AHMEDABAD DISTRICT COOPERATIVEBANK LTD Vs. RAJENDRA C AMIN

JUDGEMENT

(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 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. The following few facts are necessary for the purpose of determination of the issue involved in the present petition.

(2.) 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 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 However, the same came to be withdrawn by the respondent No. 1 Thus, the order of dismissal has not been further challenged by the respondent No. 1.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 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.

(3.) 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 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.