CENTRAL BANK OF INDIA Vs. GHANSHYAMLAL MOHANLAL JANI

JUDGEMENT

(1.) The only question which arises in this appeal by the Central Bank of India which has been directed by the learned Civil Judge (S. D.) Surendranagar in Special Civil Suit No. 47 of 1973 to pay to its ex-employee respondent plaintiff G. M. Jani a sum of Rs. 8 800 in connection with his Provident Fund dues and Rs. 14 0 in connection with his claim for gratuity is as to whether the learned trial Judge was in error in negativing the plea of the appellant Bank that it was entitled to withhold the aforesaid amounts. The suit giving rise to the appeal was instituted by the plaintiff an ex-officer of the Bank seeking a declaration that an order of dismissal from service passed by the Bank on Sept. 13 1969 was illegal and ultra vires. The plaintiff also prayed for consequential reliefs. The plaintiff also claimed that he was entitled to be paid a sum of Rs. 8 800 which was at his credit in his Provident Fund Account and a sum of Rs. 14 0 in connection with gratuity. The defendant Bank in its written statement contended the plaintiff was not entitled to the payment of the Provident Fund amount and the gratuity amount without disclosing the legal basis for withholding the said amount. The trial Court on an appreciation of evidence came to the conclusion that the plaintiff had failed to establish his case in so far as the impugned order of dismissal dated 13/09/1969 was concerned. The suit of the plaintiff in so far as the relief for declaration in this behalf was concerned was dismissed. The trial Court however came to the conclusion that the defendant Bank was not justified in withholding the amount of Provident Fund and gratuity in view of the fact that the Bank had failed to make out the case that it was entitled to withhold these amounts as per the relevant rules. Thereupon the unsuccessful Bank has approached this Court by way of the present appeal and has contended that the trial Court ought to have upheld the plea that the BanK was entitled to withhold these at mounts. In so far as the plaintiff has failed in his challenge to the impugned order of dismissal dated 13/09/1969 it has been accepted by the plaintiff in the sense that it has not been questioned by way of a cross appeal or cross objections. We are therefore not concerned with that part of the case and need not invest public time in adverting to the facts and circumstances pertaining to the order of dismissal or the grounds on which it was challenged.

(2.) As mentioned earlier the defendant Bank did not make explicit its stand in regard to the alleged right to withhold payment of Provident Fund and gratuity as claimed by the plaintiff in the written statement. All the same it appears that when the matter came up for arguments reliance we placed on rules 17 and 18 of the Provident Fund Rules of the Bank and on a Circular being Circular No. 6 of 1968 regarding payment of gratuity to office staff. The Bank did not place on record the full text of the rules or the Circular. The Bank placed on record at Ex. 73 an extract from the Rules which was certified to be a true copy by an officer of the Bank. So also the Bank also placed on record an extract of the official Circular No. 6/68 at Ex. 74. These extracts typed on the letter head of the defendant Bank have been received in evidence and marked Exs. 73 and 74 by consent. An argument to the following effect was advanced on the basis of Exs. 73 and 74 before the trial Court. The Bank was entitled to withhold from thee Provident Fund Account of the plaintiff amount equivalent to the contributions made by the Bank to the said Account in view of rules 17 and 18 contained in Ex. 73. It was also argued that the Bank was entitled to withhold the payment of gratuity in view of Ex. 74. no order to understand the argument these extracts require to be reproduced :

(3.) I learned counsel for the appellant Bank was not in a position to dispute that the Board of Directors had not taken any such decision or passed any resolutions in that behalf in the context of Exs. 73 and 74 till the decree was passed. Nor was he oblate contend that in the absence of such a resolution the impugned decision for withholding gratuity and pension could be legally taken. He however contended that subsequently after a lapse of several )ears. during the pendency of this appeal the Board of Directors had passed an appropriate resolution in this behalf at its meeting dated 11/07/1979 It may be stated that the suit was instituted on 11/09/1973 and was decreed by the trial Court on 31/01/1979 The present appeal was instituted by petitioner on 18/06/1979 Thus the aforesaid resolution dated 11/07/1979 was passed virtually giving post facto sanction with retroactive effect some six years after the impugned decision was taken and the suit giving rise to this appeal was instituted and some seven months after the decision of the trial Court. And that resolution passed after this appeal was admitted is sought to be produced by way of Civil Application No. 288 of 1980 which was instituted four days back on 2/02/1980 We do not propose to examine whether or not these documents should be permitted to be received in evidence be way of additional evidence during the pendency of the appeal under Order 41 Rule 27 of the Code of Civil Procedure. Having regard to the time cost which has been already incurred (more than 7 years) we have granted the request made by the learned counsel for the appellant Bank to take these documents on record subject to and without prejudice to the rights and Contentions of the other side. We shall presently point out that even if these resolutions are taken into consideration the appellant cannot succeed. But before we do so we must reproduce the resolution said to have been passed at the meeting of the Board of Directors on 11/07/1979 which has been produced before the Court in the aforesaid circumstances: Item 1720