Jai Bhagwan vs Rewari Central Cooperative Bank Limited

S.S. Sudhalkar, J. (Oral)

By this writ petition, the petitioner is challenging the order dated 3.12.1999, copy annexure P/9, vide which he was not considered for promotion to the post of Clerk because he was not having the necessary working experience of five yeas in the Bank''s service.

Petitioner was working as Peon and the promotion he is seeking is to the post of Clerk. The rule specifying the eligibility for promotion is reproduced at Annexure P/7 and the relevant portion of the rule for promotion is as under :-

"amongst Daftari; Peons/Drivers who have passed matriculation examination and have five years experience."

Counsel for the respondent-Bank has raised a preliminary objection stating that because the petitioner did not have five years'' working experience, he was rightly ignored for promotion. Counsel for the petitioner argued that the petitioner joined service in the year 1990 as Clerk, however, his services were terminated on 27.5.1994 and was reinstated on 9.1.999, and according to him, if this period is counted, then he was already eligible for promotion long back. He has ar- gued on that the date of passing of the order, Annexure P/9, he was otherwise also eligible.

Counsel for the respondent argued that the petitioner being out of service from 27.5.94 to 9.1.1999 did not have the necessary working experience . Counsel for the petitioner has drawn our attention to the award of the Labour Court, Annexure P/4. Vide award the petitioner was ordered to be reinstated in service with full back wages. The award did not specify about continuity of service. Thereafter, the petitioner filed Civil Writ Petition No. 6735 of 1999. By order dated 30.11.1998, the learned Division Bench in the said writ petition, held that the petitioner shall be entitled to reinestatment with continuity of service. During the course of hearing in that writ petition, the petitioner had made a statement giving up his claim regarding back wages if he was granted continuity of service, which was granted.

The question now remains is that when the reinstatement is with continuity of service, whether the respondent-bank can contend that the period of unlawful termination or forced absence can be excluded for the purpose of counting experience. The fact that the termination of service was set aside shows that the termination was wrong and if the termination was wrong, the respondent cannot take advantage of the same. It is a forced absence on the petitioner on which he had no control and if because of the forced absence he is denied eligibility of completing necessary experience of five years for promotion, it will not only be cruel but it will also be absurd. Moreover, the eligibility mentioned in the rules, Annexure P/7 reproduced above, does not state that it should be working experience.

Counsel for the petitioner has cited the case of Dalip Singh v. State of Haryana, reported as 1999(3) SCT 385. In that case, there was a compromise before the Labour Court postulating the reinstatement of the workmen with continuity of service but without back wages. The petitioners, therein, had not worked for three years preceding 1.1.1996. The request for entitlement for regularisation was rejected by the employer. It has been held that the inter-yen jng period cannot be treated differently for regularisation in accordance with the policy of the Government, It has been observed by the learned Division Bench as under :-

"5. Shri Parmod Goyal, learned Deputy Advocate General made half-hearted attempt to convince us that the petitioners are not eligible to be considered for regularisation of services because they have not worked for 3 years proceeding 31.1.1996 and they have not been paid for that period. However, we have not felt impressed and are not inclined to agree with him that notwithstanding the award passed by the Labour Court on the oasis of the compromise arrived at between the parties that the petitioners will be reinstated with continuity of service, they are not to be treated as continuing in service for the purpose of consideration of their cases for regularisation of service. The award passed by the Labour Court which must be treated as statutory in character by virtue of Section 18 of the 1947, has the effect of conferring a right upon the petitioners to be treated as continuing in service for the entire period between the date on which the respondents discontinued their engagement and the date on which they were allowed to re- join duties in compliance of the award dated 10.6.1996. Therefore, it is not possible to treat the intervening period differently for the purpose of considering the petitioners for regularisation of their services in accordance with the policy framed by the government."

The principle laid down by the Division Bench applies to this case also. Moreover, as stated above, the petitioner was not responsible for the forced absence. The denial of benefits for the period of forced absence cannot be imposed upon the petitioner because the action of the respondent-bank forcing the absence on the petitioner has to be treated as illegal in view of the continuity of service ordered by the Division Bench in the writ petition, earlier filed by the petitioner.

In view of the above reason, we quash the impugned order dated 3.12.1999, copy Annexure P/9 qua the petitioner and direct respondent No. 1 to consider the petitioner for promotion to the post of Clerk, from the date his juniors were promoted.

Petition allowed.