PRADEEP KUMAR Vs. STATE OF UTTARAKHAND
HIGH COURT OF UTTARAKHAND
STATE OF UTTARAKHAND
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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
(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
(3.) THE writ petition is, accordingly, allowed.;
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