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2019 DIGILAW 1348 (JHR)

Jamuna Prasad Singh v. State of Jharkhand

2019-07-26

SANJAY KUMAR DWIVEDI

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ORDER : 1. Heard Mr. Saurabh Shekhar, learned counsel for the petitioners, Mr. M.K. Roy, learned counsel for the respondents-Bank and Ms. Amrita Sinha, learned counsel for the respondents-State. 2. The petitioners have preferred this writ petition for quashing part of the Circular dated 03.03.2006 as contained in Memo No. 342 whereby the services rendered by the petitioners in the erstwhile bank i.e., Daltonganj Central Cooperative Bank Limited has been excluded and decision has been taken that all the petitioners are not entitled to get arrears of salary and their seniority will be counted from the date when they will give their joining after the said circular. 3. The petitioners were initially appointed in Daltonganj Central Cooperative Bank Ltd., the date of appointment of the petitioners have been provided by way of Annexure-1 to the writ petition. Thereafter, the petitioners were discharging their duties to the utmost satisfaction of the respondent-Bank. When the said Daltonganj Central Cooperative Bank Ltd was facing some financial problem, a policy decision was taken to liquidate that bank and ultimately by notification dated 18.07.2005 the bank was liquidated and thereafter under the Jharkhand State Co-operative Societies Act, 1935, the Deputy Commissioner, Palamau was appointed as the liquidator by the Daltonganj Central Cooperative Bank Ltd. Pursuant to that the Deputy Commissioner acted for the liquidation of the bank and the matter has been taken by the State Government for adjustment of the services of the employees working in the Daltonganj Central Cooperative Bank Ltd., vide letter dated 05.09.2005. A committee was constituted to collect certain data and details of the employees since the matter for adjustment of the employees of Cooperative Bank was pending before the Government and, accordingly, a details of the employees who were working in Daltonganj Central Cooperative Bank Ltd., was prepared and it was furnished before the said committee, and accordingly, a policy decision was taken and by way of the circular dated 03.03.2006, it was decided that all the employees of the Daltonganj Central Cooperative Bank Ltd, Palamau shall be adjusted in other Cooperative Bank Ltd. of Jharkhand but a rider was put in that circular by way of clause 9, which says that the employees whose services are being adjusted will not be entitled to claim any benefit of past service. Accordingly, the services of these petitioners have been absorbed in the Central Cooperative Bank Ltd. in the State of Jharkhand. The petitioners accordingly joined in the year 2007-2008. Therefore, the petitioners preferred this writ petition in the year 2008 and challenged the part of the said circular, which restricts the counting of passed benefits of service which they have rendered in the earlier bank. 4. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner assailed the part of said circular dated 03.03.2006 on the ground that once a right has been accrued under the statutes that right cannot be taken away by way of resolution. Referring to Article 300 (A) of the Constitution of India, he argued that pension is a property and as such that right cannot be taken away by way of circular/resolution of the Government. He further submits that the service rules of the Central Cooperative Bank have been framed on the strength of Section 66 (B) of the Bihar Co-operative Societies Act, 1935, in which, the Rule 32 says about Payment of Gratuity to all the eligible employees. He further submits that looking into Article 309 of the Constitution of India read with this service rule, the right of payment of Gratuity cannot be taken away. He further invites the attention of this Court to Section 4 of the Payment of Gratuity Act. In view of the Gratuity Act, the petitioners are entitled for payment of Gratuity and by way of such rider in circular dated 03.03.2006 the right of Payment of Gratuity of the petitioners have been taken away. He further submits that word ‘absorption’ is equal to ‘amalgamation’ ¼lek;kstu½+- 5. He relied upon the decision rendered in the case of Dhananraj Prasad Vs. State of Bihar reported in 2015 SCC Online Pat 6237. Relevant paragraph nos. 3 and 4 of the said judgment is quoted herein below:- “3. If this be so then the Court fails to understand as to how the respondent authorities are taking a stand that there is no scheme for grant of ACP for employees of the Corporation and that it was a case of fresh appointment of the petitioners because they were also put on probation. 4. The notification contained in Annexure-2 (A) uses the word “Samayojan”. The word “Samayojan” means absorption and not fresh appointment. 