Tripura High Court
Mr. Lala Darlong vs Tripura Gramin Bank And Ors on 25 September, 2018
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.712 of 2017
Mr. Lala Darlong,
son of late N. Singa Darlong,
resident of village Kanchanchara,
P.O. Kanchanchara, District Dhalai Tripura,
PIN.799266 ----Petitioner
Versus
1. Tripura Gramin Bank and Ors.
(to be represented by the Chairman)
Head Office, Abhoynagar, Agartala,
Tripura West, Pin-799005
2. The Chairman,
Tripura Gramin Bank,
Head Office, Abhoynagar, Agartala,
Tripura West, Pin-799005
3. The Board of Directors,
Tripura Gramin Bank,
Head Office, Abhoynagar, Agartala,
Tripura West, Pin-799005
---- Respondents
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Advocate For Respondent(s) : Mr. A. Roy Barman, Advocate Whether fit for reporting : NO HON'BLE MR. JUSTICE S. TALAPATRA Judgment & Order (Oral) 25/09/2018 Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. A. Roy Barman, learned counsel appearing for the respondent.
[2] The petitioner was proceeded on the charge of misconduct as detailed in the charge-sheet No.TGB/P&A/VIGIL/F.220/192-96/09 dated 13.03.2004 (Annexure-A to the writ petition). As the petitioner denied those articles of charges, an inquiry was instituted. Page 2 of 8 In the enquiry the petitioner was found guilty of the charge of misconduct and by the order dated 12.03.2011 under No.TGB/VIGIL/F- 220/Con.1/11/2011 dated 12.03.2011 (Annexure-B to the writ petition) the petitioner was awarded major penalty of compulsory retirement under Regulation 38 of the Tripura Gramin Bank (Officers and Employees) Service Regulations, 2001 w.e.f. 14.03.2011.
[3] The petitioner had filed an appeal to the Board of Directors against the said order dated 12.03.2011, but the said appeal dated 17.03.2011, (Annexure-C to the writ petition) was dismissed.
Thereafter, Tripura Gramin Bank in response to the notice served by the petitioner on 15.12.2015 has brought to the notice of the petitioner that against 7 (seven) personal loan accounts, he had total outstanding of Rs.5,38,572.41/- as on various dates, as shown in the communication dated 28.12.2015. The petitioner was advised to repay the said outstanding with interest accrued thereon to avoid further action. But the petitioner did not pay the said amount. On the contrary he had urged the Board of Directors, Tripura Gramin Bank to release gratuity, leave encashment benefit, group insurance benefit and other benefits for his retirement. The said demand was made on 21.08.2017, but no benefit has been released as yet. Being persuaded by the circumstances, the petitioner has approached this court by filing this writ petition under Article 226 of the Constitution of India for direction on the bank-respondents to cause full and final payment of gratuity, leave encashment and group insurance benefit with interest @12% per annum from the date when such benefit fell due till the date of payment.
Page 3 of 8[4] The bank respondents filed their reply on 20.07.2007 contending that the petitioner's misconduct was related to misappropriation of the bank's money and for violation of lending norms of the bank. The petitioner was awarded the penalty of compulsory retirement. The appeal preferred therefrom was also dismissed. The order in the appeal passed on 03.04.2012 and the same has not been challenged by the petitioner. As a result, the order of penalty of compulsorily retirement has reached its finality.
In para-8 of the reply, the respondents have asserted that under the provisions of Section 4(6) of the Payment of Gratuity Act, 1972 and Regulation 69(3)(e) of the Tripura Gramin Bank (Officers and Employee) Services Regulations, 2001, the bank has authority to recover the outstanding of the loan account from the gratuity then benefits. The said regulation was duly published in the Tripura gazette for wide circulation. It has been further asserted that as per the Tripura Gramin Bank (Officers and Employees) Service Regulations, 2001, the petitioner is not eligible to get any other benefits after imposition of punishment.
[5] Those averments have been further supported by the additional affidavit as filed with leave of this court. The respondents have given details of the outstanding as in 10.04.2018 in the said additional affidavit against each of the personal loan accounts of the petitioner. For purpose of reference, para 1 of the additional affidavit filed by the respondents is reproduced hereunder:
1. That, the petitioner obtained loan from Tripura Gramin Bank during his service carrier and seven numbers of loan account is lying outstanding in the name of the petitioner i.e. Sri Lala Darlong and the particulars of said loan accounts are stated below:-Page 4 of 8
Account No. Outstanding upto 10.04.2018
i. 8085301802008 Rs.56,557/-
ii. 8082301601245 Rs.29,420/-
iii. 8077301902777 Rs.50,317/-
iv. 8082301600978 Rs.2,55,711/-
v. 8085211700037 Rs.2,05,642/-
vi. 8085301802009 Rs.43,251/-
vii. 8085302819040 Rs.24,944/-
Gross Total = Rs.6,65,842/-
[6] It is apparent that the gross liability has reached to
Rs.6,65,842/-.
Mr. Samarjit Bhattacharjee, learned counsel for the petitioner has submitted that the action of the respondents by adjusting the GPF money against the outstanding of the loan account is grossly illegal, particularly in view of the protection of gratuity provided under Section 13 of the Payment of Gratuity Act, 1972. For reference, Section 13 of the said is extracted hereunder:
"13. Protection of gratuity. - No gratuity payable under this Act [and no gratuity payable to an employee employed in any establishment, factory, mine, oilfield, plantation, port, railway company or shop exempted under Section 5] shall be liable to attachment in execution of any decree and order of any civil, revenue or criminal Court."
