BEFORE THE APPELLATE AUTHORITY

UNDER PAYMENT OF GRATUITY ACT, 1972 AND

THE DY. CHIEF LABOUR COMMISSIONER (CENTRAL),
GOVERNMENT OF INDIA, MINISTRY OF LABOUR AND EMPLOYMENT
4TH FLOOR, JEEVANDEEP BUILDING, PARLIAMENT STREET,
NEW DELHI-110001.

In the matter of Gratuity Appeal No: 36(49)/2018 P.A.DYC

Claim Application Number: ALC-II/36(35)/2017
Between:

The General Manager

Indian Bank, Zonal Office,
Upper Ground Floor,
World Trade Centre,
Babar Lane, New Delhi-01. ....Appellant

Vs

Sh. Pardeep Kumar Phillips

Rubby 1/112, Gardenia Glamour,
Phase-1, Sector-3, Vasundhra,
Gaziabad, Utter Pradesh-201020. ....Respondent
.

Present:
Sri Jasbir Bidhuri and Shri Bipin Chandra for the Appellant.
Ms. Amrita Mishra for the Respondent.

Decision

This memorandum of appeal was filed on 20/07/2018 under sub section (7) of
Section (7) of the P.G. Act, 1972 (hereinafter referred to as ‘Act’) by The General Manager,
Indian Bank, Zonal Office, Upper Ground Floor, World Trade Centre, Babar Lane, New
Delhi-01. (hereinafter referred to as ‘Appellant’) against Sh. Pardeep Kumar Phillips, Rubby
1/112, Gardenia Glamour, Phase-1, Sector-3, Vasundhra, Gaziabad, Utter Pradesh-201020
(here-in-after referred to as Respondent’) assailing the order dated 24/05/2018 of the
Controlling Authority & Assistant Labour Commissioner (C), Delhi-II (hereinafter referred
to as ‘CA’) in Claim Application No. ALC-II/36(35)/2017 directing the appellant to pay the
gratuity amount of Rs 350000/- along with simple interest @ 10% per annum for delayed
payment w.e.f. 12.12.2005 till the date of actual payment.
The hearing in the above appeal was held on several dates and finally on 20.09.2018
when all the parties were present. The appellant has stated that CA did not have territorial
jurisdiction to decide the present dispute as the respondent who joined the appellant Bank on
25.04.1977 was last posted in circle office, Lucknow at the time of Compulsory Retirement
on 12.12.2005. The respondent was imposed the major penalty of compulsory retirement in
terms of Regulation 4(h) of the Indian Bank Officer Employees (Discipline and Appeal)
Regulations 1976 pursuant to a well conducted enquiry. Gratuity of the respondent was
forfeited with the contention of moral turpitude in terms of section 4(6) (b) (ii) of the Act as
respondent was imposed with the punishment of Compulsory Retirement for serious proven
misconducts including misappropriation of funds of the customer of the Bank with mala fide
intention. It is further stated that the claim application is hopelessly delayed and CA
condoned the delay without any sufficient cause. Thus order passed by the CA is arbitrary,
illegal and is a result of non-application of mind, hence; the same is liable to be set aside.

The Respondent has submitted that the order of the CA is just and fair and he is
entitled for gratuity as determined by the CA as per provisions of the Act. Respondent stated
that the cause of action in the present case in Delhi as charge sheet etc. all correspondences
were made in Delhi as he was sick and hospitalised for most of the time since 2005,
therefore the CA was right in exercising the jurisdiction. He wrote an application to the
appellant for payment of gratuity on 13.02.2006 but there is no response from the appellant
and in 2008 gratuity was forfeited without providing proper opportunity to the respondent.
The appellant has no power to forfeit the gratuity under section 4(6) of the Act without
conducting an independent inquiry to forfeit the gratuity. Respondent further stated that in
the absence of forfeiture of gratuity at the time of termination of service, the appellant has a
statutory right to receive gratuity as per provisions of the Act as imposition of punishment of
compulsory retirement is itself a punishment and forfeiture of the gratuity would amount to
double jeopardy. Thus, the Appellant intentionally delayed the payment. The claim of
interest on late payment of Gratuity is well within rules. The appeal has been filed on false
and frivolous grounds and without any cause of action; hence, it is liable to be dismissed on
this ground alone.

