1. Heard learned counsel for the petitioner and Sri Asit Kumar Chaturvedi, learned Senior Advocate, assisted by Sri Dharmendra Kumar Dixit, learned counsel for the respondents.
2. Two writ petitions have been filed by the petitioner namely Writ Petition No.3402 (SS) of 2014 reliefs of which are as below:-
"A. That writ, direction or order in the nature of mandamus may kindly be issued commanding the Opp. Parties to grant continuity of past service since 23.10.84 till 03.05.11 as regular messenger and to allow all the consequential benefits including annual increments pay fixation and arrears.
B. That writ direction or order in nature of mandamus may kindly be issued commanding the Opp. Parties to grant benefit of the N.I.T. award in the matter of pay fixation and balance of 50 % of the arrears of regular salary of full time messenger from 01.07.87 till 12.11.93 as has been allowed to other similarly placed messengers.
C. That writ direction on order in nature of mandamus may kindly be issued commanding the O.P. No. 1 to pay balance of the arrears of salary of 25% of salary of regular messenger from 12.08.99 to 03.05.11 alongwith interest.
D. That any other writ or direction as deemed appropriate in the facts and circumstances of the Writ Petition may also be passed in favour of the petitioners against the Opposite Parties.
E. Cost of the Writ Petition may kindly be allowed in favour of the petitioners against the Opposite Parties."
Subsequent thereto, the petitioner filed Writ Petition No.9763 (SS) of 2020 in which the reliefs prayed for are as below:-
"A. That by issuing writ, direction or order in the nature of certiorari the impugned order dated 05.06.2020 (Annexure No.01) passed by the Opp. Party may kindly be quashed.
B. That by issuing writ direction or order in nature of mandamus the Opp. Party may be commanded to release the gratuity of the petitioner for the undisputed period of qualifying service of 17 years, 08 month & 04 days since 12.08.1999 to 31.07.2015 (as mentioned in the P.P.O.).
C. That the Opp. Party may be directed to pay interest at market rate on the gratuity amount from the date it became payable till the date of actual payment.
D. That any other writ or direction as deemed appropriate in the facts and circumstances of the Writ Petition may also be passed in favour of the petitioners against the Opposite Parties.
E. Cost of the Writ Petition may kindly be allowed in favour of the petitioners against the Opposite Parties."
3. For disposal of the writ petitions, the facts of Writ Petition No.3402 (SS) of 2014 are being taken into consideration.
4. The case set forth by the petitioner is that he had been appointed as Part Time Messenger in Saryu Gramin Bank. The petitioner was removed from service after charge sheet dated 09.11.1990 through order dated 12.11.1993. An appeal was filed aggrieved against the removal order which too was dismissed vide order dated 18.02.1994 communicated vide order dated 25.03.1994. Being aggrieved, the petitioner filed Writ Petition No.10094 (SS) of 1993 in re: Bal Govind Verma vs. Saryu Gramin Bank and others. This Court while passing the judgment and order dated 12.08.1999, a copy of which is Annexure-1 to the writ petition, set-aside the appellate order dated 25.03.1994 and directed the Board of the Bank to re-consider the appeal of the petitioner in light of the observations made in the said judgment. The Bank challenged the judgment passed by the writ Court by filing Special Appeal No.418 of 1999 in re: Lucknow Kshetriya Gramin Bank and others vs. Bal Govind Verma and the Division Bench of this Court has passed the following order dated 16.12.2008:-
"10. She, therefore, submitted that appropriate portion of back wages be granted. Mr. Chaturvedi, is opposing granting of back wages and submits that in the facts of the present case, the wages cannot be granted as a matter of course. However, the fact remains that the learned Single Judge has directed to consider for awarding lesser punishment other than removal. That order was passed on 12.8.1999. The time taken thereafter is only because the matter did not reach of all these nine years. The Bank is not responsible for this delay nor is the respondent. In our view, therefore, 50% of the back wages during the period 12.8.1999 till the date of reinstatement, would be appropriate.
As far as the period from the date of termination till the order of the learned Single Judge is concerned, we are not awarding any back wages for the reason that the order of removal was subsisting during that period and its correctness was to be examined. Ultimately, the High Court directed on 12.8.1999 for awarding lesser punishment other than removal. Therefore, we are not awarding back wages for the earlier period. As far as the subsequent period is concerned, in our view, the employee-respondent should be granted at least 50%% of the back wages.
