Bidyut Baran Halder Vs. The State of West Bengal and Ors. - (High Court of Calcutta) (03 Aug 2017)

Adjustment or exercise of banker's lien can be made, only if, employee makes over pensionary benefits voluntarily to the bank

MANU/WB/0554/2017

Labour and Industrial

In present case, Petitioner seeks gratuity from his employer. Petitioner submitted that, the Petitioner was an employee of a bank. A disciplinary proceeding was initiated by the bank. The Petitioner was dismissed from service in such disciplinary proceeding. According to him, the petitioner is entitled to pension and gratuity. Petitioner submitted that, no proceedings were taken under Section 54(6) of the Payment of Gratuity Act, 1972. The gratuity receivable by the Petitioner cannot be attached. The bank has deliberately put it into frozen account so as to deny payment to the petitioner. Moreover, the bank is seeking to adjust such amount receivable which the bank is not entitled to.

Section 13 of Payment of Gratuity Act, 1972 protects a gratuity payable under Act of 1972 from attachment in execution of any decree or order of any civil, revenue or criminal Court. Section 4 of Act deals with payment of gratuity. Sub-section (6) thereof permits an employer to forfeit gratuity on grounds specified therein. The gratuity of an employee whose services have been terminated for any act of wilful omission or negligence causing any damage or loss to employer will forfeit the gratuity to the extent of the damage or loss so caused. The gratuity payable to an employee may be wholly or partially forfeited for the grounds as provided in sub-clause (i) and (ii) of clause (b) of Sub-section (6) of Section 4. An employer forfeits gratuity on the happening of events specified in Section 4(6) of the Act of 1972 and not otherwise. Except the forfeiture provided for in Section 4(6) of the Act of 1972, gratuity is payable and is immune from attachment. The gratuity receivable by the employee is, therefore, protected.

In the present case, although Petitioner was discharged from service, in a disciplinary proceeding, order of punishment was without any financial implication. The order of punishment does not impose a forfeiture of gratuity. An employee of the bank may have dual capacities while dealing with the bank. A person can be an employee of the bank as well as its borrower at the same time. There will therefore be two contracts: the contract of employment and the contract of loan. As an employee, it may be entitled to receive gratuity for the services rendered in terms of the contract of employment. As a borrower, under the contract of loan, employee concerned can or may execute documents authorising the bank to adjust the amounts receivable as pensionary and retirement benefits including gratuity with that of the loan amount. The present case concerns gratuity only.

An employee is entitled to gratuity unless it is forfeited in the manner and for the grounds provided for in Section 4(6) of the Act of 1972. The gratuity received under the Act of 1972 is immune from execution of an order of Court. Therefore, a bank cannot approach a Court for the purpose of attaching a gratuity received or receivable by an employee including its own employee for adjustment toward the loan amount. The documents executed by the employee permitting the bank to adjust the pensionary benefits will not allow the bank to obtain an order of attachment from the Court in view of Section 13 of the Act of 1972. The same set of documents, therefore, should not be read to mean that, it would permit the bank to adjust the loan amount with the pensionary benefits on its own. Such permission would initiate against the provisions of Section 23 of the Contract Act, 1872. Even if the borrower is an employee of the bank, then also the bank cannot adjust the pensionary benefits with the outstanding loan amount on its own. The bank has to physically make over the gratuity amount to the employee. Upon the employee receiving the benefits, the employee concerned may voluntarily pay the loan amount to the bank. There has to be an act of wilful volition by the employee concerned in making over the gratuity to the bank towards adjustment of the loan amount after receipt of the gratuity amount. Deposit of the pension amount in the bank account in the name of the employee and having the same adjusted towards the loan amount on the strength of documents executed by the employee will not suffice.

Essentially, the bank is seeking to obtain relief indirectly which it could not obtain directly. It could have raised the issue of adjustment or banker's lien before the competent authority. It did not do so. A banker's lien or a general lien is available only when a property belonging to the borrower comes into the custody of the bank in its usual course of business. Contract of employment between the bank and its employee gives rise to the earnings of employee. Such earnings are property of employee, which the bank, who pays or makes over the same to its employee. Moreover, by payment of amount in a bank account of employee, the employer cannot claim that, quantum of retiral benefits such as pension or gratuity paid to the employee, come into its possession and, therefore, can be adjusted or a banker's lien can be validly exercised thereon. Adjustment or exercise of banker's lien can be made, only if, the employee makes over the pensionary benefits voluntarily to the bank. In this case, the petitioner has not done so. Respondent No. 2 is directed to take immediate steps for the purpose of recovering the amount due to the Petitioner from the bank as a public demand, and make over the same to the petitioner forthwith, on realization.

Tags : GRATUITY ENTITLEMENT LOAN ADJUSTMENT