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Jharkhand High Court · body

2010 DIGILAW 671 (JHR)

Gandauri Rabidas v. State of JharKhand

2010-06-25

D.G.R.PATNAIK

body2010
Order Heard the learned counsel for the parties. 2. The petitioners, who happen to be the employees of the Hazaribagh Central Co-operative Bank Ltd., Hazaribagh (Respondent No.2) and who are working on daily wages since the past 20 years continuously have, in this writ application, prayed for the following reliefs: - (i) For quashing the order dated 24.1.2005 (Annexure-4), whereby the order of regularisation of the services of the petitioners with effect from 28.2.04 (Annexure-3), issued by the Secretary, Co-operative Department, Government of Jharkhand (Respondent No.4), has been cancelled by his successor in office. (ii) For quashing the order dated 10.2.2005 (Annexure-5), whereby the Respondent NO.4 has ordered for recovery of salaries and wages to be paid to the petitioners after their regularization. (iii) To direct the Respondents to pay the petitioners the arrears of salaries and other admissible benefits together with interest @ 18 per cent per annum from 31.1.2000 when the Board of Directors-Managing Committee of the Hazaribagh Central Co-operative Bank Ltd. resolved to regularize the services of the petitioners subject to concurrence of the Registrar, Co-operative Societies. (iv) For quashing the order dated 30.11.2009, by which the earlier order of regularization has been withdrawn and the petitioners have been again de-regularized. 3. From the rival submissions, it appears that the admitted facts are as follows: - The process of regularization of services of the petitioners was initiated by the Secretary, Co-operative Department, Government of Jharkhand (Respondent No.4)' by letter dated 25.2.2003 and he had directed the Managing Director of the Hazaribagn Central Co operative Bank Ltd. (Respondent No.3) to submit the details regarding the employees who are working in the Bank on daily wages for the past 15 years. In response to the directions, the Respondent No. 3 by his letter dated 21.3.2003, submitted the required details of the employees. Later, by letter dated 18.2.2004, the Respondent No. 3 has again requested the concerned authorities for regularization of the services of the employees who are working for the past 15 years on daily wage basis, against the 99 vacant sanctioned posts. By order/notification dated 28.2.2004, issued by the Secretary, Cooperative Department, Government of Jharkhand (Respondent No.4), the services of all the petitioners were regularized. However, after 11 months, by the impugned order dated 24.1.2005 (Annexure-4), the services of the petitioners were de-regularized. By order/notification dated 28.2.2004, issued by the Secretary, Cooperative Department, Government of Jharkhand (Respondent No.4), the services of all the petitioners were regularized. However, after 11 months, by the impugned order dated 24.1.2005 (Annexure-4), the services of the petitioners were de-regularized. This was followed by another impugned order dated 10.2.2005 (Annexure-5), whereby the Respondent No. 4 has ordered for recovery of the salary/wages, paid to the petitioners after their earlier regularization and prior to the date of de-regularization. 4. Being aggrieved with the order of de-regularization and also with the order of recovery of their salary/wages, the petitioners have filed the present writ application. This Court vide order dated 5.7.2005, had stayed the operation of the recovery order. 5. During the pendency of this writ application, the Respondents by letter dated 27.6.2009, regularized the services of the petitioners. However, such order of regularization was abruptly withdrawn after five months, by the impugned order dated 30.11.2009. 6. The claim of the petitioners is based on the following grounds: - (i) The petitioners have been working for more than 20-29 years continuously in the said Bank and have been discharging the same nature of work, which are being rendered by the regular employees of the Bank. (ii) Vide Resolutions dated 25.2.2003 and 31.1.2000, the Board of Directors of the Hazaribagh Central Cooperative Bank Ltd. had approved the proposal of the Managing Committee for regularization of the services of the daily wages employees. The Joint Registrar of the Co-operative Department, North Chhotanagpur Division, Hazaribagh had also recommended and directed the concerned authorities of the Respondents for regularization of the services of the daily wages workmen. 7. Mr. Anil Kumar Sinha, learned Senior Advocate arguing the case on behalf of the petitioners, submits that the service' condition of the employees of the Hazaribagh Central Co-operative Bank Ltd. is governed by the Bihar Co-operative Societies Act, 1935 and' its Rules. Learned counsel explains that Rule 33 of the Bihar Co-operative Societies Rules, 1959 empowers the Registrar of the Cooperative Societies to frame the service conditions and to regularize the services of the employees of su.ch Societies. Learned counsel argues that this being the position, the impugned order passed by the Secretary, Co-operative Department of the State Government, is illegal and beyond authority. Learned counsel argues that this being the position, the impugned order passed by the Secretary, Co-operative Department of the State Government, is illegal and beyond authority. Expressing the further grievance of the petitioners, learned counsel submits that vide orders dated 12.11.1998 (Annexure-8) and 5.11.1999 (Annexure-8/1), two similarly situated daily wages employees were regularized, thereby ignoring and discriminating the case of the petitioners, Learned counsel