12. Though we are not entertaining the appeal, we modify the order of the learned Single Judge in the above terms, namely, that the respondent will be entitled to reinstatement in service with 50% back wages from the period 12.8 1999 and the date of reinstatement. The Appellants will place the respondent in an appropriate post equivalent to the one on which he was engaged, when he was terminated."
5. Still being aggrieved, the Bank filed Special Leave to Appeal (Civil) No.10203 of 2009 in re: Lucknow Kshetriya Gramin Bank and another vs. Bal Govind Verma and initially the Apex Court had stayed the contempt proceedings.
6. Thereafter the Apex Court vide order dated 28.04.2011, a copy of which is Annexure-3 to the writ petition, after recording the statement of learned counsel appearing for the Bank that the petitioner is not entitled for full back wages, as awarded, but he can be reinstated, asked the petitioner to report to the officer concerned within a week for being taken on the rolls of the Bank. In pursuance thereof, the petitioner reported to the Bank for being taken back in service and the Bank vide order dated 04.05.2011, a copy of which has been filed as Annexure-5 to the writ petition, reinstated the petitioner on the post of Attendant (Parichar).
7. Thereafter, the Apex Court vide order dated 01.03.2013, a copy of which is Annexure-6 to the writ petition, dismissed the SLP as withdrawn on the information being given that the petitioner has been reinstated in service and regarding other compliance, it was left open to the petitioner to pursue appropriate proceedings for enforcement of the impugned order.
8. Learned counsel for the petitioner contends that subsequently the petitioner retired from service on attaining the age of superannuation on 31.07.2015. Prior to retirement, instant writ petition has been filed praying for the reliefs as have already been set-forth above.
9. At the very outset, learned counsel for the petitioner contends that she admits that the petitioner had been appointed as Part Time Messenger in the year 1984 and even at the time of removal from service he was a part time employee and it is only when he has been reinstated in service on 04.05.2011 that the petitioner has been appointed as a regular employee i.e. as an Attendant. The statement of learned counsel for the petitioner is recorded.
10. Learned counsel for the petitioner contends that as the petitioner has been reinstated in service through an order dated 04.05.2011 as such he is entitled for counting of his past services since 23.10.1984 till 03.05.2011 as regular Messenger with all consequential benefits including annual increments. A further prayer in the instant petition is for payment of arrears of salary of 25% of regular Messenger from 12.08.1999 to 03.05.2011 along with interest and for extension of benefit of NIT award in the matter of pay fixation and balance of 50% of the arrears of regular salary of full time Messenger from 01.07.1987 to 12.11.1993 as has been allowed to other similarly placed Messengers. Copy of the NIT award has been filed as Annexure-7 to the writ petition.
11. Learned counsel for the petitioner contends that as the petitioner was only reinstated in service in pursuance to the direction issued by this Court as affirmed by the Apex Court, as such, the petitioner would be entitled for continuity of past service since 23.10.1984 till 03.05.2011 as a regular messenger with all attendant benefits. It is also contended that as the NIT award dated 20.03.1993 has been promulgated, which pertains to regularization of part time messenger, consequently the petitioner would be entitled for the benefit of the said award. It is also contended that the order of the special appeal was for grant of 50 percent back wages but the petitioner has only been paid 25 percent of his salary of regular messenger and as such the petitioner would be entitled for the salary as directed by the Division Bench of this Court. Learned counsel for the petitioner also contends that the petitioner would be entitled for parity to one Sri Shiv Dutt Bhatt whose pay fixation has been done considering the NIT award.
12. Elaborating the NIT award, learned counsel for the petitioner contends that as per NIT award, in terms of Clause 16(1)(a), which deals with regularization, it has been provided that there is a problem of regularization of part time Messenger cum Sweeper in the absence of proper records and therefore it was required that all employees in sub-staff cadre who are in service of Regional Rural Banks (RRB) as on 22.02.1991 and who have completed 240 days of continuous service after that date may be treated to be regular employees of RRB w.e.f. 02.02.1991. Placing reliance on the aforesaid clause, learned counsel for the petitioner contends that various persons who were appointed along with the petitioner have been treated to be in regular service right since the date of initial appointment. A few of such orders have been filed as Annexures 10 and 11 to the writ petition.
13. Subsequent thereto, the petitioner represented to the respondents for certain of his grievances which representation has been disposed off vide order dated 05.06.2020 as challenged in Writ Petition No.9763 (SS) of 2020, by indicating that as the petitioner's earlier writ petition namely Writ Petition No.3402 (SS) of 2014 is pending as such at this stage his claim is not tenable in the eyes of law. The said order has also been challenged by filing subsequent Writ Petition No.9763 (SS) of 2020, the reliefs of which have already been set forth above.
