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Madhya Pradesh High Court

Jai Prakash Singh vs M.P. Rajya Sahkari Bank Maryadit Bhopal on 16 January, 2017

                             WP-19012-2015
        (JAI PRAKASH SINGH Vs M.P. RAJYA SAHKARI BANK MARYADIT BHOPAL)


16-01-2017
   HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT
                    JABALPUR

                  Writ Petition No.19012/2015
                          Jai Prakash Singh

                                 Vs.

        M.P. Rajya Sahkari Bank Maryadit, Bhopal & another

Present: Justice Sujoy Paul



Shri S.D. Mishra, learned counsel for the petitioner.

Shri S.M. Guru, learned counsel for the respondent No.1.

ORDER

( 16/01/2017) The challenge in this petition, filed under Article 226 of the Constitution, is made to the order dated 05.10.2015 (Annexure-P/12), whereby the representation of the petitioner is rejected by the respondents.

2. During the course of argument, learned counsel for the parties fairly admitted that by order dated 20.09.2008 (Annexure-P/2), the period between termination to reinstatement of 43 employees were treated as “break in service”. It is admitted that similarly situated persons, namely, Shri Nanuram Yadav and 18 others filed Writ Petition No.5741/2014 (Annexure-P/8). This Court disposed of the said petition on 27.06.2014. The respondents were directed to consider and decide the representations preferred by the petitioners therein. In turn, vide order dated 22.10.2014 (Annexure-P/11), the said period of “break in service” was regularized and all pay and allowances were given to the petitioners therein. The petitioner's son Shri R.K. Singh's name is also mentioned in the said order dated 20.09.2008 (Annexure-P/2). It is informed that the petitioner's son died on 16.06.2013 in the tragedy of Uttarkhand. The petitioner filed W.P. No.11897/2014 seeking extension of benefit of the order passed in Vineet Kumar Dubey (W.P. No.2818/2008) decided on 31.07.2009. The said representation was rejected by the impugned order by holding that the benefit was granted to the persons who were petitioners in the earlier round of litigation. The petitioner’s son, during his employment/life time, did not prefer any such representation.

3. Shri Guru, learned counsel for the employer, fairly admitted that petitioner's son is otherwise similarly situated qua Nanuram Yadav and others (supra), but the only difference is that he did not challenge the order dated 20.09.2008 with quite promptitude. He was a “fence sitter” and hence in view of the judgment passed in U.P. Jal Nigam and another Vs. Jaswant Singh and another (2006) 11 SCC 464, the petitioner is not entitled for the similar benefit.

4. No other point is pressed by the learned counsel for the parties.

5. I have heard learned counsel for the parties at length and perused the record.

6. In view of the admitted facts, it is clear that the order dated 20.09.2008 is the singular reason for depriving the benefit of continuance of service for petitioner's son and for Shri Nanuram Yadav and others (supra). Putting it differently, by the same order, the respondents have deprived the benefit of continuance of service and treated 43 employees aforesaid period as “break in service”. The question is : whether in the peculiar facts of this case, petitioner's son can be given a different treatment on the ground of not approaching the Court during his lifetime ?

7. In the case of Inder Pal Yadav and others Vs. Union of India and others, (1985) 2 SCC 640, the Apex Court opined that if an order is passed by the Court, it should be implemented in favour of all similarly situated employees. In the present case, petitioner's son is sailing on the same boat in which Shri Nanuram Yadav and others (supra) are sailing. There is no justification in putting petitioner's son in a comparatively disadvantageous position merely because he did not approach the Court during his life time. In Inder Pal Yadav (supra), the Apex Court opined as under:

“...............Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.”

8. The matter may be viewed from another angle. Whenever the employer decides that particular period of service will be treated as “break in service”, the said period cannot be counted for the purpose of qualifying service and for the purpose of grant of retiral benefit etc. Thus, if said benefit is excluded in relation to petitioner’s son, it will have a recurring effect in the matter of grant of pension/retiral dues. Apart from this, the respondents have taken the decision in case of Nanuram Yadav (supra) only on 22.10.2014 (Annexure-P/11). Promptly thereafter, the petitioner has filed W.P. No.11897/2014, which was decided on 21.07.2015. Thus, even otherwise, there is no inordinate delay on the part of the petitioner in seeking similar benefit. For these cumulative reasons, I am unable to hold that this petition can be thrown overboard on the ground of delay. In the facts and circumstances of the case, the judgment of U.P. Jal Nigam (supra) cannot be pressed into service. The said judgment is based on different factual scenario and the delay was much more than the delay involved in the present case.

9. Accordingly, the impugned order dated 05.10.2015 is set aside. The respondents are directed to treat the period of “break in service” of petitioner's son in the same manner in which it was treated in the case of Nanuram Yadav & others (supra). The entire exercise be completed within 90 days. The financial benefit arising thereto be paid to the petitioner within aforesaid time.

10. Petition is allowed. No cost.

(SUJOY PAUL) JUDGE Biswal