SCA/8466/1997 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8466 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AHMEDABAD DISTRICT COOPERATIVEBANK LTD - Petitioner(s) Versus RAJENDRA C AMIN & 2 - Respondent(s) ========================================================= Appearance : MR HARDIK SONI FOR MR HARIN P RAVAL for Petitioner(s) : 1, MR SANDEEP N BHATT for Respondent(s) : 1, MR AMIT PATEL AGP for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner has challenged the legality and validity of the judgement and order dtd.30/9/1997 passed by the Appellate Authority under SCA/8466/1997 2/7 JUDGMENT the Payment of Gratuity Act, 1972 (“the Act” for short) in Appeal No.14 of 1997 as well as judgement and order dtd.30/11/1996 rendered by the Controlling Authority under the Act in Case No.3 of 1996. 2. The following few facts are necessary for the purpose of determination of the issue involved in the present petition. 3. The respondent was serving in the petitioner bank as a Sub-Agent and he alleged to have committed serious misconduct and misappropriated an amount of Rs.11.03 Lacs between 21/7/1983 and 1/7/1992. It is the case on behalf of the petitioner that the respondent No.1 executed a writing admitting his default on 5/9/1992 and had agreed to pay back the amount misappropriated by him and in fact paid an amount of Rs.2,94,344.15 ps. to the bank but thereafter stopped to pay further amount. The respondent No.1 came to be suspended and a show cause notice came to be issued on 16/1/1993 and departmental inquiry was initiated against him. After completion of the inquiry, a Chargesheet came to be filed against the respondent No.1. Simultaneously the petitioner bank also filed Lavad Suit No.1834 of 1993 in the court learned Board of Nominees at Ahmedabad for SCA/8466/1997 3/7 JUDGMENT recovery of Rs.12,60,572.76 ps. After the departmental inquiry was over, a departmental order came to be passed by the petitioner bank dismissing the respondent No.1 from service. It appears that thereafter the said dismissal order was challenged by the respondent No.1 under the B.I.R. Act. However, the same came to be withdrawn by the respondent No.1 Thus, the order of dismissal has not been further challenged by the respondent No.1. It appears that in the meantime, the respondent No.1 preferred an application on 27/9/1993 before the Controlling Authority under the Act praying for payment of gratuity, and the said application was registered as Case No.338 of 1993. In the said application the respondent No.1 did not point out that he was dismissed from service, on the contrary he sought payment of gratuity stating that he has retired from services. The Controlling Authority under the Act dismissed the said application by order dtd.30/7/1994 by holding that the said application is not maintainable. That, thereafter, without disclosing the fact that the application for gratuity has been dismissed by the controlling authority, the respondent No.1 again submitted another application on 20/12/1995 praying for SCA/8466/1997 4/7 JUDGMENT gratuity and the Controlling Authority under the Act, by the impugned order dtd.30/11/1996 allowed the said application directing the petitioner Bank to pay gratuity to the respondent No.1. Against the order dtd. 30/11/1996 rendered by the Controlling Authority under the Act in Case No.3 of 1996, the petitioner Bank preferred Appeal No.14 of 1997 before the Appellate Authority and the Appellate Authority by the impugned judgement and order dtd.30/9/1997 dismissed the same by holding that even no order has been passed in the suit filed by the petitioner bank before the learned Board of Nominees. Being aggrieved by and dissatisfied with the aforesaid two orders passed by the authorities below under the Act directing the petitioner bank to pay gratuity to the respondent No.1, the petitioner Bank has preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Hardik Soni, learned advocate appearing on behalf of the petitioner bank has submitted that when the respondent No.1 was dismissed from service after holding due inquiry and as the charge against him with respect to misappropriation of huge amount was proved against the respondent, the authorities were not justified in SCA/8466/1997 5/7 JUDGMENT directing the petitioner bank to pay gratuity to the respondent No.1. He has also further submitted that as such the application submitted by the respondent No.1 being Case No.338 of 1993 was dismissed by the Controlling Authority vide order dtd.30/7/1994 holding that the same is not maintainable, still, second application was preferred by the respondent No.1 which has been entertained, which ought not to have been entertained unless the order dtd.30/7/1994 rendered in Case No.338 of 1993 is challenged and set aside by the higher authority. It is also further pointed out relying upon Further-Affidavit filed on behalf of the petitioner that even during the pendnecy of the present Special Civil Application, the suit filed before the learned Board of Nominees has been decreed and even the respondent No.1, by communication dt.12/11/2003, has also agreed to pay decretal amount in installments. Therefore, it is requested to allow the present Special Civil Application by quashing and setting aside both the impugned orders. 5. Mr.Sandeep Bhatt, learned advocate appearing on behalf of the respondent No.1 has tried to support the orders passed by the both the authorities, however, he is not in a position to dispute the factum that during the pendency SCA/8466/1997 6/7 JUDGMENT of the present Special Civil Application, suit filed against the respondent No.1 for recovery of Rs.12,60,572.76 ps. is not decreed. He is not in a position to dispute the communication addressed by the respondent No.1 to the petitioner bank with regard to payment of decretal amount in installments. He is also not in a position to point out anything whether the order passed by the Controlling Authority dtd.30/4/1994 in Case No.338 of 1993 was challenged before the higher authority or not. 6. Considering the fact that the respondent No.1 was dismissed from service after holding due departmental inquiry on the ground of misappropriation and that even the application submitted by the respondent No.1 before the Controlling Authority claiming gratuity by way of Case No.338 of 1993 was dismissed by the Controlling Authority by order dtd.30/7/1994 and the said order has not been challenged by the respondent No.1 before higher authority, it appears that the Controlling Authority as well as the Appellate Authority have materially erred in allowing the second application submitted by the respondent No.1 claiming gratuity and directing the petitioner bank to pay gratuity to the respondent No.1. Once the application submitted by the respondent No.1 SCA/8466/1997 7/7 JUDGMENT for gratuity being Case No.338 of 1993 was dismissed as not maintainable, unless the said order is challenged before the higher forum and set aside, second application, on the same grounds claiming gratuity, was not maintainable. 7. Under the circumstances and for the reasons stated above, the impugned orders passed by the Appellate Authority and Controlling Authority require to be quashed and set aside and accordingly the judgement and order dtd.30/9/1997 passed by the Appellate Authority under the Act in Appeal No.14 of 1997 as well as judgement and order dtd.30/11/1996 rendered by the Controlling Authority under the Act in Case No.3 of 1996, are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs. [M.R. SHAH, J.] rafik