14. Learned counsel for the petitioner contends that in the subsequent petition, the petitioner has prayed for quashing of the order dated 05.06.2020 as well as praying for a mandamus commanding the respondents to release the gratuity of the petitioner for undisputed period of qualifying service i.e. from 12.08.1999 to 31.07.2015, the date of 12.08.1999 has been indicated as the date of judgment passed by the writ Court.
15. In support of her arguments, learned counsel for the petitioner has placed reliance over the judgments of this Court passed in the cases of Ranchhor Tikam Dutt Singh Vs. U.P. Public Services Tribunal and ors. reported in 2004 (22) LCD 977, Sucha Singh Sodhi Vs. Baldev Raj Walia reported in (2018) 6 SCC 733 and Chairman, U.P Power Corporation Ltd. & others vs. Hansraj (dead) through legal heirs reported in 2020 (38) LCD 96. Learned counsel for the petitioner also contends that the petitioner would be entitled for continuity of past services as the order of removal though not specifically quashed would be deemed to be quashed considering the Division Bench judgment of this Court in the case of Ranchhor Tikam Dutt Singh (supra). The judgment of this Court in the case of Hansraj (supra) has also been relied upon to contend that once the respondents reinstated the petitioner in service as regular Attendant as such the entire period of service would be countable.
16. On the other hand, Sri Asit Chaturvedi, learned Senior Advocate has argued on the basis of averment contained in the counter affidavit that admittedly the petitioner was working as daily wage part time messenger from 20.06.1984 to 30.06.1987. Subsequent thereto, he was appointed as a part time regular messenger from 01.07.1987 to 11.11.1993. He had also been given a charge sheet on 09.11.1990 and thereafter removed from service vide order dated 12.11.1993. Being aggrieved, the petitioner filed an appeal against the said order and also filed a writ petition before this Court. During pendency of the writ petition itself, the appellate order dated 18.02.1994 was passed by which the appeal of the petitioner had been rejected. Upon an amendment application having been filed by the petitioner praying for quashing of the order passed in the appeal, the writ Court vide judgment and order dated 12.08.1999, without interfering with the removal order dated 12.11.1993, set aside the appellate order and remanded back the matter to the appellate authority to re-consider the appeal of the petitioner in the light of the observations made in the petition and the fact that the petitioner had attained the age of 44 years and his family members are dependent upon him.
17. Being aggrieved, the respondents filed the special appeal and the Division Bench of this Court was of the view that the order of removal was subsisting and even the writ Court vide judgment and order dated 12.08.1999 only directed for awarding of lesser punishment other than removal and thus Division Bench did not award any back wages for the earlier period. It is also contended that though the SLP filed by the respondents themselves before the Apex Court was withdrawn and in the fitness of things, the petitioner should have been reinstated on the post on which he had been working earlier i.e a part time regular messenger yet the respondents appointed the petitioner on the post of regular office Attendant. It is also contended that the Division Bench of this Court itself had provided that the petitioner would only be entitled for 50 percent back wages from 12.08.1999 till the date of reinstatement which considering that the petitioner was working as a part time regular messenger, accordingly an amount of Rs. 2,01,559/- has been paid to the petitioner considering her service as part time employee for the period from 12.08.1999 till reinstatement vide order dated 04.05.2011. Subsequent thereto, the petitioner has filed the writ petition in the year 2014 claiming the reliefs as have been set forth but considering the facts and circumstance of the case, the petitioner would not be entitled for the reliefs as have been prayed for by means of the instant writ petition. Sri Chaturvedi, learned Senior Advocate contends that the petitioner would not be entitled for any parity with Shiv Dutt Bhatt as the case of Shiv Dutt Bhatt was not one of removal from service and thereafter reinstatement rather Shiv Dutt Bhatt has continued working all along under the respondents.
18. As regards, the judgments cited by the learned counsel for the petitioner, it is contended that all the said judgments are distinguishable on their own facts and have no applicability in the facts of the instant case.
19. Sri Chaturvedi also argues that as in the earlier round of litigation the petitioner had not sought any relief with regard to NIT award as such considering the principles of Order 2 Rule 2 of the Civil Procedure Code the present petition praying for the relief of NIT award would not be maintainable.