4. The notification contained in Annexure-2 (A) uses the word “Samayojan”. The word “Samayojan” means absorption and not fresh appointment. If this be so then a misleading kind of counter affidavit has been filed on behalf of the State trying to deny the benefit to which the petitioners may be entitled to. 6. He further submits that judgment of Dhananraj Prasad (supra) has been affirmed by the Division Bench of Patna High Court. According to the meaning found in Chamber’s 20th Century Dictionary, the word ‘absorption’ means the act of absorbing and ‘absorb’ means to stuck in : to swallow up : to imbibe to take in : to incorporate to take up and transform (energy) instead of transmitting or reflecting. On the extent of these arguments, he submits that the petitioners are entitled at least for payment of gratuity which right they have already accrued with effect from 1980 the date when they have been appointed initially in the Daltonganj Central Cooperative Bank Ltd. 7. On the other hand, Mr. M. K Roy, learned counsel for the respondents-Bank submits that the bank is not responsible for payment of gratuity. He further submits that so far the gratuity is concerned, the petitioners may approach the Daltonganj Central Cooperative Bank Ltd., for payment of Gratuity. He further submits that in view of the RBI guidelines the banks are not in a position to expend more than 2 % of their working capital. He further submits that they have not taken over the asset and liability of the Daltonganj Central Cooperative Bank Ltd. 8. Ms. Amrita Sinha, learned counsel for the respondents-State submits that the State is not liable to pay the gratuity to the petitioners. The petitioners are the employees of Daltonganj Central Cooperative Bank and as such, they can claim the gratuity from that bank as such she adopted the argument of the cooperative Bank mutatis mutandi. She further submits that in view of Cooperative Manual of Chapter VI-C, Section 44 AV (2)-Autonomy to STCCS, in which, it is provided that the Cooperative Credit Structure Society shall have freedom to decide its financial and internal administrative matters. On the extent of these facts, she further submits that they are independent body and the State has no role to play. On the extent of these facts, she further submits that they are independent body and the State has no role to play. She further submits that the petitioner have joined in the new bank without any protest and as such, they are not entitled to challenge that part of circular which is contained in Clause-9 of the said circular. 9. Having heard learned counsel for the parties, this Court comes to a conclusion that the prayer of the writ petition is fit to be allowed for the following reasons: (i).The Circular dated 03.03.2006 has been issued by the State of Jharkhand, in which rider by way of Clause 9 has been provided for which no consent of the employees have been taken as to whether they want to be absorbed in the new bank or not. Had there would have been any option, the matter would have been different. (ii).The Service Rule framed for the Central Co-operative Banks on the strength of Section 66B of the Bihar Co-operative Societies Act, 1935 wherein Rule 32 provides for payment of gratuity to all the eligible employees. (iii). Section (4) of the Payment of Gratuity Act is a beneficial piece of legislation wherein the same provision is there. On the extent of this fact the right of the petitioner of payment of gratuity particularly denying their past service cannot be taken away. (iv).Pension is a property under Article 300-A of the Constitution of India is set at rest by various authorities of the High Courts and Supreme Court. The Constitution of India is the fountain of all the Statutes and, accordingly, by way of circular the right which has already been accrued in favour of the petitioners cannot be taken away. (v).The petitioners are the employees who were not in a position to bargain with the State and as such, they accepted the absorption order. In such view of the matter, the argument advanced by learned counsel for the State has got no legs to stand. (vi).Section 44 AV (2) of Chapter VI-C of Cooperative Manual has come into effect in the year 2011 as such, it cannot be operative retrospectively whereas the right of these petitioners have already been accrued since 1980. 10. As a cumulative effect of all the reasons provided herein above, the writ petition is allowed. The circular dated 03.03.2006, so far as clause-9 is concerned, is hereby quashed. 10. As a cumulative effect of all the reasons provided herein above, the writ petition is allowed. The circular dated 03.03.2006, so far as clause-9 is concerned, is hereby quashed. The said circular is modified to the effect that the petitioners shall be entitled for payment of gratuity taking into account the past services. 11. The respondent-State of Jharkhand is directed to take all hectic steps so that the benefit of gratuity be extended to the petitioners as early as possible, but not later than eight weeks from the date of receipt/production of copy of this order. 12. With the aforesaid observations and directions, the writ petition stands allowed and disposed of.