Act, 1972 dated 3.5.2017 and the order of the appellate authority dated 27.12.2017 confirming the order of the Controlling Authority by which the Controlling Authority directed the petitioner – Bank to pay gratuity of Rs.10,00,000/- alongwith simple interest at 10% p.a. from the date of entitlement of gratuity to actual date of payment to the respondent employee.

2. SCA No.15055 of 2019 has been filed by the employee challenging the order of dismissal dated 12.2.2016 by which the employee petitioner was dismissed from the services of the Bank. He has also challenged the communication dated 23.6.2016 by which his application for compassionate allowance was rejected.

3. Since both the petitions, that of the employer Bank and that of the employee who challenged the order of dismissal are to be heard together and the facts are overlapping, they are considered as under:

3.1. The employee Shri Amrathbhai Patel was appointed as a Clerk with the Bank on 1.4.1978. He was thereafter promoted as Senior Manager and reached the age of superannuation on 31.5.2015. Before the petitioner reached the age of superannuation, the Bank issued a letter dated 13.5.2015 informing the employee that they were invoking Regulation 20(3)(iii) of Bank of Baroda Officers’ Service Regulations, 1979, inasmuch as, since the petitioner employee was reaching superannuation on 31.5.2015, and since disciplinary proceedings have been initiated against him by virtue of a charge-sheet dated 27.1.2015, as per Regulation 20(3)(iii) though the employee would retire on 31.5.2015, the disciplinary proceedings will continue as if the employee was in service until the proceedings are concluded and a final order is passed in respect thereof. The communication dated 13.5.2015 further stated that the employee shall not be entitled to the payment of retirement benefits except his own contribution to the provident fund till the conclusion of the proceedings and the final decision being communicated to him. The employee therefore retired on superannuation with the inquiry continuing in accordance with Regulation 20(3) of the Regulations.

3.2. On 12.2.2016, the departmental inquiry was concluded based on the charge-sheet dated 7.1.2015 and on 12.2.2016 a penalty of dismissal was imposed on the employee. The order of 12.2.2016 indicated that the employee was dismissed from the Bank services which shall ordinary be a disqualification for future employment. The period of suspension shall also be treated as period not spent on duty. Since the employee was dismissed from service, the provisional pension that was being paid to him had been stopped in view of the order of dismissal. On 23.6.2016, the employee requested for compassionate allowance under Regulation 31 of the Bank of Baroda Employees (Pension) Regulations, 1995. That request for compassionate allowance was rejected on 23.2.2016 by the Bank. The employee approached the Controlling Authority under the Payment of Gratuity Act by filing an appropriate form under the Payment of Gratuity Rules on 1.8.2016. In the application so filed and the Annextures thereto it was stated that the employee had retired on superannuation on 31.5.2015. The Bank filed its reply before the Controlling Authority on 17.10.2016 and 15.2.2017. The Controlling Authority by an order of 3.5.2017 held that the employee was entitled to being paid the amount of gratuity holding that provisions of the Gratuity Act particularly Section 4(6)(a) thereof entitled the employer to forbid gratuity in case the employee was terminated from the services. The Controlling Authority held that the employee had superannuated from the services and therefore it was not possible for the employer Bank to invoke Section 4(6) of the Act and since the employee was allowed to retire on superannuation, he was entitle