Maharashtra Gramin Bank vs Dhondiba Raghoji Kahalekar

N.W. Sambre, J.—By the present petition, the petitioner Bank challenges the judgment and order dated 4th January, 2013 in P.O. Appeal No. N-48 (08)/2012- PGA, passed by the appellate authority under Payment of Gratuity Act, 1972 & Regional Labour Commissioner (C), Nagpur and the order dated 29.2.2012, passed by the Controlling Authority & Assistant Labour Commissioner (Central), Chandrapur, in File No. ALCH/48 (30)/2011-PGA. Learned Counsel for the petitioner - Bank has sought to canvass before this Court that even if the respondent-employee stood retired on 31st May, 2011 and the charge-sheet was served on him in December, 2012, the petitioner Bank continue to have control over his service and as such, sought to urge that the gratuity claimed by the respondent No. 1 is not payable to him.

In order to support his contention, the learned Counsel for the petitioner placed reliance on the judgment of the Apex Court in the matter of Ch. cum Man. Director Mahanadi Coalfield Ltd. Vs. Rabindranath Choubey, . The Apex Court, while dealing with the provisions of clause (a) and (b) of sub-section (6) of section 4 of the Payment of Gratuity Act, 1972, having regard to the views expressed by the Apex Court in the case of Jaswant Singh Gill Vs. Bharat Coking Coal Ltd. and Others, and in State Bank of India Vs. Ram Lal Bhaskar and Another, , has referred the issue to the Three-Judge Bench, with following observations:--

"It is the case of the appellant that in the charge-sheet served upon the respondent herein, there are very serious allegations of misconduct alleging dishonestly causing coal stock shortage amounting to Rs. 31.65 crores, and thereby causing substantial loss to the employer. If such a charge is proved and punishment of dismissal is given thereupon, the provisions of Section 4(6) of the Payment of Gratuity would naturally get attracted and it would be within the discretion of the appellant to forfeit the gratuity payable to the respondent. As a corollary one can safely say that the employer has right to withhold the gratuity pending departmental inquiry. However, as explained above, this course of action is available only if disciplinary authority has necessary powers to impose the penalty of dismissal upon the respondent even after his retirement. Having regard to our discussion above of Jaswant Singh Gill (supra) and Ram Lal Bhaskar (supra), this issue needs to be considered authoritatively by a larger Bench. We, therefore, are of the opinion that present appeal be decided by a Bench of three Judges."

In that view of the matter, Rule. Learned Counsel for respondent No. 1 waives service.

The petitioner has sought to canvass that the amount deposited before the appellate authority under the Payment of Gratuity Act, 1972 be permitted to be withdrawn by respondent No. 1- employee, upon furnishing bank guarantee of like amount. The above contention is rejected in view of the fact that the petitioner has failed to demonstrate before this Court that it continued to have control over services of respondent No. 1, as admittedly the charge-sheet was served after his retirement. As such, the contention that withdrawal of amount by respondent No. 1 be on condition, is rejected. Respondent No. 1 - employee is at liberty to move an application before the appellate authority under the Payment of Gratuity Act, in Appeal No. 48 (08)/2012-PGA, for withdrawal of the amount deposited by the petitioner.