argues further, that the work rendered by the petitioners are perennial and regular in nature and therefore, the petitioners have a legal right for security of their services and hence, deserve regularization of their services. Learned counsel argues further that the grounds, taken for de-regularization of the petitioners' services, is totally incorrect and misleading, since the balance-sheet of the Respondent-Bank of the year 2008-09 shows that the Bank's present financial position is very sound and therefore, it cannot take the plea that the regularization of the services of the petitioners would entail heavy financial burden on the Bank. It is further argued that as many as 27 employees, transferred from the Daltonganj Central Co-operative Bank, were absorbed in the Hazaribagh Central Co-operative Bank Ltd. on regular basis in the guise of the State Resolution, ignoring the claim of the petitioners. Learned counsel argues that considering the fact that 27 employees from outside could be absorbed on regular basis, the plea of financial crunch as raised by the Respondent-Bank, cannot be deemed as genuine. Referring to the order, passed by this Court in a similar case, filed by other similarly situated daily wage employees of the Singhbhum District Central Co-operative Bank, vide C.W.J.G. No. 3395 of 1998 (R), learned counsel submits that pursuant to the impugned order, passed by this Court in the aforesaid case, the services of the daily wages employees of the concerned Bank, were regularized by the concerned Bank. The same benefit under similar circumstances, was also extended to the daily wage employees of the Central Cooperative Bank Ltd., Koderma pursuant to the orders, passed by this Court in another case vide W.P. (S) No. 5681 of 2002, filed by similarly situated daily wage employees. The same benefit under similar circumstances, was also extended to the daily wage employees of the Central Cooperative Bank Ltd., Koderma pursuant to the orders, passed by this Court in another case vide W.P. (S) No. 5681 of 2002, filed by similarly situated daily wage employees. Learned counsel argues further that under the earlier order of regularization having been passed on the basis of the Resolution adopted by the Board of Directors of the Respondent-Bank, with the approval of the appropriate authority of the Co-operative Department of the State Government, the same could not have been withdrawn unilaterally and arbitrarily without issuing any show cause notice to the petitioners and without affording any opportunity of being heard. Furthermore, in any case, the undisputed facts being that the petitioners have been discharging the same nature of work as done by the regular employees, the petitioners are certainly entitled to claim the salary/wages on the principle of 'Equal Pay for Equal Work'. In support of his argument, learned counsel refers to and relies upon the judgment of the Supreme Court in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey and Others reported in (2007) 11 SCC 92 and explains further, that the ratio as decided by the Supreme Court in the case of Secretary, State of Karnataka & Others vs. Uma Devi & Others case reported in (2006) 4 SCC 1 [: 2006(2) JLJR (SC) 282], has no application in the facts of the present case. 8. Countering the arguments and the stand taken by the petitioners, learned counsel for the Respondent Nos. 4 and 5, namely, the Secretary and the Registrar, Co-operative Department, Government of Jharkhand, argues that the petitioners cannot claim any benefit on the basis of Annexure-3, which was a letter issued by the Secretary of the Co-operative Department including the process of regularization of the daily wage employees of the Respondent-Bank, as because such act of transfer was, in fact, in excess of jurisdiction conferred upon the State Government by virtue of Section 66B of the Jharkhand Co-operative Societies Act and Rule 33 of the Jharkhand Co-operative Societies Rules, 1959. It is explained that the provisions of Section 66B of the Act confers powers on the State Government, by special or general order, to determine the nature and number of posts to be created, the mode of recruitment of personnel, the qualification, the age and experience, the pay-scale and the other emoluments, the method of recruitment, the condition of service and the disciplinary procedure to be followed. The provisions under the Act do not confer any power of appointment to the State Government. Similarly Rule 33 of the Rules confers powers upon the Registrar, Co- operative Society to impose conditions for appointment, qualification, designation, scale of pay and traveling allowance and similar other conditions. The powers of appointment, therefore, is the prerogative of the Management of the Co-operative Society, though while exercising such powers, it is guided by the guidelines framed under Section 66B of the Act and Rule 33 of the Rules. It is argued on behalf of the Respondent Nos. 4 and 5 that the subsequent letter, issued by the Respondent No.4, which the petitioners have construed as an order of de-regularisation, is nothing but recalling the earlier order of de-regularisation on realization of the fact that the State Government has no jurisdiction to pass any orders of regularization of the daily wage employees of the Government. The Respondent Nos. 4 and 5 would further want to justify the impugned order of de-regularization/cancellation of the earlier regularization on the ground that the Respondent-Bank is covered under the provisions of Section 11 of the Banking Regulation Act, 1949 which stipulates that the permission granted by the Reserve Bank of India to carryon banking business in India may be cancelled