On perusal of relevant records submitted by both the parties during the hearing of
appeal and arguments thereto along with the original file ALC-II/36(35)/2017, it is evident
that there is no dispute as to the service period. The objection raised by the appellant with
respect to the lack of jurisdiction of the CA to consider the claim application prima facie
appears to be reasonable but since the respondent was last residing in Delhi as is evident
from the correspondence between the appellant and respondent, the action of the CA to
entertain the claim application is justified as the Zonal Office of the appellant in Delhi
represented the appellant in due course. The CA has condoned the delay in filing the claim
application by the respondent by citing certain judgments and I do not find any compelling
reason at this stage to interfere with his discretion to condone the delay. The appellant has
stated that as per terms of Regulation 4(h) of the Indian Bank Officer Employees (Discipline
and Appeal) Regulations 1976, the respondent was not entitled to the gratuity as he was
imposed with the penalty of compulsory retirement on 12/12/2005 which is in consonance
with the provisions under section 4(6) (b)(ii) of the Act. The appellant has further clarified
that the respondent was informed in 2008 for forfeiture of gratuity on account of act
involving moral turpitude as per provisions under section 4(6) (b)(ii) of the Act as the
appellant is a public sector bank dealing with public money as custodian of public money
and its employees are governed by the Banking Regulations for this purpose to ensure the
integrity of the employees. Since the punishment of compulsory retirement has attained
finality therefore the CA has no judicial power to adjudicate on decision of the competent
authority in departmental disciplinary proceedings. It is further argued by the appellant that
forfeiture of gratuity is in conformity with the provisions of the Act. The respondent has
stated that the provisions of the Act are applicable to him and he is entitled to gratuity since
no forfeiture was done by the appellant at the time of compulsory retirement. He asked the
appellant to release his gratuity in 2006 which was not responded by the appellant for two
years. The appellant informed the respondent on 11/10/2008 that respondent is not entitled
to gratuity under section 4(6)(b)(ii) of the Act. In view of the above facts it is evident that
gratuity and other terms and conditions of service of the respondent are governed by the
Indian Bank Officer Employees (Discipline and Appeal) Regulations 1976 that provides for
forfeiture of gratuity in case of imposition of punishment of compulsory retirement
following a disciplinary inquiry. Since this Regulation provides better terms of gratuity,
therefore it is in consonance with the provisions of section 4(5) of the Act. The respondent
was informed by the appellant in 2008 in response of his demand of gratuity in 2006. Now
the respondent filed a claim application before the CA on 16 Feb 2017 without any cogent
and sufficient cause for huge gap of nine years. In this situation it can safely be presumed
that the respondent opted to claim gratuity under the Act in place of the Bank Regulation at
the time of filing the claim application on 13 Feb 2017. Since respondent has a right to claim
gratuity either as per the Act or as per the more beneficial scheme, therefore in the absence
of any specific action for forfeiture of gratuity under section 4(6) (b)(ii) of the Act, he is
entitled to gratuity. In view of the above I am of the considered opinion that the respondent
is entitled to gratuity of Rs 350000/ as determined by the CA but not the interest as the
respondent himself is responsible for the delay. The order of the CA dated 24/05/2018 is
amended accordingly.
Given under my signature and seal on 8th day of October, 2018 and parties are
informed accordingly.

(Yashpal Tyagi)
Appellate Authority
Under Payment of Gratuity Act, 1972 &
Dy. Chief Labour Commissioner (Central)
New Delhi

Copy to the Controlling Authority and Asstt. Labour Commissioner (Central), Delhi-II.(By
name) for information w.r.t. his file No. ALC-II/36(35)/2017.

Dy. Chief Labour Commissioner (Central)

New Delhi