CIVIL WRIT PETITION NO.10412 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 07 ,2011 Vishav Kumar Sharma .....Petitioner VERSUS State Bank of Patiala, Patiala and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sushil Jain, Advocate, for the petitioner. Mr. H. N. Mehtani, Advocate, for the respondents. **** RANJIT SINGH, J. (ORAL) Petitioner, a Bank employee, has made a claim for retiral benefits, including pension, provident fund, gratuity, which has been rejected by the Bank on the ground that the petitioner was ordered to be removed from service by way of punishment. The petitioner rather would rely upon the same order to make a claim for pension and pensionary benefits, including gratuity, as these benefits had been allowed as per the said order. The operative part of the order of removal read as under:- CIVIL WRIT PETITION NO.10412 OF 2010 :{ 2 }: “I have decided to impose upon Sh.V.K.Sharma, SWO, Kalayat Branch the penalty of removal from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the rules or regulations prevailing at the relevant time and without disqualification from future employment in terms of clause 6(b) of memorandum of Settlement on Disciplinary Action proceedings for workmen signed between workmen union on 10th April, 2002 as Circulated by Head Office Circular No.Per/33 dated 12.9.2002.” A perusal of the above order would clearly show that the petitioner was held entitled to superannuation benefits like pension, provident fund, gratuity but the same were denied to him, by rejecting his claim in this regard on 8.10.2008 followed by rejection of his representation dated 4.6.2009. The petitioner has accordingly challenged these orders through the present writ petition. The petitioner was appointed as a Clerk-cum-Cashier in the year 1986. As per him, he was not in a fit state of mind because of his wife was suffering from illness. The petitioner, however, was sent to the main branch to work on 4.9.2007, where he disbursed payment to 115 pensioners. Because of heavy rush two receipts, one amounting to Rs.3600/- and another amounting to Rs.10,000/- could not be entered and both these vouchers remained in the drawer alongwith the cash. On learning about the same, the petitioner deposited the amount in the respective accounts and there was no complaint from any customer. Grievance is that still, the CIVIL WRIT PETITION NO.10412 OF 2010 :{ 3 }: respondent Bank initiated action against the petitioner. The petitioner had pleaded his unfit state of mind developed due to his family circumstances and had accordingly submitted reply to the charge sheet served to him. The enquiry was conducted and on the basis of evidence led, the disciplinary authority imposed the order of removal from service, operative part of which has been reproduced above. The petitioner filed appeal against the same but remained unsuccessful. Not only that, the respondent-bank had rejected his claim for grant of pension and pensionary benefits on 8.10.2008. The petitioner had challenged this action by filing Civil Writ Petition No.1307 of 2009 before this Court, which was disposed of by granting liberty to him to agitate his claim for grant of pension and provident fund, which the petitioner complied with. The representation filed by the petitioner for release of retiral benefits has now been rejected on 4.6.2009 and so the petitioner has challenged this order through the present writ petition. In response to a notice issued, the Bank has filed reply. The limited issue which arise for consideration now in this case relates to the right of the petitioner to pension and other benefits like gratuity in terms of the order of removal passed against him. As per the respondents, the disciplinary authority had imposed the penalty of removal from service with superannuation benefits i.e. Pension, provident fund, gratuity as due otherwise under the rules and regulations prevailing at the relevant time. As per the respondents, this was a single punishment and from this, no inference can be drawn that the petitioner was held entitled to any superannuation CIVIL WRIT PETITION NO.10412 OF 2010 :{ 4 }: benefits. The respondents would refer to Section 4(6)(d)(iii) of the Payment of Gratuity Act to urge that the gratuity in whole or part may be forfeited if the service of such employee had been terminated for the act, which constitute an offence involving moral turpitude. Stating that the petitioner was removed from service for misappropriating the amount deposited by two customers, the offence alleged was one involving moral turpitude and accordingly he was held not entitled to the pensionary benefits as these were to be granted if otherwise due under the Rules. Learned counsel for the petitioner would submit that the impugned order is very clear and can not be read in the manner as is being urged by the respondents. The counsel would rather make reference to Clause 6(b) of the Memoranda of Settlement on disciplinary action proceedings for workman signed between the parties on 10.4.2002. This clause is as under:- “6. An employee found guilty of gross misconduct may: (b) be removed from service with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment.” A