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2020 DIGILAW 64 (ORI)

Baisnab Charan Panda v. State Of Orissa

2020-02-24

BISWANATH RATH

body2020
JUDGMENT Biswanath Rath, J. - Heard Mr.D.K.Panda, learned counsel for the petitioners, learned Additional Government Advocate for the opposite party nos.1 and 4 and Mr.B.Routray, learned counsel appearing for the contesting opposite party nos.2 and 3. 2. This writ petition has been filed with the following prayer: "Under the circumstances it is humbly prayed that the Hon'ble Court may be pleased to issue a writ in the nature of writ of mandamus directing the OPs to take into consideration their past services which they had rendered in the Central Cooperative Bank and to compute the pension taking into consideration the total length of service and revise the pension and the gratuity and to grant benefits in accordance with law; AND to allow the writ petition. And for this act of kindness, the petitioners as in duty bound shall ever pray." 3. Short background involving the case is that all the petitioners have initially joined in the service of Central Co-operative Bank ('CCB' in short) on different dates as per Annexure-1. While they were continuing under the CCB, based on recommendation calling for sponsoring eligible employees from the Central Co-operative Bank for their induction/absorption in Orissa State Co-operative Bank ('OSCB' in short) involving the employees having five years experience and also eligible to apply for absorption in OSCB, it appears names of all the petitioners after a particular length of service indicated through Annexure-1, being sponsored, they have all joined in OSCB as the officers and subsequently by virtue of their merit, they have been promoted on various posts such as, Additional General Manager/Deputy General Manager/General Manager/Chief General Manager respectively. Finding discrepancy in the matter of gratuity and also in the matter of grant of full pension and also finding no response to their representations in such regard to the employer, the petitioners were compelled to file writ petition with the prayer referred to herein above. 4. Sri Panda, learned counsel for the petitioners taking this Court to the development through the resolution of the State Co-operative Bank, vide Annexure-5, Clause-7 at Page-18 contended that for the resolution already there of the State Co-operative Bank, their employer was under obligation to pay gratuity and pension taking into account their past services in the CCB. 4. Sri Panda, learned counsel for the petitioners taking this Court to the development through the resolution of the State Co-operative Bank, vide Annexure-5, Clause-7 at Page-18 contended that for the resolution already there of the State Co-operative Bank, their employer was under obligation to pay gratuity and pension taking into account their past services in the CCB. Sri Panda further in reference to Annexure-6 contended that since the employer passed a further resolution in taking away the benefits under Clause-7, Annexure-5 through Annexure-6, the same not only becomes bad but for being prospective application has no application to the case at hand. In the circumstances, Sri Panda, learned counsel for the application of Clause-7 applies to all such employees existing by the date of resolution dated 06.11.1999 contended that all these petitioners are to be considered for appropriate pension and gratuity taking into consideration their past service for the information provided vide Annexure-1. Sri Panda further taking this Court to the decision of this Court in the matter of similarly situated person, in the case of Birendra Kumar Roy Vrs. Managing Director, The Orissa State Co-operative Bank Ltd., Pandit Jawaharlal Nehru Marg, Bhubaneswar, Dist.-Khurda, 2006 1 OrissaLR 161 contended that considering the introduction of subsequent resolution through Annexure-6, this Court while allowing the writ petition in favour of said Birendra Kumar Roy directed the authorities to take into account the past service of the petitioners therein in the Central Co-operative Bank, Balasore for the purpose of retiral benefits and also directed for calculation of differential amounts and payment of the same to the petitioner therein within a period of six months. In further reference to the case through the Hon'ble Apex Court in the case of P.Ramakrishnam Raju Vrs. Union of India and others, 2014 AIR(SC) 1619 involving an extreme case while the Hon'ble Apex Court directed for taking into account the seven years practice period of a lawyer for the purpose of counting of full pension involving a High Court Judge. It is for the application of both the judgments to the case at hand, Sri Panda, learned counsel for the petitioner prayed for allowing the writ application and grant of appropriate relief. 5. Mr. It is for the application of both the judgments to the case at hand, Sri Panda, learned counsel for the petitioner prayed for allowing the writ application and grant of appropriate relief. 5. Mr. Routray, learned counsel appearing for the opposite party nos.2 and 3 with reference to the stand of the opposite parties at paragraphs-4, 8, 13 and 21 contended that for the introduction of subsequent resolution by the State Cooperative Banks, all the petitioners lacked required number of service for getting full gratuity and full pension. Further taking into consideration the subsequent resolution of the State Co-operative Bank, vide Annexure-6, Sri Routray, learned counsel for the opposite party nos.2 and 3 also submitted that for the subsequent resolution not being challenged by either of the petitioners, the same is binding on the petitioners involved herein. Answering on the claim of Sri Panda on the applicability of the decisions referred to herein above, Sri Routray opposed to the claim made by Sri Panda under the premises that the cases referred to hereinabove stands on different footing. Mr. Routray, learned counsel thus contended that both the decisions have no application to the case at hand. 6. Considering the rival contentions of the parties, this Court finds there is no denial to the fact that all these petitioners were in employment under the Central Cooperative Bank, a subsidiary of State Government and as appearing at Annexure-1 all of them have already completed adequate number of service under CCB before switching over to OSCB. For there being no dispute that Central Co-operative Bank employment as well as the State Co-operative Bank employment are both under the establishment being directly controlled by State of Orissa, this Court finds for change of employer in the event of any short fall for the purpose of full retiral benefit is there, particularly for an employee getting full pension and gratuity both the establishment being under the control of State Govt., service period under the CCB ought to have been taken into consideration for the purpose of retiral benefits. It is at this stage this Court observes for the settled position of law to take into account the service period of the previous employment under the State of Orissa there was no necessity to bring the subsequent resolution under Annexure-6 by the State Co-operative Bank. It is at this stage this Court observes for the settled position of law to take into account the service period of the previous employment under the State of Orissa there was no necessity to bring the subsequent resolution under Annexure-6 by the State Co-operative Bank. Even assuming that the State Co-operative Bank has brought the further resolution, vide Annexure-6, resolution vide Annexure-5 since a beneficial resolution, the resolution vide Annexure-6 should have been prospective and could not have taken away the benefit already accrued to the petitioner without involving the person likely to be affected in such process. This Court further declares resolution vide Annexure-6 since otherwise prospective has no application to the employees already in employment by the time the resolution vide Annexure-6 was passed. In the circumstances, this Court while allowing the writ application directs the opposite parties to take into account the service rendered by the petitioners in Central Co-operative Banks prior to their switching over to OSCB for the purpose of counting for the retiral dues, like gratuity and pension involving all the petitioners. The entire exercise involving all these petitioners shall be concluded within a period of one and half months from the date of service of copy of the judgment of this Court on the opposite parties. For the determination of the case in favour of the petitioner and for illegal deprivation of the benefit to the petitioners, this Court directs the petitioners are also entitled to interest @ 6% on the arrear all through. In the result, the writ petition succeeds. There shall be no order as to costs.