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2019 DIGILAW 946 (RAJ)

Satya Narain Singh v. State Bank of India

2019-03-29

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT : Mohammad Rafiq, J. 1. This writ petition has been filed by Satya Narain Singh, ex-employee of the erstwhile State Bank of Bikaner and Jaipur, which is now merged with State Bank of India with the prayer that the provisions of Regulation 15 of the State Bank of Bikaner and Jaipur (Employees) Pension Regulations, 1995 to the extent it prohibits to count service rendered before appointment of an employee on permanent basis in the services of Bank, be declared unconstitutional or alternatively the respondents be directed to interpret the same in such a manner so as to include the service tenure before appointment of the petitioner on permanent basis in the Bank service towards qualifying service for the purpose of payment of pension, gratuity and other retiral benefits. 2. Facts of the case are that petitioner was appointed as a Clerk in the State Bank of Bikaner and Jaipur on 5.8.1971 on daily wage basis. His services were terminated on 9.6.1972. Thereafter an industrial dispute was referred at his instance to the Central Government Industrial Tribunal, New Delhi vide order dated 15.5.1980. Later on it was transferred to the Central Government Industrial Tribunal, Jaipur in the year 1981. There was a general agreement between the bank on the one hand and the Employees Association on the other hand. The respondent-Bank vide letter dated 18.4.1989 proposed to reinstate the petitioner in service as a temporary clerk/typist. Ultimately, the petitioner was reinstated in service vide order dated 18.11.1981. The back wages were also allowed to the petitioner, but only from 16.01.1976. 3. It may be significant to note that the petitioner filed S.B. Civil Writ Petition No. 2227/1990 before this court inter alia praying for the benefit of seniority, continuity in service to be counted from the initial appointment namely; 5.8.1978. Even then the High Court directed the respondent-Bank to make fixation of his pay taking into consideration his past service of 260 days, which he rendered prior to termination, after giving him an opportunity of being heard. The petitioner retired from service on 31.3.2007. It is thereafter that he filed the present writ petition. 4. Even then the High Court directed the respondent-Bank to make fixation of his pay taking into consideration his past service of 260 days, which he rendered prior to termination, after giving him an opportunity of being heard. The petitioner retired from service on 31.3.2007. It is thereafter that he filed the present writ petition. 4. Shri N.K. Bhatt, learned counsel for the petitioner has argued that the case of the petitioner is squarely covered by the division bench judgment of this Court in D.B. Special Appeal (Writ) No. 59/2018, State Bank of India vs. Kailash Chand Gupta dated 17.01.2017, which upheld the judgment of Single Bench of this Court allowing the writ petition no. 7928/2011 dated 10.11.2017. It is argued that the division bench held that since the termination order of the employee in that vide order dated 10.7.1973 was set aside by this Court directing the bank to reinstate him in service forthwith on the post he held at the time of termination with back wages for the period he was not gainfully employed elsewhere and pursuant to that judgment, the said employee was reinstated in service and fixed in the regular pay scale with increments for the intervening period from the date of initial appointment till reinstatement was granted to him. He would therefore be deemed to be in service of the respondent-bank throughout. Learned counsel argued that in the case of the petitioner also, he has been granted the back wages and continuity of service with effect from 15.01.1976 and even though he was reinstated in service on 18.4.1989. He was granted back wages and continuity in service with effect from 15.01.1976. His services were regularised later on and he was granted annual grade increments from 16.01.1976 after taking into consideration his past service. The controversy is covered by the aforesaid judgment of the division bench. 5. Learned counsel also submitted that service condition of erstwhile State Bank of Bikaner and Jaipur, which is now merged with State Bank of India was governed by the Shastri Award and the Desai Award till the retirement of the petitioner as there were no service Rules/Regulations regarding service conditions of them. 5. Learned counsel also submitted that service condition of erstwhile State Bank of Bikaner and Jaipur, which is now merged with State Bank of India was governed by the Shastri Award and the Desai Award till the retirement of the petitioner as there were no service Rules/Regulations regarding service conditions of them. Clause 8.33 of the Desai Award lays down that total period from the date of initial appointment whether permanent, temporary or on probation, in the bank to the day cessation of the Bank's service is countable for the purpose of payment of gratuity. The respondents are unduly misinterpreting the reinstatement order dated 18.7.1981. No benefit of past service and seniority for the purpose of allowance carrying post, provident fund, gratuity, etc. would accrue to him. But at the same time, the said order also states that he shall be entitled to increment for the temporary service as applicable to the temporary employees in the bank. It is argued that clause 15 of the Regulations of 1995 even if it ought to be in the facts of the case read out for the purpose of granting benefit of past service to the petitioner, reliance in its support is placed on the judgment of Larger Bench of this Court in Central Academy Society vs. Rajasthan Non-Government Educational Institution Tribunal, Jaipur & Ors. 2010 (3) WLC (Raj) 21. 