The absence of a forfeiture order at the time of dismissal entitles the employee to his full provident fund amount, including employer contributions.

O R D E R

Heard both sides.

2.The writ petitioner was employed as Branch Manager in the respondent Bank. He was dismissed from service vide order dated 29.06.2010 passed by the Assistant General Manager / second respondent herein. Aggrieved by the same, the petitioner filed an appeal before the third respondent. The appeal was also dismissed on 11.03.2011. The petitioner wants this Court to direct the respondents to grant him the petition-mentioned service benefits. The case of the employer is that since the petitioner by his fraudulent acts had caused loss to the bank to the tune of almost Rs.4 Crores of Rupees, he has to be denied relief.

3.The question that calls for consideration is whether the petitioner is entitled to payment of gratuity and provident fund amount with interest.

4.As rightly pointed out by the learned standing counsel for the bank, the question of disbursing gratuity may not really arise in view of the decision of the Hon'ble Supreme Court reported in (2020) 18 SCC 71 (CMD, Mahanadi Coal Fields Ltd., V. Rabindranath Choubey). As regards the payment of provident fund amount, in the counter affidavit, it has been clarified that the employee's contribution has already been remitted to the petitioner's savings bank account and that he can withdraw the same. It the account has become dormant, it is open to the petitioner to activate the same and withdraw his contribution to the tune of Rs.8,02,062/- with interest. This stand of the employer is placed on record. In taking such a stand, the employer has not given any special concession. It is in consonance with the settled legal position. For instance, in the repealed Income Tax Act, 1922, Chapter 9 A contained special provisions relating to certain classes of provident funds. Section 58C contained the conditions to be satisfied by a recognised provident fund. It provided that the employer shall not be entitled to recover any sum whatsoever from the fund, save in cases where the employee is dismissed for misconduct or voluntarily leaves his employment otherwise than on account of ill-health or other unavoidable cause before the expiration of the term of service specified in this behalf in the regulations of the fund. In such cases the recoveries made by the employer shall be limited to the contributions made by him to the individual account of the employee, and to interest (simple and compound) credited in respect of such contributions and accumulations thereof, in accordance with the regulations of the fund. Section 2(38) of the Income Tax Act, 1961 defines “recognised provident fund”. It stipulates that it should be in accordance with the rules contained in Part A of the Fourth Schedule. Rule 4 (f) is also on the same lines as that of Section 58(C) of the 1922 Act.

5.When the learned counsel for the petitioner relied on the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the learned standing counsel drew my attention to Section 1 (3) of the Act. It is as follows :

“1.Short title, extent and application.— (1)This Act may be called the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952.]

......

[(3) Subject to the provisions contained in section

16, it applies-

(a) to every establishment which is a factory engaged in any industry specified in Schedule I and in which [twenty] or more persons are employed, and (b) to any other establishment employing [twenty]

or more persons or class of such establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf:

Provided that the Central Government may, after giving not less than two months’ notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment employing such number of persons less than [twenty] as may be specified in the notification.]

The Ministry of Labour and Employment issued notification bearing S.O 444(E) dated 10.02.2016 in exercise of the powers confer