Punjab-Haryana High Court
State Bank Of Patiala vs Vishav Kumar Sharma on 21 April, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
LPA No. 727 of 2011 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
LPA No. 727 of 2011 (O&M)
Date of Decision: April 21, 2011
State Bank of Patiala ...Appellant
Versus
Vishav Kumar Sharma ...Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE T.P.S. MANN
Present: Mr. H.N. Mehtani, Advocate
for the appellant
Mr. Sushil Jain, Advocate
for the respondent-caveator
1. To be referred to the Reporters or not? yes
2. Whether the judgment should be reported
in the Digest?
M.M. KUMAR, J.
1. The instant appeal under Clause X of the Letters Patent filed by the State Bank of Patiala is directed against the judgment dated 07.02.2011 rendered by the learned Single Judge holding that an employee who has been removed from service would be entitled to pension and other retiral benefits as per Clause 6(b) of the memorandum of settlement signed between the Bank and the writ petitioner-respondent. It would be appropriate to set out the Clause 6 (a) to (d) of the bipartite settlement, which reads as under:
"6. An employee found guilty of gross LPA No. 727 of 2011 (O&M) -2- misconduct may:
(a) be dismissed without notice; or
(b) be removed from service with superannuation benefits i.e. Pension and/ or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or
(c) be compulsorily retired with superannuation benefits i.e. Pension and /or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or
(d) be discharged from service with superannuation benefits i.e. Pension and/ or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or"
2. The learned Single Judge interpreted the aforesaid Clause in favour of the writ petitioner-respondent and has held that the Clause clearly provides that removal with superannuation benefits is one of the punishment provided. In other words, on the language of the Clause, the employee LPA No. 727 of 2011 (O&M) -3- is held entitled to superannuation benefits. The view of the learned Single Judge is discernible from the following para of the judgment, which reads as under:
"A reading of the above clause would clearly show that while imposing a penalty of removal from service, the same could be with superannuation benefits i.e. pension and provident fund as would be due otherwise under the rules and regulations prevailing at that time. This is the precise punishment imposed on the petitioner. The punishment is as per the terms, which were agreed to between the parties and this may not be open to be read with any other regulations prevailing at that time. The respondents are apparently not reading the order of punishment correctly. The precise punishment imposed on the petitioner is as per Clause 6(b) of the Bipartite Settlement. Reading the same in a plain and simple language would convey a meaning that removal from service with superannuation benefits is the punishment which could be imposed. Further part of clause (b) only clarifies the benefits, which would be due and to remove any ambiguities, these have been specified specifically to clarify the doubts, which may otherwise have remained as to which all superannuation benefits were required to be paid while removing the person from service. The use of words `i.e.' (emphasis added) after the word 'benefit' and specifying the benefits thereafter which are to be paid would leave no manner of doubt in ones mind that the subsequent part of this clause is only to clarify the superannuation benefits that are to be paid and nothing else. Accordingly, the effective part of the order LPA No. 727 of 2011 (O&M) -4- imposing punishment would be 'removal from service with superannuation benefits'. Then Clause 6(b) has gone on to specify the superannuation benefits that would be payable to the employee and these are pension and/or provident fund and gratuity, as would be due otherwise under the rules and regulations prevailing at the relevant time. To say that the respondents would be entitled to determine if the gratuity would be payable under the rules and regulations or that they are entitled to forfeit the same, would amount to misreading the clause of bipartite settlement under which this punishment has been imposed. The reading of the Clause clearly shows that the gratuity would be payable if one is entitled to the same under the relevant rules and regulations. In my view, need to word the clause in this manner arose only to clarify that there may be cases where punishment of removal from service is imposed at a time when the gratuity otherwise may not be payable to an employee because of his length of service put in by him. It is only to clarify this aspect that this clause has been so worded to say that the superannuation benefits of gratuity would be payable if it is due otherwise under the rules and regulations and not that the respondents would have a right to pass a fresh order deciding about the payment of gratuity on the basis of Payment of Gratuity Act. If this interpretation of this clause is accepted, as is being advanced, it would undo clause 6(b) of the Bipartite Settlement. Positive part of punishment, which can be imposed is the removal order is with superannuation benefits. The remaining part of the clause is only to clarify the superannuation benefits those would be payable. Otherwise, the operative part of the LPA No. 727 of 2011 (O&M) -5- clause and punishment is complete upto the word `benefit' in the Clause. I am, thus, not inclined to accept the pleas as raised on behalf of the Bank."
