HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 14571 OF 2019

O R D E R:

This Writ Petition is filed aggrieved by the order dated 27.05.2019 in Case No.PGA-3/2019 passed by the 1^st Respondent (Appellate Authority under Payment of Gratuity Act) dismissing the Appeal and confirming the order dated 28.12.2018 in P.G. Application No.12 of 2015 passed by the 2nd respondent (Controlling Authority under Payment of Gratuity Act) and directing petitioner – Syndicate Bank to pay gratuity of Rs. 10,34,315/- along with interest at Rs.10,34,315/- i.e. total amount of Rs.20,68,630/- to the 3^rd respondent.

2. The brief case of petitioner bank is that the 3rd respondent, who worked in the Officer Cadre in their bank filed an Application dated 13.04.2015 claiming gratuity on the ground that though he was terminated on 07.08.2008 from the service he is eligible for gratuity under the Payment of Gratuity Act, 1972 (for short, ‘the Act’), but it was not paid. Petitioner filed a reply raising a preliminary objection on 23.05.2015 that petitioner filed a Writ Petition assailing the penalty imposed under Syndicate Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976 and it is pending before this Court, hence, as per the law laid down in District Central Cooperative Bank Ltd. v. Ramanbhai M. Patel, (2011) 3LLJ 579, entitlement of employee to receive payment cannot be determined or adjudicated by the Controlling Authority under the Act. The Controlling Authority directed the Bank to file counter observing that the issue raised as a primary objection would also be dealt while disposing the Application. Accordingly, petitioner filed detailed objections along with documents relating to disciplinary action on 03.01.2017. It was specifically pleaded therein that the 3^rd respondent was served with the charge sheet dated 03.10.2006 for the alleged misconduct of failing to discharge his duties with utmost integrity, honesty, devotion and diligence and acted in a manner unbecoming of an Officer Employee and charges were proved in the departmental enquiry resulting in imposing punishment of dismissal vide proceedings dated 24.07.2008 and the Appeal preferred by him was dismissed by the Appellate Authority. Since the acts proved against the 3^rd respondent are criminal in nature and it can be termed as criminal breach of trust and they are involving moral turpitude, the competent authority vide Proceedings dated 21.11.2008 forfeited gratuity. Notices were served on him but he did not respond except stating that bank cannot issue notice at this stage.

It is stated, the 3rd respondent being an officer in Syndicate Bank, is governed by the Syndicate Bank Officer Employees' (Service) Regulations, Syndicate Bank Officer Employees' (Discipline & Appeal) Regulations, 1976 and Syndicate Bank Officer Employees' (Conduct) Regulations, 1976. An officer is entitled for gratuity as per Regulation 46 of the 1976 Regulations. As per Section 4(6)(b)(ii) of the Act, gratuity payable to the employee, whose service is terminated for any act which constitutes an offence involving moral turpitude provided that such offence is committed by him in the course of his employment, can wholly or partially be forfeited. Since the misconduct is in the nature of moral turpitude and Bank sustained financial loss, the case of the 3rd respondent squarely falls under Section 4(6)(b)(ii), and consequently, he is not entitled for gratuity as concluded by the Authority within the bank who deals about the payment of gratuity to its employees. It is not within the realm of the Disciplinary Authority or the Appellate Authority while passing orders in the proceedings under Syndicate Bank Officer Employees' (Discipline & Appeal) Regulations, 1976 to deal with regarding forfeiting gratuity amount.

It is brought to the notice of this Court that in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69, the Hon'ble Supreme Court held that a person acting beyond