[7] Mr. Bhattacharjee, learned counsel has further referred to the provision of Section 14 which deals with the overriding effect of the payment of the Gratuity Act, 1972. According to Mr. Bhattacharjee, learned counsel, even under Regulation 69 of the Tripura Gramin Bank (Officers and Employees) Service Regulation Act, 2001 the respondents cannot adjust any amount from the gratuity against the Page 5 of 8 outstanding loan amount. For purpose of reference, the Regulation 69 is extracted hereunder:
"69. Gratuity
1. An officer or employee shall be eligible for payment of gratuity in accordance with the Sub-regulation 2 hereunder.
2. The amount of gratuity payable to an officer or employee shall be either as per the provisions of the Payment of Gratuity Act, 1972 or as per Sub-
Regulation(3) hereunder whichever is higher.
3. (i) Every officer or employee shall be eligible for gratuity on-
(a) Retirement (b) Death (c) Disablement rendering him unfit for further service as
certified by a Medical Officer approved by the Bank, or
(d) Resignation after completing 10 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.
Provided that in respect of an employee there shall be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank and in that case to that extent only.
(ii) The amount of gratuity payable to an officer or employee shall be one months pay for every completed year of service or part thereof in excess of six months subject to a maximum of 15 months' pay.
Provided that where an officer or employee has completed more than 30 years of service, he shall be eligible by way of gratuity for an additional amount at the rate of one half of a month's pay for each completed year of service beyond 30 years.
Provided further that in respect of an officer the gratuity is payable based on the last pay drawn:
Provided also that in respect of an employee pay for the purpose of calculation of the gratuity shall be the average of the basic pay (100%), dearness allowance and special allowance and officiating allowance payable during the 12 months, preceeding death, disability, retirement, resignation or termination of service, as the case may be."
Regulation 69 does not obfuscate but provide that there shall be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss to the bank and Page 6 of 8 in that case too, to the extent of loss only. Mr. Bhattacharjee, learned counsel has argued that in the departmental proceeding he has not held liable for any loss to the bank by misconduct. [8] The main-stay of the charge was that the petitioner did violate certain norms in according the bank loan. No financial liability as punishment has been awarded against the petitioner. Thus, Mr. Bhattacharjee, learned counsel has contended that even under Regulation 69 no recovery is permitted.
[9] In reply what Mr. Bhattacharjee, learned counsel has contended, Mr. A. Roy Barman, learned counsel has argued that for breach of the banking norms, the bank has suffered huge financial loss. That apart, the petitioner took personal loan time to time against his 7 loan accounts. On scrutiny, the respondents have found that a sum of Rs.6,65,842/- is shown as the outstanding against those loan accounts. Tripura Gramin Bank can close those loan accounts by adjusting the outstanding from the amount of gratuity. The respondents have further submitted that unless the said amount is adjusted for the petitioner and the bank respondents shall be deprived of realizing the said outstanding.
[10] According to Mr. A. Roy Barman, learned counsel, proviso immediately below to the provisions of Section 69 does empower the bank respondent to realize the said outstanding in the loan account. [11] On the face of those contentions, a solitary question which emerges for consideration of this court is that-whether the bank- respondents can recover the outstanding as shown in the personal loan accounts of the petitioner to the extent of Rs.6,65,842/- as on Page 7 of 8 10.04.2018 for gratuity. Even Section 13 of the Payment of Gratuity Act, 1979 may not have any direct bearing in the present context inasmuch as that section creates prohibition against the courts from execution of the decree against the amount of gratuity. However, the bank respondents have applied the provisions of Regulation 69 of the Tripura Gramin Bank (Officers and Employees) Service Regulation, 1961 as reproduced above.
[12] According to the bank-respondents they are competent to adjust the outstanding against the amount of gratuity, proviso below the Regulation 69 (3) only authorizes the bank-respondents to adjust the amount of gratuity where for the misconduct, financial loss has been occasioned to the bank and in that case, to that extent only. [13] There is no dispute that in the departmental proceeding, no finding has been returned to the effect that for misconduct of the petitioner, Tripura Gramin Bank has suffered the loss of a definite amount. Moreover, what has surfaced from the reply filed by the bank- respondents is that they are inclined to recover the said outstanding to the extent of Rs,6,65,842/- registered against 7 (seven) personal loan accounts of the petitioner. Outstanding as registered in the personal loan accounts has not accrued for any misconduct of the petitioner. Even the respondents did not assert whether the petitioner was paying the loan regularly or not. Mere outstanding, not for act of default, even cannot be charged to be recovered under any process.
According to this court, the respondents are not entitled to recover the amount of Rs.6,65,842/- from the gratuity of the petitioner. At this stage, Mr. A. Roy Barman, learned Addl. P.P. has Page 8 of 8 submitted that the bank respondents could not recover any amount as yet.
[14] Be that as it may, the respondent shall not recover the outstanding of the loan from the gratuity. The respondents have other remedies, if there is a real outstanding against the loan accounts. If the petitioner in his wisdom is inclined to adjust the full or any part of that gratuity against the loan account he may do so voluntarily, not under any compulsion. In addition thereto, the respondents are directed to release the gratuity and other benefits as entitled to the petitioner within 2 (two) months from the date of receipt of a copy of this order. The bank-respondents may insist for creating security against the outstanding in the loan accounts. Even they may deduct from other benefits to adjust the outstanding in full or part, before the amount is released.
With this observation and direction, this writ petition stands allowed to the extent as stated above.
There shall be no order as to costs.
JUDGE Amrita