any day and since by the process of regularization, the financial burden of the Respondent-Bank had been enhanced and therefore, the Bank was more vulnerable to the cancellation of its license through banking business. It is further explained that the order of regularization of the daily •wage employees was passed in violation of the provisions of Section 66B of the Co-operative Societies Act and also in violation of the directions contained in the letter dated 7.8.2000 (Annexure-A), issued by the Registrar, Cooperative Societies, Government of Bihar, under which the direction was contained that the employees of such Co-operative Banks, which are covered under Section 11 of the Banking Regulation Act, 1949 and whose managerial expenses exceed 2% of the working capital, shall not be given the benefit of enhancement of salary. Rather, their revision of salaries shall remain frozen. It is further argued that since the order of regularization of the petitioners was passed without calling for a report from the Bank regarding the financial burden which would entail upon the Government, such order of regularization was improper and had to be recalled. Explaining the circumstances under which, the subsequent order, regularizing the services of the 16 petitioners, was passed and the same was subsequently withdrawn by the impugned order dated 30.11 .2009, it is stated that the order of regularization was passed on the basis of the judgments of the Hon'ble Supreme Court, which stand overruled and as soon as the Registrar, Co-operative Societies (Respondent No.4), had realized the error consequently, the Respondent No. 4 recalled his earlier order of regularization. Replying to the petitioners' argument that 27 employees of the erstwhile Daltonganj Central Co-operative Bank were absorbed in regular services of the Respondent-Hazaribagh Central Co-operative Bank Ltd., the stand taken by the Respondent No. 4 is that such absorption was made pursuant to the policy decision taken by the Government of Jharkhand and the petitioners who are affected by such decision of the State Government, did not challenge the said decision. As regards the contention of the petitioners that the Respondent-Bank is running in profit and is not facing any financial crunch, the counter statement of the Respondent No. 4 is that though the balance-sheet of the Respondent Bank for the year 2008-09 declares that the Bank had earned a profit of Rs. 5,96,05,849.55/but the fact is that the accumulated loss of the Bank over the several years, was more than Rs. 12,22,54,639.74/-. 5,96,05,849.55/but the fact is that the accumulated loss of the Bank over the several years, was more than Rs. 12,22,54,639.74/-. As such, the Respondent-Bank is still not in a position to comply with the provisions of Section 11 of the Banking Regulation Act, 1949 and is not even in a position to maintain the reserve of One Lakh rupees. The gist of arguments submitted on behalf of the Respondent Nos. 4 and 5, is that the earlier orders of regularization of the petitioners, passed by the Registrar, Co-operative Societies, was beyond his jurisdiction, since the Registrar is not competent under Rule 33 of the Rules for passing any such orders. The question as to whether to regularize the daily wages employees or not, is exclusively within the jurisdiction of the Managing Committee of the Bank or the administrator of the Bank depending on a host of factors. Furthermore, the procedure for regularization cannot be legally tenable in view of the judgment of the Supreme Court in the case of Uma Devi (supra). 9. From the counter affidavit of the Respondent Nos. 2 and 3, namely, the Hazaribagh Central Co-operative Bank Ltd., it appears that it has virtually adopted the same stand as taken by the Respondent Nos. 4 and 5, on the ground that the Respondent-Bank is covered under the provisions of Section 11 of the Banking Regulation Act, 1949 and considering the fact that the Bank is presently undergoing a financial crunch, the regularization of the services of the petitioners would considerably enhance the managerial expenses of the Bank and it would exceed the limit of two per cent of the Bank's working capital and thereby rendering the Bank's license for banking business, liable to be cancelled by the Reserve Bank of India and hence, the services of the petitioners cannot possibly be regularized. 10. From the rival arguments of the learned counsel for the parties, the significant features, which stand out, are as follows: - (i) The services of the petitioners are being continuously taken by the Respondent-Bank for the past 20-29 years. (ii) The services rendered by the petitioners are the same, which are being rendered by the regular employees of the Bank. The regular employees of the Bank have therefore the privilege of enjoying the benefit of a higher salary than the petitioners. (ii) The services rendered by the petitioners are the same, which are being rendered by the regular employees of the Bank. The regular employees of the Bank have therefore the privilege of enjoying the benefit of a higher salary than the petitioners. (iii) The Board of Directors of the Respondent-Bank by its Resolution dated 31.1.2000 had resolved to regularize the services of the petitioners, though subject to the concurrence of the Registrar, Co-operative Societies. After the concurrence of the Registrar, Co-operative Societies, the services of the petitioners were regularized. 