Decided on June 24,2013



BARIN GHOSH,.J. - (1.) AFTER retirement of the petitioner, who was the Manager of a branch of respondent no. 2, namely, District Cooperative Bank Limited, his gratuity, provident fund and leave encashment were denied on the ground that certain loans disbursed during the time he was Manager of that branch remained outstanding still. That is no ground for denying either gratuity or provident fund or leave encashment. Provident fund cannot be touched. This is not even an attachable property. Gratuity is dealt with by a Central Act. In terms thereof, only when the services of an employee have been terminated on the ground of willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer or when such termination has been caused for riotous or disorderly conduct or any other act of violence on the part of the employee concerned or such termination has been effected for any act, which constitutes an offence involving moral turpitude, the gratuity of the employee can be forfeited. In the Act, gratuity payable is a must. The provisions of the Act apply to gratuity payable under the Act. Those provisions will not apply provided gratuity payable under a Scheme applicable to the employee is better than what has been provided in the Act. It has not been shown that any Scheme, apart from what has been provided in the Act, is applicable to the case of the petitioner. It has not been shown that the services of the petitioner have been terminated. The action of withholding gratuity after retirement of the petitioner is, therefore, an illegal action. Leave encashment is part of salary. Petitioner has already earned as and by way of salary the amount of money payable to him on account of leave encashment. Payment of salary, under no circumstances, can be stopped for the petitioner has already worked and earned such salary. The action complained of in the writ petition is, therefore, arbitrary, illegal and not sustainable in law and, accordingly, the same is quashed. Impugned orders dated 26th November, 2009 and 5th March, 2010 passed by respondent no. 2 are hereby quashed. Respondent no. 2 is directed to reach to the petitioner gratuity, provident fund and leave encashment, to which the petitioner is otherwise entitled together with interest to be calculated at the rate of 10 per cent per annum from the date of his superannuation until the date of payment.
(2.) IT is made clear that the payment directed above must reach to the petitioner as quickly as possible, but not later than 30 days from today.
(3.) THE writ petition is, accordingly, allowed.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.