Jammu & Kashmir High Court
Rajo Begum Age 52 Years vs Punjab & Sind Bank Ltd Through Its ... on 12 March, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
SWP No. 1259/2015
Reserved on: 22.02.2024
Pronounced on: 12.03.2024
Rajo Begum age 52 years, W/O Late Abdul Rashid,
R/O Dak Banglow, W.No.2, Batote, District Ramban. .....Petitioner(s)
Through :- Mr. P N Goja, Sr. Advocate with
Mr. Abhinav Jamwal, Advocate
v/s
1. Punjab & Sind Bank Ltd through its Chairman
Head Office at 4th Floor, 21 Rajinder Place
New Delhi.
2. Zonal Manager, Punjab & Sind Bank Ltd.
Zonal Office Civil Lines Gurdaspur.
3. Senior Manager Punjab & Sind Bank Ltd.
H.O.P.F Department Siddhartha Enclave,
New Delhi.
4. Branch Manager, Punjab & Sind Bank Ltd.
Batote.
5. J P Singh alias Surinder Paul,
Manager, Punjab & Sind Bank Ltd.
C/O Zonal Manager Punjab & Sind Bank Ltd.
Zonal Office Civil Lines Gurdaspur
6. Executive Director, Punjab & Sind Bank Ltd.
4th Floor, 21 Rajinder Place, New Delhi. .....Respondent(s)
Through :- Mr. Sandeep Singh, Advocate
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner through the medium of this petition filed in terms of Article 226 of the Constitution of India, seeking quashing of the order passed in the month of September, 2011 whereby she was retired from service and to command the respondents to continue the petitioner in service till she reached the age of superannuation i.e September 2021 or in alternative direct the respondents to release the monthly pension of the petitioner 2 SWP No. 1259/2015 along with arrears from the date she came to be illegally superannuated along with interest.
2. The case of the petitioner is that she came to be appointed as Part Time Sweeper (Safaiwala) in Punjab & Singh Bank Limited, having its newly established Branch at Batote about 25 years ago, initially at a monthly wages of Rs.20/- and thereafter was put on consolidated salary; that subsequently vide Order No. ZO.JSP.SWEEPER.2 dated 12.09.2007, services of the petitioner came to be regularized and as per terms of the regularization order, the petitioner was called upon to produce fitness certificate issued by the competent Medical Officer and also proof of date of birth; that besides confirming the services of the petitioner, she was put in regular pay scale of Rs.4060/-105/2-4270-115/2, 4500-135/2-4770- 165/3-5265-195/4-6045-235/3-6750-270/3-7560, with proportionate annual increment plus dearness allowance. The permanent employee certificate came to be issued in her favour as well as the regular pay scale certificate; that the petitioner after being confirmed contributed to GP fund as well as the pension contribution under the provisions of the Punjab & Sind Bank (Employees) Pension Regulations 1995.
3. It has been further alleged that during the year 2010-11, respondent No.5 Incharge Branch Manager, Punjab & Sind Bank Batote, knowing that the petitioner was uneducated lady, retired her from service without the petitioner having reached the age of superannuation, which was to come in the month of September, 2021, as per her date of birth; that the petitioner challenges the order of retirement passed against her to be illegal and against the rules and being premature.
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4. The grievance projected by the petitioner is that in case this Court holds her premature retirement to be legal one, in that event the petitioner claims payment of monthly pension to her along with other retiral benefits which stands denied to her; that in terms of Punjab & Sind Bank (Employees) Pension Regulations, 1995, the petitioner was to retire after attaining the age of 58 years i.e., she had to retire in the month of September 2021, as admitted by the respondents as per the documents; that respondent No.5 in order to accommodate the Sweeper (Safaiwala) of his choice i.e, prematurely retired the petitioner, as such, the petitioner has right to remain in service till she reaches the age of superannuation in the month of September 2021 and is also entitled to receive pension as well as the benefits arising out of the service; that right to receive wages and right to receive pension is property within the meaning of Article 19(g) of the Constitution, which right has been denied to the petitioner and finally it was prayed that the impugned order passed in the month of September, 2011, with regard to retirement of the petitioner be quashed.
