ARINDAM SINHA,J. - (1.) By order dated 22nd August, 2016 Controlling Authority in directing forfeiture of gratuity against respondent no.1 had observed, inter alia, said respondent had compulsorily retired from service on 30th November, 2011. Order of Disciplinary Authority came in August, 2012 by which there was award of major punishment of removal from service as well as forfeiture of gratuity. Against this order of Controlling Authority, said respondent had come before Deputy Chief Labour Commissioner (Central), Kolkata, in appeal. The Authority passed order dated 14th December, 2017. In directing payment of gratuity along with interest, the Authority took cognizance of above fact found by Controlling Authority. It held, services having been terminated by superannuation on 30th November, 2011, order for withholding gratuity came more than eight months later. Employer was due to pay or deposit the gratuity amount within one month from date of termination.
(2.) Mr. Majumder, learned advocate appears on behalf of petitioner. He demonstrates from impugned order, service of respondent no.1 was extended as per Rule 19(3) of State Bank of India Officers' Service Rules (SBIOSR) for limited purpose of completing of enquiry proceedings. An employee becomes entitled to payment of gratuity on termination of his employment after he has rendered continuous service for not less than 5 years as provided under section 4 of Payment of Gratuity Act, 1972. By operation of rule invoked, service stood extended. Termination was by order of Disciplinary Authority 10th August, 2012. One month thereafter said respondent would become entitled to payment of gratuity subject to provision in sub-section (6) of section 4. Provision in sub-section (6) overrides provisions in sub-section (1) of section 4. Order of Disciplinary Authority was removal from service and forfeiture of gratuity, confirmed in appeal as well as by Controlling Authority on the question of forfeiture. This the Authority had failed to appreciate and thus committed perversity.
(3.) Mr. Majumder submits further, the Authority relied on judgment of Supreme Court in Jaswant Singh Gill v. Bharat Coking Coal Ltd. and others reported in (2007) 1 Supreme Court Cases 663. View taken therein is not settled position in law as the question has been referred to larger Bench of Supreme Court by judgment in Chairman-cum-Managing Director Mahanadi Coalfield Limited v. Rabindranath Choubey reported in (2013) 16 Supreme Court Cases 411 . He submits, it is not a settled position in law regarding whether Disciplinary Authority has necessary power to impose penalty of dismissal upon respondent even after his retirement but by judgment dated 22nd December, 2017 a Division Bench of this Court in A.P.O. 490 of 2017 (United Bank of India v. Rana Mazumder and Ors.) had set aside interim order for payment of gratuity while order of dismissal made on disciplinary proceedings continuing after age of retirement was pending challenge before Appellate Authority.;