20. Heard learned counsel for the parties and perused the records.
21. From perusal of the records, it comes out that the petitioner worked as a Daily Wage Part Time Messenger from 20.06.1984 to 30.06.1987. Thereafter he worked as Part Time Regular Messenger from 01.07.1987 to 11.11.1993 when he was removed from service vide order dated 12.11.1993. The appeal filed by the petitioner was also rejected vide order dated 18.02.1994 as communicated through letter dated 25.03.1994. Upon a challenge being raised by the petitioner to the removal order dated 12.11.1993 and the appellate order dated 18.02.1994 (by way of amendment in the writ petition), the writ Court vide judgment and order dated 12.08.1999 did not set aside the order of removal. However, the appellate order was set-aside and the Board was directed to reconsider the appeal of the petitioner in the light of the observations made in the judgment. A challenge was raised by the Bank to the said judgment by filing Special Appeal No.418 of 1999 before this Court. The Division Bench of this Court vide judgment and order dated 16.12.2008 modified the order of the writ Court and held the petitioner herein as entitled to reinstatement in service with 50% back wages from the period 12.08.1999 till the date of reinstatement. So far as the period of termination till the date of judgment of the writ Court was concerned, the Division Bench did not award any back wages for the reason that the order of removal was subsisting during that period and its correctness was to be examined.
22. Thus, the judgment of the Division Bench was explicit i.e. no back wages were awarded for the period from 1984 till 11.08.1999 and 50% back wages were awarded for the period from 12.08.1999 till the date of reinstatement.
23. The respondents filed Special Leave to Appeal (Civil) No.10203 of 2009 before the Apex Court in which initially, the contempt proceedings were stayed but subsequent thereto a statement was given by learned counsel appearing for the respondents on 28.04.2011 before the Apex Court in which the respondents stated that the petitioner herein is not entitled for full back wages but he can be reinstated and considering this, the Apex Court required the petitioner herein to report to the officer concerned of the Bank within a week for being taken on the rolls. In pursuance thereof the Bank issued letter dated 03.05.2011 requiring the petitioner to report to the Bank on the post of Attendant and in pursuance thereof the petitioner reported to the Bank and was reinstated on the post of Attendant (Parichar). Subsequent thereto, the SLP was dismissed as withdrawn vide order dated 01.03.2013.
24. Thereafter the petitioner filed Writ Petition No.3402 (SS) of 2014 claiming the reliefs as have been set forth above. Upon a representation having been preferred by him, the same was disposed of vide order dated 05.06.2020 which has been challenged by means of a subsequent petition namely Writ Petition No.9763 (SS) of 2020, the reliefs of which have already been quoted above.
25. Keeping in view the aforesaid facts, the Court will now have to consider the reliefs to which the petitioner may be entitled.
26. The first relief as has been prayed for by the petitioner in Writ Petition No.3402 (SS) of 2014 is for granting continuity of past service since 23.10.1984 to 03.05.2011 as regular Messenger. The relief is being divided in two parts by this Court i.e. the period of service from 23.10.1984 to 11.08.1999 and service from 12.08.1999 to 03.05.2011, as the date of 12.08.1999 is relevant considering the Division Bench judgment of the petitioner being eligible for reinstatement from 12.08.1999.
27. As regards the period of service from 23.10.1984 to 11.08.1999 is concerned, the statement of learned counsel for the petitioner is already recorded above wherein learned counsel for the petitioner has admitted that the petitioner was working as part time Messenger in the year 1984 and even at the time of removal from service, the petitioner was a part time Messenger. No service rules have been brought on record to indicate that part time service is to be counted as regular service and hence in absence of any such rules no mandamus can be issued for counting the period of service from 23.10.1984 to 11.08.1999 as qualifying service in this regard. However, this aspect of the matter shall be examined by the respondents in accordance with rules. As regards the argument of learned counsel for the petitioner that considering the law laid down by a Division Bench of this Court in the case of Ranchhor Tikam Dutt Singh (supra) even though the removal order was not quashed yet as observations to the said effect had been made by the writ Court the removal order would be deemed to be quashed, though attractive on the face of it yet merits out right rejection inasmuch as the Division Bench in the Special Appeal filed by the respondent-Bank has itself indicated in paragraph 11 that the order of removal was subsisting from the date of termination and its correctness was to be examined and the writ Court directed for lesser punishment other than removal, meaning thereby that the removal order itself was never quashed rather it was only the appellate order which had been quashed by the writ Court and affirmed by the Division Bench. Thus, the principles laid down in the case of Ranchhor Tikam Dutt Singh (supra) would not be applicable.