5. Pursuant to notice, the respondent Nos. 1, 2 and 6 have filed their response, wherein they have stated that the present petition is liable to be dismissed on account of delay and latches as the petitioner was retired from the bank services in the month of September, 2011 and the present petition has been filed after the gap of four years challenging her superannuation; that the delay has not been explained by the petitioner while filing the present petition and the present petition involves disputed question of facts as the petitioner has given different dates of birth of different time and the request for the change of the date of birth cannot be entertained at the fag end of the retirement which is settled position of law; that the petitioner on 4 SWP No. 1259/2015 27.09.2011 filed an affidavit, wherein she has admitted that her date of birth recorded in the records as 1951 and requested for change of her date of birth from 1951 to 01.09.1963, which cannot be entertained; that as per the record maintained by the office of the respondent-Bank, the date of birth recorded is 07.09.1951 and as per the said date of birth record, the petitioner was retired from service on 30.09.2011; that the petitioner was firstly appointed as Sweeper on 18.09.2007 and it is denied that the services of the petitioner has been regularized from part time sweeper to permanent sweeper as alleged by the petitioner. It is stated that the claim of the petitioner for salary and other employment benefits for the period she was not in active service of the Bank, cannot be granted.
6. Mr. P. N. Goja, learned senior counsel appearing for the petitioner, vehemently, argued that the petitioner came to be appointed as Part Time Sweeper (Safaiwala) in Punjab & Sind Bank Limited having its newly established Branch at Batote about 25 years ago, initially on monthly wages of Rs.20/-, thereafter she was put on consolidated salary and that subsequently vide Order No. ZO: JSP: SWEEPER 2 dated 12.09.2007, services of the petitioner came to be regularized. He further argued that the petitioner after being confirmed contributed to GP fund as well as to the pension contribution under the provisions of the Punjab & Sind Bank (Employees) Pension Regulations 1995; that the respondent No.5 retired the petitioner without her reaching the age of superannuation as she was to retire in the month of September 2021 as per her admitted date of birth and taken on record of the respondent Bank and he finally prayed that the petition be allowed. In support of his arguments, learned senior counsel for 5 SWP No. 1259/2015 the petitioner has relied upon the judgments of the Hon‟ble Apex Court in following cases:
(i) Union of India & Ors vs Ram Bahadur Yadav, 2021 Legal Eagle (SC) 823: and
(ii) Pradeep vs Manganese Ore (India) Limited & Ors, 2021 Legal Eagle (SC) 972.
7. Mr. Sandeep Singh learned counsel for the respondents, ex adverso, argued that the petitioner came to be regularized from Part Time Sweeper to a permanent sweeper vide order dated 12.09.2007 and after rendering four years of regular service she was retired from the bank services in the month of September, 2011 as per record of the bank. He argued that the present petition has been filed after the gap of four years challenging her superannuation, without explaining the delay by the petitioner while filing the present petition. He further argued that as per Chapter-IV of the Punjab & Sind Bank (Employees) Pension Regulations, 1995, the qualifying service, subject to the other conditions contained in these Regulations, is a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension. So in view of the aforesaid Pension Regulations, the petitioner is not entitled to any pensionry benefits. So far as counting of service rendered on permanent part-time basis, for the purpose of calculating the amount of pension in respect of a part time employee who was/is initially recruited on a lower scale wage and later fitted on higher scale wages including full scale wages, the length of qualifying service shall be determined in accordance with Appendix-IV and it was finally prayed that the present petition be dismissed.
8. Heard learned counsel for both the sides, perused and considered. 6 SWP No. 1259/2015
9. Two questions, as enumerated in the pleadings and urged during rival submissions, emerge and fall for consideration of this Court. Firstly that whether the petitioner was retired by the respondents in the year 2011, when she had still a service of 10 years. Secondly that the petitioner was not held entitled to receive pension for want of qualifying service, as she was claimed to have just four years of service to her credit, as against the requisite service of 10 years.
10. Adverting to the first question as to whether petitioner was prematurely retired without reaching superannuation, it is worth to note that respondent- Bank, despite direction, failed to produce the record. Learned counsel for the respondent-Bank, on instructions, informed the Court that service record of the petitioner is not available, having been destroyed as per Rules. The petitioner‟s counsel, on the other hand, submits that the petitioner has placed on record the "Provident Fund Statement" as Annexure „D‟ with her petition indicating that the date of birth of the petitioner was 01.09.1963, as such, she would have to retire at the age of 58 years on last date of August 2021. The petitioner, thus as per the record of the respondent-Bank, had a service of 10 years, when she was retired in the year 2011.
11. In absence of production of the relevant record pertaining to the service of the petitioner by the respondent-Bank, it will be pertinent to refer to some of the communications the petitioner has placed on record. The petitioner has produced of her Part-Time engagement as „Sweeper‟ on one third scale wages vide reference No. ZO: JSP: SWEEPER 2 dated 12.09.2007 issued by the Zonal Office of Punjab & Sind Bank, Gurdaspur. This engagement of the petitioner was made holding her entitled to a salary at the rate of one 7 SWP No. 1259/2015 third Scale Wages in pay scale as applicable to Sub-Staff i.e Rs.4060/- 105/2-4270-115/2, 4500-135/2-4770-165/3-5265-195/4-6045-235/3-6750- 270/3-7560, per month with proportionate annual increment plus dearness allowance as are admissible to Sub-Staff under Bipartite Settlement/Award from time to time. She was initially placed on probation period of six months subject to verification of her certificates including qualification, category (SC/ST/OBC), medical certificate and satisfactory proof of age.
