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7. The learned advocate for the petitioner-Bank has contended before me that the misconduct against the respondent has been conclusively proved for which a major penalty of compulsory retirement is imposed upon him. She has submitted that indisputably, the respondent has not challenged the order of compulsory retirement and the same has therefore become final. She therefore submits that the respondent is not entitled to claim any part of the gratuity and the petitioner, therefore, is justified in ordering forfeiture of the entire amount of gratuity. The learned advocate for the petitioner has also contended before me that the Bank has framed Gratuity Rules and as per rule 3 of the Gratuity Rules, the Bank is entitled to forfeit the entire amount of gratuity in the present case. The learned advocate for the petitioner has also contended that no notice was required to be issued to the respondent before passing the order of forfeiture of gratuity since the respondent had sufficient notice during the course of the conduct of the inquiry. It is her contention that the chargesheet issued against the respondent clearly specified that the respondent is guilty of acts and omissions which caused loss of Rs.10 lacs to the Bank. On the basis of the chargesheet issued to the respondent, he came to be dismissed from service by the Competent Authority, which order came to be modified by the Appellate Authority on purely humanitarian considerations and the penalty was substituted to that of compulsory retirement. Learned advocate for the petitioner has, therefore, submitted that when the charges have been proved against the respondent and when the charge itself indicated that the respondent was guilty of acts and omissions which caused loss of Rs.10 lacs to the Bank, there was no further necessity of issuing fresh notice or giving an opportunity of being heard to the respondent before passing the order of forfeiture of gratuity. She, therefore, contends that in the facts of the present case, principles of natural justice should be held to have been substantially complied with. Her alternative contention is that the facts as they stand now are indisputable. The fact that the respondent is ordered to be compulsorily retired for the misconduct in question is not in dispute. The fact that the misconduct led to loss of cash of Rs.10 lacs to the Bank is also not in dispute. It is, therefore, the contention of the learned advocate for the petitioner that no useful purpose will be served in granting hearing to the respondent even if it is found that such a hearing was necessary. In short, her contention is that in the present case, granting of hearing at this stage, would be a "useless formality". As an alternative argument to the above contention, she submits that even now hearing can be granted to the respondent and technical defect such as not giving opportunity of being heard before passing the order of forfeiture should not be allowed to terminate the proceedings and that the proceedings could always be restarted from the stage where the defect is detected.

9. Learned advocate appearing for the parties agree that the petitioner Bank has formulated Gratuity Rules and they have made submissions regarding entitlement of gratuity of the respondent within the parameters of rule 3 of the Gratuity Rules. Rule 3 of the Gratuity Rules of the Bank reads as under:

"In case of termination of service of the Member on account of misconduct, Gratuity payable either under Clause 1 or 2 hereof shall not be forfeited, except where such misconduct causes financial loss to the Bank (of which and of the amount of which the Bank shall be the sole Judge and its decision final) and in that case the forfeiture of the Gratuity shall be to extent of the financial loss only. The term "misconduct" for this purpose shall inter alia include any act or wilful omission or negligence causing any damage or loss to or destruction of property belonging to the Bank. Gratuity payable under Clause 1 hereof shall be forfeited if the services of the Member have been terminated for his riotous or disorderly conduct or any other act of violence on his part or for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment."

10. One thing can be seen from the above is that any order that may be passed by the Bank in exercise of powers under Rule 3 of the Gratuity Rules would result into civil consequence against the employee concerned. In such a situation, though it has not been provided specifically under the said rule for granting hearing to the employee before an order of forfeiture is passed, principles of natural justice would have to be followed before passing any such order. In other words, though rule does not specifically require issuance of a notice or giving an opportunity of being heard to an employee, such a requirement can be read into the rule, failing which the rule would be rendered vulnerable to attack of unconstitutionality. In AIR 1981 SC 818 (Swedeshi Cotton Mills v. Union of India), the Hon'ble Supreme Court held that where a statute does not in terms exclude the rule of prior hearing, but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on merits against the decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing. Para 42 of the said judgment can be reproduced herein :

16. From the above guiding principles, it would be necessary to decide, in the facts of the present case, whether it will be a "useless formality" to insist that the respondent should have been given an opportunity of being heard before adverse order was passed against him as no prejudice is caused by not affording such an opportunity, as is contended by the learned advocate for the petitioner. In my opinion, such a view is not possible to be taken in the present case. As discussed earlier, the respondent was heard only at the stage of departmental inquiry where the entire focus was on the misconduct and what punishment is to be imposed on the respondent for his alleged misconduct. What was the role played by the respondent, who are the other persons involved which caused loss to the tune of Rs.10 lacs to the Bank, what were the posts held by such persons and considering all these and other relevant aspects of the matter, what would be the amount, if any, of the gratuity of the respondent which is required to be forfeited, are the questions required to be considered by the Competent Authority and such a decision cannot be arrived at without giving a fair opportunity to the respondent to be heard in this regard. Rule 3 of the Gratuity Rules itself suggests that the amount of gratuity to be withheld is to be decided solely by the Bank. By no stretch of imagination can it be argued that in every case of loss of property, there would be automatic and complete forfeiture of gratuity. The rule itself, in my opinion, can be read into giving sufficient discretion to the Competent Authority to forfeit in part or full amount of gratuity considering the facts and circumstances of a given case. In my view, therefore, requirement of hearing to the respondent would not be an empty formality which can be dispensed with.