28. So far as the judgment of this Court in the case of Hansraj (supra) is concerned, the same was a case of reinstatement while in the present case learned counsel for the petitioner has herself admitted that till the reinstatement of the petitioner as regular Attendant, the petitioner had been working only as a part time Messenger or as a part time employee. Thus, the said judgment would have no applicability in the facts of the present case.
29. As regards the period from 12.08.1999 to 03.05.2011 is concerned, the Division Bench had specifically directed that the petitioner would be entitled for reinstatement in service with 50% back wages from 12.08.1999 till the date of reinstatement. Admittedly, the petitioner was reinstated in service as regular Attendant vide order dated 04.05.2011 and thus the question of counting of service for the period from 12.08.1999 till reinstatement in service i.e. 03.05.2011 would be covered by the Division Bench judgment itself as affirmed by the Supreme Court, meaning thereby that once the Division Bench held the petitioner as entitled to 50% back wages from the period 12.08.1999 till the date of reinstatement and the respondents themselves have reinstated the petitioner as a regular Attendant, in this view of the matter the petitioner would be entitled for counting of this period of service as a regular Attendant with all consequential benefits.
30. Now the Court proceeds to consider the NIT award.
31. Though an objection has been taken by Sri Chaturvedi, learned Senior Advocate, that as the petitioner had not claimed the benefit of NIT award in the earlier round of litigation, he would now be precluded from claiming the same considering the principles of Order 2 Rule 2 of the Civil Procedure Code, yet what the Court finds is that the NIT award was required to be extended to all part time employees on roll. Both the learned counsels have not argued as to whether the petitioner, once he had been served with the charge sheet prior to the NIT award coming into force on 22.02.1991, was entitled for being considered or not and thus it is when only now that the petitioner has been reinstated in service that the issue of NIT award has been raised by him, consequently the principles of Order 2 Rule 2 of the Civil Procedure Code would not be applicable in the present facts of the case.
A perusal of the NIT award would indicate that Para 16(1)(a), which pertains to regularization, provides that the Government of India has notified acceptance of NIT award on 22.02.1991, meaning thereby that when the petitioner was in service, having been removed on 12.11.1993, the NIT award had already come into force. The respondents were required to consider the case of regularization of part time Messenger cum Sweeper as it was provided that all those who have completed 240 days of continuous days of service after the date of 22.02.1991 may be treated as regular employees with effect from 22.02.1991. Though the petitioner was in service on 22.02.1991, he might have completed 240 days of service prior to his removal on 12.11.1993. However, neither in the earlier round of litigation nor prior to filing of writ petition in the year 2014 any claim has been raised by the petitioner pertaining to payment as per NIT award which also pertains to pay fixation of such employees. Though the petitioner has claimed parity with one Sri Shiv Dutt Bhatt but the case of Shiv Dutt Bhatt was not a case of removal from service, as in the instant case, and thus the petitioner is not entitled for any parity of pay fixation with that of Sri Bhatt. Keeping in view the peculiar facts of the case, it would be open for the respondents to consider the case of the petitioner regarding pay fixation in terms of NIT award provided the petitioner fulfills the qualifications and the terms and conditions provided in the award. The same being a factual dispute, no mandamus can be issued in this regard.
32. As regards the claim of the petitioner for payment of balance of arrears of salary of 25% of regular Messenger from 12.08.1999 to 03.05.2011, though learned counsel for the petitioner has herself admitted that the petitioner was only a part time employee yet considering the conduct of the respondents whereby they proceeded to reinstate the petitioner as regular Attendant on 04.05.2011 and the direction of the Division Bench dated 16.12.2008 of the petitioner being entitled to 50% back wages from the period 12.08.1999 till the date of reinstatement, of which an amount of Rs.2,01,559.15 has been paid to the petitioner as finds place in the order of the contempt petition dated 25.11.2013 i.e. the payment having been made of 50% of the back wages of a part time employee, a mandamus is issued commanding the respondents to pay the petitioner 50% of salary of the post of regular Attendant w.e.f. 12.08.199 keeping in view the specific direction of the Division Bench of this Court as affirmed with the withdrawal of SLP, after adjusting the amount of Rs.201559.15 already paid to the petitioner.
33. As regards the relief of Writ Petition No.9763 (SS) of 2020 pertaining to release of gratuity, as this Court has proceeded to issue the aforesaid directions, it is provided that in case any service of the petitioner is counted towards qualifying service, the consequences shall follow.
34. Let the order be complied with within a period of three months.
35. With the aforesaid directions, the writ petition is disposed off.