12. As per certificate dated 11.01.2008 issued by the Punjab & Sind Bank Batote Branch, the petitioner was shown as a regular employee of the respondent-Bank. The petitioner was continued in service upto September 2011 when she was retired and in absence of any record from the respondent-Bank, it can be inferred, that the petitioner would have submitted the satisfactory proof of age as was required in her Part-Time engagement so as to continue in the service. It will not be out of place of refer to a "Provident Fund Statement" issued by the respondent-Bank of the petitioner-Rajo Begum for the period of October 2009 to March 2010 indicating the date of birth of the petitioner as 01.09.1963, date of joining as 01.10.2007 and date of confirmation as 01.04.2008 showing her contributing to pension fund as well. This document issued by the Branch Manager of Punjab & Sind Bank Batote has not been disputed by the respondent-Bank, therefore, it can safely be held that the date of birth as provided by the petitioner at the time of her engagement or confirmation was 01.09.1963.
13. The contention of learned counsel for the respondent Bank that the bank had destroyed the service record as per Rules does not seems to be correct, as such an important record cannot be disposed of by destruction within 8 SWP No. 1259/2015 one year, when the petitioner had disputed the same by making a representation to the Executive Director, Punjab & Sind Bank Limited, Delhi on 08.03.2012. The respondent-Bank, otherwise, failed to show as to under what Norms or Rules the service record of the petitioner may have been destroyed. The respondents along with objections/reply have placed on record a copy of the affidavit claimed to have been sworn-in, by the petitioner that her date of birth had been wrongly recorded as 01.09.1963 instead of 1951.
14. The Assistant General Manager (P) from the Head Office of Punjab & Sind Bank vide No. WORK/CLK/CHANGE/2011/3164 dated September 20, 2011 took up the matter with respondent No.2-Zonal Manager, Punjab & Sind Bank, Zonal Office Gurdaspur advising him to go through the personal record file of the petitioner and inform them the date of birth submitted by her at the time of appointment in the Bank and also send them the original date of birth certificate and other documents indicating her date of birth. It was further advised to look into the matter personally and verify the date of birth certificate submitted by the petitioner and also get her medically checked, if need be. The respondent-Bank has failed to show as to what was done at their level to verify from their record with regard to date of birth of the petitioner or of her medical examination for that purpose as was advised by the Head Office of the respondent-Bank.
15. From the aforesaid facts, it is discernable that the respondent-Bank had not maintained or if maintained had withheld the important service record of the petitioner so as to determine as to how she was retired in the year 2011 when her date of birth recorded with the respondent-Bank as indicated in "Provident Fund Statement" issued by the Branch Manager concerned of 9 SWP No. 1259/2015 the bank as 01.09.1963. The respondent-Bank should have decided the issue with regard to date of birth after affording an opportunity of being heard to the petitioner before passing an order of her retirement in the year 2011.
16. So far as the first question with regard to retiring the petitioner in the year 2011 is concerned, it is held that the respondent-Bank had not decided the matter in the light of any record available with them or after affording an opportunity of being heard to the petitioner. In absence of any record having been produced by the respondent-Bank, the "Provident Fund Statement" issued by the Branch Manager concerned indicating the date of birth of the petitioner as 01.09.1963 is taken as correct, as such, she would have reached the age of superannuation on 30.09.2023 as per the service rules of the Bank Staff. Thus, her retirement by the respondents vide impugned order in year 2011 is not only illegal but arbitrary and cannot be sustained. The respondent-Bank had to continue the petitioner on the post to which she had been appointed till she reaches the age of superannuation having regard to her date of birth as 01.09.1963, with all consequential benefits.
17. Adverting to the second question as to whether the petitioner is entitled to the pension as per the Punjab & Sind Bank (Employees) Pension Regulations, 1995. The Punjab & Sind Bank (Employees) Pension Regulations, 1995 amended upto date were made by the Board of Directors of the Bank, after consultation with the Reserve Bank of India (RBI) and previous sanction of the Central Government, which regulate the pension of its employees. "Employee" has been defined by these Regulations in Regulation No.2(n) which reads as follows:
10 SWP No. 1259/2015
"Employee" means any person employed in the service of the Bank, whether as a workman on full time work on permanent basis or on part-time work on permanent basis on scale wages or as an officer and who opts and is governed by these regulations, but does not include a person employed either on contract basis or daily wage basis or on consolidated wages;"
18. Regulation 27(2) provides for counting of service rendered on permanent Part-Time basis. Clause (2) of Regulation 27 provides as under:
For the purpose of calculating the amount of pension in respect of a part-time employee who was/is initially recruited on a lower scale wage and later fitted on higher scale wages including full scale wages, the length of qualifying service shall be determined in accordance with Appendix IV.
