Punjab-Haryana High Court
Uco Bank And Others vs Ashwani Kumar Sharma on 1 February, 2010
Bench: Adarsh Kumar Goel, Alok Singh
IN THE HIGH COURT OF PUNJAB AND
HARYANA AT CHANDIGARH
LPA No.191 of 2006 (O&M)
Date of decision:1.2.2010
UCO Bank and others
-----Appellants
Vs.
Ashwani Kumar Sharma
-----Respondents
CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE ALOK SINGH
Present:- Mr. Sudhir Mittal, Advocate for the appellants.
None for the respondent.
Adarsh Kumar Goel,J.
1. This appeal has been preferred against order of learned Single Judge setting aside withholding of gratuity and leave encashment. Learned counsel for the appellants states that though 1/3rd cut in pension was also set aside by the learned Single Judge but liberty having been given to pass fresh order in that regard, such speaking order having been passed separately, the appellants have no grievance in this appeal in that LPA No.191 of 2006 (O&M) 2 regard. Thus, only surviving issue is validity of withholding of gratuity and leave encashment. At the time of admission of the appeal, 50% of the amount of gratuity and leave encashment was ordered to be paid. Learned counsel for the appellants states that the amount has already been paid.
2. The respondent served the appellant respondent-Bank for about 28 years till the order of compulsory retirement was passed against him on 31.7.1997. Order of compulsory retirement was punitive order preceded by charge sheet and enquiry in which misconduct alleged against him was proved. This led to cut in pension and forfeiture of gratuity and leave encashment amount. The respondent filed writ petition challenging withholding of gratuity and leave encashment.
3. The bank contested the claim for gratuity and leave encashment by submitting that gratuity and leave encashment were not payable to the respondent in view LPA No.191 of 2006 (O&M) 3 of provisions of Service Regulations 1979 and Disciplinary and Appeal Regulations, 1976.
4. Learned Single Judge held that Regulation 46 under which gratuity was withheld, was not applicable. The said provision was applicable to punitive termination and not to punitive retirement. Similarly, Regulation 38 did not entitle the appellants to withhold leave encashment.
5. We have heard learned counsel for the appellants.
6. Learned counsel for the appellants submits that Regulations 46 and 38 had not been correctly appreciated by learned Single Judge and the said regulations justified withholding of gratuity and leave encashment.
7. We do not find any merit in this submission. The regulations in question are as under:-
"46(1) Every Officer, shall be eligible for gratuity on:-
a) retirement
b) death LPA No.191 of 2006 (O&M) 4
c) disablement rendering him unfit for further service as certified by a medical officer approved by the Bank;
d) resignation after completing ten years of continuous service; or
e) termination of service in any other way except by way of punishment after completion of 10 years of service."
"38. Lapse of Leave. Save as provided below, all the leave to the credit of an officer shall lapse on resignation, retirement, death, discharge, dismissal or termination; Provided that where an officer retires from the bank's service he shall be eligible to be paid a sum equivalent to the emoluments of any period, not exceeding 240 days, of privilege leave that he had accumulated. Provided further that where an officer dies while in service, there shall be payable to his legal representatives, a sum equivalent to the emoluments for the period, not exceeding 240 days, of privilege leave to his credit as on the date of his death."LPA No.191 of 2006 (O&M) 5
8. A perusal of above shows that Clause (e) of Regulation 46 above which has been relied upon by learned counsel for the appellants cannot apply to the case of compulsory retirement Similarly, First Proviso to Regulation 38 clearly shows that on retirement, an officer is entitled to leave encashment. There is no provision for withholding gratuity and leave encashment in the case of compulsory retirement.
9. We, thus, do not find any ground to interfere with the view taken by learned Single Judge.
10. The appeal is dismissed.
(Adarsh Kumar Goel)
Judge
February 1, 2010 (Alok Singh)
'gs' Judge