3. Mr. H.N. Mehtani, learned counsel for the appellant-Bank has argued that the words 'due otherwise under the Rules and Regulations' must be given some meaning and the interpretation also placed by the learned Single Judge would render the aforesaid words as illusory. According to learned counsel, the whole rule would read to mean that an employee can be removed without superannuation benefits, which would be due to him otherwise under the Rules.
4. Mr. Sushil Jain, learned counsel for the respondent has however, argued that the Clause 6(b) is absolutely clear inasmuch as, it categorical states that an employee found guilty of gross misconduct may be removed from service with superannuation benefits. According to learned counsel, the expression used is 'e.g.' or 'i.e.' which only illustrate the benefits would be admissible as due otherwise under the Rules. Mr. Jain, further argued that rule should be interpreted to the benefit of the employee not against his interest.
5. Having heard learned counsel for the parties at a considerable length we are of the view that the instant appeal lacks merit and is, thus, liable to be dismissed. In the present case, the writ petitioner-respondent is alleged to LPA No. 727 of 2011 (O&M) -6- have pocketed a sum of ` 10,000/- and 3600/-. When discrepancies were found in the ledger amount then amount was deposited without further delay, which was less than one month. In an inquiry, the charges were established and the punishment of removal from service was inflicted. It is interesting to take notice of the punishment order dated 30.06.2008, which reads as under:
"After having considered dispassionately the entire case, I concur with the findings of the Enquiry Officer/ relevant record perused by the me and the employee deserves for stringent penalty. I have decided to impose upon Sh. V.K. Sharma, SWO, Kalayat Branch the penalty of removal from service with superannuation benefits i.e. pension and/ or Provident Fund and Gratuity as would be otherwise under the rules or regulations prevailing at the relevant time and without disqualification from future employment in terms of clause 6(b of memorandum of settlement on Disciplinary Action proceedings for workmen signed between workmen union on 10th April, 2002 as Circulated by Head Office Circular No. Per/ 33 dated 12.09.2002."
(Emphasis added) LPA No. 727 of 2011 (O&M) -7-
6. The appellant-Bank construed the aforesaid order to mean than no superannuation benefits are to be given. On a direction issued by this Court on 11.02.2009 in CWP No. 1307 of 2009, the appellant-Bank passed a speaking order holding that the removal would result in forfeiture of pension, gratuity and other retiral benefits.
7. The basic feature of Clause 6(b) to (d) is that removal, compulsory retirement and discharge are provided with superannuation benefits. It is well settled that removal and termination are etymologically difference expressions viz-a-viz their meaning which flow from the expression 'dismissal'. The use of expression 'dismissal' would ordinarily result in disqualification from future employment as has been held in the case of Union of India v. Gulam Mohd. Bhat AIR 2005 SC 4289. In para 8 of the judgment, the difference between the dismissal and removal has been pointed out. In the case of dismissal, the employee is disqualified from future employment and the removal would not ordinarily debarred him from seeking future employment. Clause 6(b),(c) and (d) of bipartite settlement expressly speak against incurring of any disqualification from future employee. It is further interesting to note the peculiar situation created by Clause 6(b) which permits removal with retiral benefits. Ordinarily removal might result into forfeiture of pension etc. However, there is no LPA No. 727 of 2011 (O&M) -8- bar for an employer to stipulate any other condition. It is not possible to hold in the present case that the removal from service could be regarded as removal without any superannuation benefits. It is the removal with superannuation benefits.
8. We are unable to agree with the submissions made by Mr. Mehtani, learned counsel for the appellant- Bank when he placed reliance on Regulations 22(1) and 31 of the State Bank of the Patiala (Employees) Pension Regulations, 1995 (for brevity 'the Regulations') because the aforesaid Regulations would not be applicable. The writ petitioner-respondent is governed by the terms of bipartite settlement entered between the parties somewhere in 2002 whereas the Regulations govern the service conditions of different category of employees of the appellant-Bank. Those Regulations cannot be invoked for interpretation of Clauses contained in bipartite settlement. Therefore, we find no merit in the aforesaid submission. The appeal does not merit admission.
9. Accordingly, the appeal fails and the same is dismissed.
(M.M. KUMAR) JUDGE (T.P.S. MANN) JUDGE April 21, 2011 Atul