11. It would be manifest that admittedly, though the Co-operative Societies Act and the Rules there under, empowers the State Government to frame Rules and guidelines, laying down the service conditions of the employees of the Co-operative Bank, but the power to appoint the employees of the Bank is within the exclusive domain of the Managing Committee of the concerned Bank. It is apparently in exercise of its powers that pursuant to the Resolution adopted by the Board of Directors, the Managing Committee of the Respondent-Bank had• approved the regularization of the services of the petitioners. Since, as per the stand taken by the Respondent Nos. 4 and 5 as also by the Respondent-Bank, the Registrar Cooperative Society had no power to appoint the employees of the State Government, the requirement of his approval for regularization of the services of the daily wage employees was uncalled for and the purported approval, as given by the Secretary of the Co-operative Societies for the regularization of the services, was redundant. The logical inference from fact that on the date when the Board of Directors had resolved to regularize the services of the petitioners and pursuant to such Resolution adopted by the Managing Committee of the Respondent-Bank, the services of the petitioners were regularized, is that while adopting the Resolution to regularize the services of the petitioners, the Managing Committee was aware of the fact that it was guided under the provisions of Section 11 of the Banking Regulation Act, 2000 and of its own financial limitations. The legitimate presumption from the above facts is that the order of regularization was passed by the Managing Committee of the Respondent-Bank after it was satisfied that the Bank is capable enough to bear the enhanced financial burden upon the regularization of the services of the petitioners. The legitimate presumption from the above facts is that the order of regularization was passed by the Managing Committee of the Respondent-Bank after it was satisfied that the Bank is capable enough to bear the enhanced financial burden upon the regularization of the services of the petitioners. The decision to regularize the services of the petitioners has to be deemed as an independent decision of the Managing Committee of the Respondent-Bank. Once, the services of the employees are regularized, such employees are entitled to all the consequential benefits of regularization including the benefits of the pay-scales, applicable to their individual posts assigned to them. If this is to be undone, then it has to be resorted to only in accordance with the due procedure of law. As otherwise, it would amount to depriving the employees of their rights, which had accrued to them, upon their regularization against the sanctioned vacant posts. 12. Even otherwise, admittedly, the petitioners had completed 20-29 years of continuous service. Admittedly, the petitioners were appointed on the existing sanctioned vacant posts. The petitioners therefore, cannot be denied the benefit of the decision taken by the Managing Committee for their regularization. The services rendered by the petitioners are the same, which are being rendered by the regular employees of the Respondent Bank. There is no reason as to why the petitioners should not be given the same benefits of pay and associated benefits as given to the regular employees of the Bank on the principle of 'Equal Pay for Equal Work'. 13. Admittedly, even from the counter affidavit of the Respondent-Bank, it appears that against as many as 130 sanctioned vacant posts, there are 99 vacancies and it is on these vacancies that the present petitioners are being made to work on daily wage basis. 14. The facts, in the present case, would thus, demonstrate that the petitioners are being discriminated with other similarly situated employees of the Respondent-Bank. Such discrimination would be violative of Article 14 and Article 21 of the Constitution of India. 15. The reliance placed by the Respondent-Bank on the judgment of the Supreme Court in the Uma Devi's case (supra), in my opinion, appears to be misplaced. Such discrimination would be violative of Article 14 and Article 21 of the Constitution of India. 15. The reliance placed by the Respondent-Bank on the judgment of the Supreme Court in the Uma Devi's case (supra), in my opinion, appears to be misplaced. As pointed out above, the facts of the present case are distinguishable from the facts of the Uma Devi's case (supra) and therefore, the ratio decided in Uma Devi's case (supra), would not be applicable in the present case. 16. The plea taken by the Respondent-Bank that the regularization of the present petitioners would entail upon the Bank a heavy financial burden, in my opinion, is not tenable. The Board of Directors and the Managing Committee were presumed to be aware of the heavy financie1 burden, at the time when they had adopted the resolution to regularize the services of the employees. Furthermore, when the Respondent-Bank could absorb as many as 27 employees from the Daltonganj Co-operative Bank in 2006, and two similarly situated employees as the petitioners on the same financial status as now existing, then there is no reason why, the same benefit cannot be extended to the petitioners. 17. In the light of the above facts and circumstances, I find merit in this writ application. Accordingly, this writ application is allowed. The impugned orders of de-regularisation of the petitioners dated 24.1.2005 and dated 30.11.2009 and the impugned order dated 10.2.2005 whereby recovery of salary availed by the petitioners was passed, are hereby quashed. The, Respondents including the Respondent-Bank shall treat the petitioners as regular employees from the date when the Board of Directors and the Managing Committee of the Respondent-Bank had approved and taken the decision to regularize the services of the petitioners and give them all consequential benefits thereof.