Appendix IV is as follows:
Actual service on scale Length of corresponding qualifying wages rendered on service for each year of service permanent part-time rendered on permanent part-time basic in one week basis for calculating the amount of pension Six hours or more but One third of a year upto 13 hours:
More than 13 hours but One half of a year
upto 19 hours;
More than 19 hours but Three fourth of a year
upto 29 hours;
More than 29 hours; One year
19. The order whereby the petitioner had been engaged as Part-Time on 12.09.2007 though it had been recorded that the petitioner was working as Part-Time Sweeper on consolidated wages, however, the column with regard to the period had been kept as blank as against the contention of the petitioner that she has been engaged when the branch of the respondent-
Bank was opened at Batote and claimed that she had worked there for 25 years before being engaged as Part-Time Sweeper in the year 2007 and confirmed in the year 2008. Even if the petitioner was retired in the year 2011, her pension could have been worked in view of the Regulations 27 of the Punjab & Sind Bank (Employees) Pension Regulations, 1995 and her 11 SWP No. 1259/2015 Part-Time engagement could have been credited for the computation and calculation of the pension to which she would have been entitled. Though the respondent-Bank had not produced any record, as such, it cannot be said that for how long the petitioner had been working as Part-Time but if her contention of working as such for 25 years is taken into account, she would have completed 10 years of service by adding the actual service on Scale Wages rendered on permanent Part-Time basic in one week to the regular service of more than four years w.e.f 2007 to 2011 would have completed 10 years of service, which is qualifying service for payment of pension. However, since this Court while adverting to the first question that the petitioner was entitled to be continued in service till she reached the age of superannuation having regard to her date of birth as 01.09.1963, this calculation pales into insignificance and the petitioner with her deemed retirement on reaching superannuation as per the service rules of the Bank, is entitled to the pension for having qualified the minimum qualifying service of 10 years, even from the date of her regularization in the year October, 2007 to September, 2023.
20. Hon‟ble Apex Court in case titled Union of India & Ors vs Ram Bahadur Yadav, reported as 2021 Legal Eagle (SC) 823, has observed that "wrongful termination of service, reinstatement with continuity of service and back-wages is normal rule and adjudicating authority to take into consideration the length of service of the employee, nature of misconduct, financial condition of employer and similar other factors". In another case, the law laid down in Deepali Gundu Surwase case, (2013) 10 SCC 324 by the Apex Court and reiterated in case titled Pradeep vs Manganese Ore (India) Limited & Ors, reported as 2021 Legal Eagle 12 SWP No. 1259/2015 (SC) 972, it has been held that "It is, undoubtedly, true when the question arises as to whether the back wages is to be given and as to what is to be the extent of back wages, these are matters which will depend on the facts of the case as noted in Deepali Gundu Surwase (supra). In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal/malafide termination. The effort of the Court must be then, to restore the status quo in the manner which is appropriate in the facts of each case. The nature of the charges, the exact reason for the termination as evaluated and, of course, the question as to whether the employee was gainfully employed would be matters which will enter into the consideration by the Court."
21. For the foregoing reasons and the observations made hereinabove, it is held that the respondents had dispensed the service of the petitioner in the month of September 2011 in an illegal and arbitrary manner, as such, the order impugned whereby she was retired is not sustainable and is liable to be quashed. She shall also be entitled to the back wages in view of the law laid down by the Apex Court in the judgments in Union of India & Ors vs Ram Bahadur Yadav, 2021 Legal Eagle (SC) 823; and Pradeep vs Manganese Ore (India) Limited & Ors, 2021 Legal Eagle (SC) 972.
22. Having regard to the foregoing reasons and observations made hereinabove, impugned order, whereby the petitioner was retired in the year 2011, is thus quashed, with the direction to retire her, on her reaching the age of superannuation on 30.09.2023, process her case for pension and pay her the arrears of back wages, within a period of eight weeks, from the 13 SWP No. 1259/2015 date a copy of this judgment is supplied to the respondents. Due to sufferings of a poor employee, it is expected that this judgment shall be complied with, within the stipulated period.
23. The petition is, accordingly, disposed of, as allowed.
(M A Chowdhary) Judge JAMMU 12.03.2024 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes