J.K. Mohanty, J.
1. The petitioner was serving as the Chief Chshier in the State Bank of India, Bhubaneswar Branch. He was on leave from 19. 6. 1978 (both days inclusive). There was detection of shortage of cash amounting to Rs. 13,000/- (ten thousand) from the strong from on 3.7.1978. A further shortage of Rs. 4,00,000/- (four lakhs) was detected on 5.7.1973. A departmental proceeding was started against the petitioner on the ground that the above shortage was due to the negligence of the petitioner and failure to discharge his duties with utmost devotion. The Chief General Manager, State Bank of India, Bhubaneswar (O. P. No. 3) framed charges against the petitioner on 5.1.1930 as per Annexure-2 and appointed opposite party No. 4 as the Inquiring Officer as per Annexure-3. The petitioner duly submitted his explanation as per Annexure-4. The inquiry commenced on 2.5.1980. After attending the inquiry for some days, the petitioner avoided to take part in the same. So opposite party No. 4 completed the inquiry in the absence of the petitioner. Thereafter the petitioner made a representation to opposite patty No. 3 stating that he was not; given an opportunity of being heard in the inquiry. Opposite party No. 3, after considering the facts and circumstances of the case, directed as per Annexure-9 that the inquiry be held de novo from the stage at which it was held ex-parte. After receiving Annexure-9, opposite party No. 4 by his letter dated 12. 5. 1931 (Annexure-5) intimated the petitioner that the inquiry had been fixed to 15. 2. 1981. According to the petitioner, he decided to attend the inquiry, but unfortunately he suffered from acute Arthritis on 24. 2. 1981; so he could not attend the inquiry on 25. 2. 1981. He sent an application for adjournment supported by a medical certificate granted by a doctor through a friend of his to opposite party No. 4 and prayed for allowing him fifteen days' time. As opposite party No. 4 refused to accept the same on 24.2.1981, he sent the application by registered post which was received in the office of opposite party No. 4 on 25. 2.1981. The application and the medical certificate are Annexures-7 and 8 respectively. The Inquiring Officer, without applying his mind and being biased, rejected the prayer of the petitioner and proceeded with the inquiry ex-parte. The petitioner thereafter approached opposite party No 3 for reconsideration of the matter, but opposite party No. 3 rejected the prayer of the petitioner as per Annexure-11. According to the petitioner, he has retired from service since 31. 5. 1980. Though almost five years have elapsed in the mean time, the provident fund and gratuity etc. due to him have not been settled or paid to him in spite of his repeated prayers. So the petitioner has come up with this writ petition and has prayed for quashing of Annexures-2 and 11 and to directed the opposite parties to settle his dues regarding the provident fund and gratuity etc. within a reasonable time.
2. Opposite parties 1, 2 and 3 have filed a joint counter and opposite party No. 4 has filed his counter separately. According to the opposite parties, the petitioner after taking part in the proceeding for some time, avoided to attend the inquiry. So opposite party No. 4 was forced to conclude the inquiry ex parte. Against that the petitioner made representation to opposite party No.3 who directed de nove inquiry. On receipt of the order of opposite party No. 3, opposite party No. 4 duly noticed the petitioner that further inquiry would commence from 25.2.1981. But on the date of inquiry neither the petitioner not his representative attended the inquiry. The inquiry commenced at 10. 30. a. m. and opposite party No. 4 was forced to conclude the same in the absence of the petitioner. At about 12. 23 p. m. on 25. 2. 1981 opposite party No. 4. received the application of the petitioner and the medical certificate (Annexures-7 and 8 respectively). But by then the inquiry was practically over. So opposite party No. 4 rejected the application vide his order (Annexure-F). The representation made thereafter to opposite party No. 3 was also rejected. According to the opposite parties, the petitioner was afforded adequate opportunity, but be did not avail of the same and deliberately avoided to take part in the inquiry on some plea or the other. As the petitioner by his negligence caused loss to his employer, i. e., State Bank of India (O. P. No. 1), the gratuity and provident fund dues of the petitioner have been rightly withheld till the conclusion of the inquiry and such action is quite legal and justified.
3. The date of the inquiry was fixed by the Inquiring Officer (O. P. No. 4) to 25.2.1931 and this was duly intimated to the petitioner. According to the petitioner, as he was suffering from acute Arthritis, he sent an application (Annexure-7) through a friend on 24.2- 1981 along with a medical certificate (Annexure-8) to opposite party No. 4 who refused to receive the same, So the papers were sent by registered post and were received in the office of opposite party No. 4 at about 12. 25. p. m. on 25.2.1980 (as stated by opposite party No. 4 in the affidavit filed by him) According to opposite party No 4, he. was not satisfied that the petitioner was prevented by sufficient cause to attend the inquiry on 25. 2. 1981 due to the attack of Arthritis on 24. 2. 1981 as in that case he could have appeared through his representative. As no prayer was made at the commencement of the inquiry, i. e., 10 30 a. m., he proceeded with the inquiry. On being satisfied that the defence has fore gene by its absence the opportunity to cross-examine the prosecution witnesses, he permitted the Presenting Officer to relieve his witnesses. After that the registered letter was received by him through the Bank's inward mail register. No doubt, there is nothing to show that in fact the adjournment petition along with the medical certificate was presented before opposite party No. 4 on 24.2.1981. But he had definitely received the same on 25. 2. 1981, the date to which the inquiry was posted, before the inquiry was concluded. This would be evident from Annexure-F filed by the opposite parties wherein it has been mentioned :
'Even though Shri Chand (petitioner) could not appear in person, no reasons were adduced by him for his failure to appear at the inquiry through his representative. I. A. (Inquiring Authority), therefore, did not consider it fit to accede to the request of Shri Chand. The enquiry was concluded.'
As it appears from the counter filed by opposite party No. 4, the rejection of the application was mainly on the assumption that though the petitioner was able to come from Puri to Bhubaneswar, where the letter was posted, in spite of illness, neither he nor his representative attended the proceeding. The assumption of opposite party No. 4 that the petitioner came to Bhubaneswar and posted the letter there, in our opinion, is not justified. 25. 2. 1981 was the first date after the order was passed by opposite party No. 3 directing de novo inquiry.
4. After considering the facts and circumstances of the case we are of the view that the petitioner was prevented by sufficient cause to attend the inquiry and opposite party No. 4 was not justified in concluding the inquiry. even after receiving the application of the petitioner asking for time supported by a medical certificate. The petitioner should be given an opportunity of being heard. The order of opposite party No. 4 in Annexure-F concluding the inquiry is, therefore, quashed and the inquiry is restored to the position where it was on 25.2.1981. Opposite party No. 4 is directed to fix a fresh date, give notice of the same to the petitioner and conclude the enquiry as expeditiously as possible. Learned counsel for the petitioner undertakes that the petitioner shall attend the proceeding and shall not ask for adjournment.
5. Regarding the settlement of gratuity and provident fund dues of the petitioner, learned counsel for the petitioner drew our attention to the provisions of Section 13 of the Payment of Gratuity Act, 1972 which provides that no gratuity payable under this Act and no gratuity payable to an employee employed in any establishment, factory, mine, oil field, plantation, port, railway company or shop exempted under Section 5 shall be liable to attachment in execution of any decree or order of any civil, revenue or criminal Court, Learned counsel urged that even if the petitioner is found liable for causing any loss to his employer, his gratuity cannot be attached. On the other hand, learned counsel for the opposite parties relied on Section 4(6) of the said Act which reads as follows :
4. Payment of gratuity :
XX XX XX(6) Notwithstanding anything contained in Sub-Section (1),
(a) the gratuity of an employee whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to or destruction of property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused ;
(b) the gratuity payable to an employee may be wholly or partially forfeited.
(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.'
He also relied on Rule 49(d) of the State Bank of India (Supervising Staff) Service Rules which is as follows :
'49. Without prejudice to any other provisions contained in these rules, any one or more of the following penalties may be imposed on an employee, for an act of misconduct or for any 'other good and sufficient reason ;
(a)XX XX XX(b)XX XX XX (c)XX XX XX (d) recovery from pay or such other amount as may be doe to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders.'
He argued that in case the petitioner is found guilty for causing pecuniary loss to the Bank, recovery can be made from any amount due to the petitioner. He also relied on Rule 25 of the State Bank of India Employees' & Provident Fund Rules which is as follows :
'26. When a member resigns or retires from the service of the Bank he shall, if he has served the Bank for a period of five years or more, be entitled to receive the balance at his credit in the fund. Provided that when any member resigning or retiring from the service of the Bank is under a liability incurred by him to the Bank, the trustees shall, irrespective of the duration of his service, pay to the Bank out of the balance at his credit in the fund any amount due by him to the Bank (not exceeding in any case the sums contributed by the Bank to his account in the fund and any interest credited to his account on the sums so contributed).'
6. There is some force in the contention of the learned counsel for the opposite parties that any amount due to the petitioner can be withheld till the conclusion of the inquiry as in the event of the charges being proved, recovery can be made from those dues as per Rule 49 of the State Bank of India ( Supervising Staff Service Rules). But it appears from Rule 26 of the State Bank of India Employees' Provident Fund Rules that the sum contributed by the Bank to his account in the fund and any interest credited to his account on the sums so contributed can only be adjusted. In this view of the matter, the petitioner is entitled to receive the amount contributed by him to the fund along with interest on the sums so contributed. The opposite parties are, therefore, directed to pay the petitioner the sum contributed by him to the provident fund and the interest accrued thereon subject to adjustment of any loan/advance taken by him from the fund.
7. To sum up the order passed by opposite party No. 4 in Annexure-F concluding the inquiry is quashed and the inquiry is restored to the position as it was on 25. 2. 1981. Opposite party No 4 is directed to fix a fresh date, give notice of the same to the petitioner and conclude the inquiry as expeditiously as possible. The petitioner shall co-operate in the disposal of the inquiry expeditiously. The opposite parties are also directed to pay the petitioner the sum contributed by him to his provident fund account along with interest subject to adjustment of any loan/advance taken by him from the fund.
8. In the result, the writ petition is allowed in part. There shall be no order as to costs.
K.P. Mohapatra, J.
9. I agree.