reading of the above clause would clearly show that while imposing a penalty of removal from service, the same could be with superannuation benefits i.e. pension and provident fund as would be due otherwise under the rules and regulations prevailing at that time. This is the precise punishment imposed on the petitioner. CIVIL WRIT PETITION NO.10412 OF 2010 :{ 5 }: The punishment is as per the terms, which were agreed to between the parties and this may not be open to be read with any other regulations prevailing at that time. The respondents are apparently not reading the order of punishment correctly. The precise punishment imposed on the petitioner is as per Clause 6(b) of the Bipartite Settlement. Reading the same in a plain and simple language would convey a meaning that removal from service with superannuation benefits is the punishment which could be imposed. Further part of clause (b) only clarifies the benefits, which would be due and to remove any ambiguities, these have been specified specifically to clarify the doubts, which may otherwise have remained as to which all superannuation benefits were required to be paid while removing the person from service. The use of words `i.e.' (emphasis added) after the word `benefit' and specifying the benefits thereafter which are to be paid would leave no manner of doubt in ones mind that the subsequent part of this clause is only to clarify the superannuation benefits that are to be paid and nothing else. Accordingly, the effective part of the order imposing punishment would be `removal from service with superannuation benefits'. Then Clause 6(b) has gone on to specify the superannuation benefits that would be payable to the employee and these are pension and/or provident fund and gratuity, as would be due otherwise under the rules and regulations prevailing at the relevant time. To say that the respondents would be entitled to determine if the gratuity would be payable under the rules and regulations or that they are entitled to forfeit the same, would amount to misreading the clause of bipartite CIVIL WRIT PETITION NO.10412 OF 2010 :{ 6 }: settlement under which this punishment has been imposed. The reading of the Clause clearly shows that the gratuity would be payable if one is entitled to the same under the relevant rules and regulations. In my view, need to word the clause in this manner arose only to clarify that there may be cases where punishment of removal from service is imposed at a time when the gratuity otherwise may not be payable to an employee because of his length of service put in by him. It is only to clarify this aspect that this clause has been so worded to say that the superannuation benefits of gratuity would be payable if it is due otherwise under the rules and regulations and not that the respondents would have a right to pass a fresh order deciding about the payment of gratuity on the basis of Payment of Gratuity Act. If this interpretation of this clause is accepted, as is being advanced, it would undo clause 6(b) of the Bipartite Settlement. Positive part of punishment, which can be imposed is the removal order is with superannuation benefits. The remaining part of the clause is only to clarify the superannuation benefits those would be payable. Otherwise, the operative part of the clause and punishment is complete upto the word `benefit' in the Clause. I am, thus, not inclined to accept the pleas as raised on behalf of the Bank. For the view that I have taken, I will find support from a Division Bench decision of this Court titled UCO Bank Vs. H.P.S.Chawla and another, 2007(3) S.C.T. 331, where it is held that once the punishing authority holds that the delinquent should be paid his retiral benefits, while imposing punishment of removal from service and the employer does not agitate the same, then it can not CIVIL WRIT PETITION NO.10412 OF 2010 :{ 7 }: be allowed to oppose the implementation of the said order of payment of retiral benefits. Though the punishment order in this case was worded differently but in fact the intention was to give retiral benefits alongwith penalty of removal from service. Similar intention would appear from the impugned order in this case. Even in the case of State Bank of India and others Vs. Shri B.D.Mandhotra, 2008 (2) S.L.R. 122, Division Bench of Himachal High Court had held the respondents therein entitled to full gratuity and pension, where no financial loss was seen to have been caused to the Bank. In view of the clear contents of the order and the position that would emerge from the discussion as noticed above, I am clear in my mind that the punishment of removal was with superannuation benefits and the denial thereof by the respondents is neither justified under law nor would be permissible. The writ petition is accordingly allowed and the impugned order dated 4.6.2009 (Annexure P-13) and order dated 8.10.2008 (Annexure P-10) are, therefore, set-aside. Direction is issued to the respondents to release the superannuation benefits to the petitioner as are specified in impugned order, Annexure P-8 i.e. Pension and/or provident fund and gratuity. February 07,2011 (RANJIT SINGH ) khurmi JUDGE