6. Ms. Anita Agrawal, learned counsel for the respondents opposed the writ petition and argued that the judgment in Kailash Chand Gupta, supra, is distinguishable from the case of the petitioner. Even in that case of Kailash Chand Gupta, who was temporary appointee, his services were terminated on 10.7.1973. He approached the Industrial Tribunal. The Tribunal vide order dated 28.02.1987 held his termination to be unjustified, however, did not grant him reinstatement on the ground that he was working elsewhere. He challenged that award before this Court. The division bench of this Court held that the termination of workman was bad in law and held him entitled to reinstatement in service with back wages only for the period of six months, which is the period during which he remained unemployed and was not gainfully employed elsewhere. In those facts, the bank reinstated him in service, however treated his appointment as fresh appointment and it is this order, which was challenged by him again in the writ petition before this Court. 7. In those facts, the bank reinstated him in service, however treated his appointment as fresh appointment and it is this order, which was challenged by him again in the writ petition before this Court. 7. This Court allowed the writ petition with clear direction to count his past service from the date of initial appointment for all purposes. Such are not the facts of the present case where the petitioner has been taken back in service pursuant to agreement between the bank and the workman-association and therefore his reinstatement would be governed by the conditions of the agreement. 8. We have given our anxious consideration to the rival submissions and perused the material on record. 9. The conditions of the agreement on which much emphasis has been laid by the respondent for reinstatement of the petitioner to distinguish the case of the petitioner is reproduced hereinunder: "No benefit of the past service such as seniority in service for the purposes of allowance carrying post, provident fund, gratuity, promotion, etc. will accrue to you, save the increments for temporary service as applicable to temporary employees in the bank as per Rules in force. As already stated above, this benefit will be extended to you after your absorption in the service of bank." 10. The aforesaid condition merely provided that no benefit of the past service such as seniority in service for the purposes of allowance carrying post, provident fund, gratuity, promotion, etc. will accrue to petitioner, but at the same time, the aforesaid condition has permitted to grant the increments for temporary service as applicable to temporary employees in the bank as per Rules in force and also state that this benefit will be extended to him after his absorption in the service of bank. It is not in dispute that after his reinstatement in service, petitioner was eventually regularised in service of the bank. It is also not disputed that the petitioner was reinstated in the services of the bank on 18.7.1981 with back wages and continuity in service on the post of Clerk in the services of the erstwhile SBBJ with effect from 16.1.1976. He was granted regular pay scale, increments etc. for the intervening period. He was granted first annual grade increment with effect from 1.5.1976. He was granted regular pay scale, increments etc. for the intervening period. He was granted first annual grade increment with effect from 1.5.1976. In the cited judgment also, Kailash Chand Gupta was reinstated in service on 22.12.1988 and pay fixation was made granting him annual grade increments for the intervening period from the date of termination of service till the date of appointment. The Single Bench of this Court directed the respondents to consider his period of service from 18.9.1972 as qualifying service for the purpose of pension and retiral benefits. The division bench further held that if an employee is granted regular pay scale along with annual grade increments with continuity of service in the bank, is liable to be treated as qualifying service for all practical purposes and he is entitled to terminal benefits under the scheme of Regulation of 1995. Desai Award in clause 8.33, which was applicable to the petitioner herein at the relevant time lays down that the total period from the date of initial appointment whether permanent, temporary or on probation in the bank to the day cessation of the Bank's service is countable for the purpose of payment of gratuity. 11. In view of above discussion, while we are not inclined to declare Regulation 15 of the Regulations of 1995 as unconstitutional but considering alternative prayer of the petitioner, we are inclined to read it down so as to declare that the petitioner shall be entitled to count the entire period of service from the date of his initial appointment on 1.5.1975 on the post as the first annual increment accrued to him on 1.5.1976 till the date of his permanent employment on 5.9.1981 and thereafter till the date he retired from service on 31.3.2007, for the purpose of grant of pension, gratuity and other terminal/retiral dues. All the arrears pursuant to this direction with interest @ 6% per annum shall be paid to the petitioner within three months from the date copy of this order is produced before the respondents. 12. The writ petition is partly allowed accordingly.