WP/7557/2008 & ANR
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7557 OF 2008
WITH
CIVIL APPLICATION NO. 5676 OF 2017
1. Suresh Bhimrao Jadhav
Age 32 years, Occ. Unemployed,
R/o C/o Pathan House, Galli No.5,
Opp. Nitin Maniyar Hospital,
Sanjay Nagar, Mukundwadi,
Aurangabad.
2. Smt. Kasturbai wd/o Bhimrao
Jadhav, Age 55 years, Occupation
Household, R/o As above. ..Petitioners
Versus
1. The Union of India
through its Secretary,
Finance Department,
New Delhi
2. The Branch Manager,
Union Bank of India
Br. Rohilagadh, Tq. Ambad,
District Jalna.
3. The Senior Manager,
Union Bank of India,
Human Resources and
Management Department,
Terminal Benefits Division,
DRF Section, Central office,
239, 8th Floor,
Vidhan Bhawan Marg,
Nariman Point,
Mumbai 400021
4. The Senior Registrar (H.R.M.)
Union Bank of India,
Human Resources and
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WP/7557/2008 & ANR
2
Management Department,
Regional Office, Nasik, S.No.730,
First Floor, BYK College Compound
College Road, Nasik. 400005.
5. The Deputy General Manager,
Union Bank of India, Human
Resources Management Department,
Man Power, Planning and
Recruitment Division, 8th Floor,
Union Bank Bhavan, Nariman Point,
Mumbai 400021. ..Respondents
...
Advocate for Petitioners : Shri Garud V.B.
ASG for Respondent 1 : Shri S.B.Deshpande
Advocate for Respondents 2 to 5 : Shri Natu S.V.
...
CORAM : RAVINDRA V. GHUGE & SUNIL K. KOTWAL, JJ.
Dated: November 14, 2017 ...
ORAL JUDGMENT : (PER RAVINDRA V. GHUGE, J.):-
1. Since we have heard the learned Advocates for the respective sides finally on the Writ Petition, the Civil Application No.5676 of 2008 praying for listing the petition for final hearing does not survive and stands disposed off.
2. The petitioners are the L.Rs. of the deceased Shri D.S.Jadhav, who was working as a Daftari with the respondent / Union Bank of India. Grievance is that since he has passed away on 18.2.2003, the petitioners are entitled for the Death Relief Fund ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 3 Scheme ("DRFS") that was modified w.e.f. 1.1.2003 and as such would have been entitled to Rs.2,00,000/- owing to the demise of the said employee.
3. We have considered the strenuous submissions of Shri Garud, learned Advocate for the petitioners, Shri Natu, learned Advocate on behalf of respondent No.2 / Union Bank of India and the learned ASG of India on behalf of the Union of India.
4. There is no dispute that the DRFS was in vogue prior to the modified scheme having been introduced on 1.1.2002. The deceased employee was charged with remaining unauthorizedly absent, continuously, along with the charge of accepting a bribe or illegal gratification from a customer. He was awarded the punishment of dismissal from service without notice effective from 30.8.2001. He preferred a departmental appeal, challenging the proportionality of the punishment. By the order dated 11.7.2002, the punishment of dismissal from service was reduced to punishment of reduction of the basic pay by two stages with cumulative effect. Record reveals that the deceased was called upon to report for duties by letter dated 15.7.2002 and the letter dated 24.7.2002. He was posted as a Peon with the Jalna Branch ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 4 and was directed to report to the Senior Manager of the Jalna Branch.
5. The grievance of the petitioners is that though the deceased attempted to report for duties, pursuant to the allotment of work at the Jalna Branch, the respondent / Bank deliberately restrained him from joining duties and kept him at bay. He was not allowed to join duties and subsequently, he has passed away on 18.2.2002. It is, therefore, contended that it should be presumed that the deceased was on duty.
6. Learned counsel for the Bank submits that despite directions to the deceased to report for duties, for reasons best known to him, he has not joined duties. Consequentially, he did not report for work till he passed away on 18.2.2002.
7. In the above backdrop, we have no hesitation to conclude that the dismissal of the deceased was withdrawn by the Bank and the said punishment was replaced by the punishment of reduction of his basic pay by two stages, due to which there would be no break in service. Since he was served with the dismissal order, he naturally was kept away from work and as the dismissal was ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 5 replaced with reduction of basic pay by two stages, thereby granting him reinstatement, it would tantamount to the deceased having been reinstated from the date of his order of dismissal, considering the Doctrine of Relation Back. The reviewed order of punishment dated 11.7.2002 would relate back to the date of dismissal which is 30.8.2001.
8. The petitioners are unaware, as to whether the deceased employee was paid his salary by reduction of his pay by two stages for this period. We, therefore, are not dealing with this aspect of actual payment since no prayer has been putforth by the petitioners and instead, we permit the petitioners to make a representation to the respondent No.2 / Bank.
9. In so far as the modified Scheme is concerned, it is necessary to conclude as to whether the deceased was deliberately kept away from work even after issuance of two orders of reinstatement. The deceased had written a letter dated 25.9.2002 to the Bank admitting that he has received the order of reinstatement. He has, however, stated that his wife was seriously ill and his elder son was suffering from epilepsy and both of them are frequently required to make rounds to the hospital for ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 6 treatment. He, therefore, prayed for a loan so as to sustain the medical expenses and to deposit certain portions towards the over draft and provident fund along with gratuity. If the Bank had restrained the deceased from reporting for duties after promptly issuing the order of reinstatement dated 15.7.2002 after reviewing the punishment on 11.7.2002, the deceased would have surely mentioned in his representation dated 25.9.2002 that though he has reported for duties, the management is restraining him from joining and is precluding him from performing his duties. In the absence of any such grievance, we are unable to conclude that the Bank had deliberately prevented the deceased from reporting for duties.
10. There is no dispute that the deceased was contributing to the DRFS prior to the modification, till he was dismissed from service on 30.8.2001. For the said contribution / subscription, it is admitted that the Bank has paid the petitioners the amount of DRF as per the old Scheme, when he had contributed regularly.
11. By the modified Scheme, the assured amount of DRF was Rs.2,00,000/- w.e.f. 1.1.2003, subject to the contribution for a period of six months. Those members of the earlier DRFS were ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 7 automatically treated to be the members of the modified DRFS. The condition, however, was uninterrupted payment of subscription and any interruption for a period of six months or more would result in the cessation of the membership of such an employee from the DRFS. Naturally, the deceased ceased to be member of the DRFS after 30.8.2001, when he was dismissed.
12. After he was reinstated by the order dated 11.7.2002, notwithstanding that he has not reported for duties, he would have been deemed to be the member of the modified Scheme, provided, he would have paid the contribution atleast from the date of his reinstatement, if not for the intervening period from 30.8.2001 till 11.7.2002. The deceased has not deposited the contribution from the date of his reinstatement till he passed away on 8.2.2003, thereby, leading to the cessation of his membership of the earlier Scheme. Consequentially, his membership could not be carried forward under the modified Scheme.
13. In the light of the above, we do not find any merit in this petition. The same is, therefore, dismissed. Rule is discharged.
14. We make it clear that we have not expressed an opinion ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:50:33 ::: WP/7557/2008 & ANR 8 about whether the petitioners would be entitled to the actual reduced salary since the learned counsel for the respondent / Bank submits that that period was treated as loss of pay and allowances as a punishment along with reduction of pay by two stages with cumulative effect. As such, if a representation is made by the petitioners, respondent No.2 / Bank will consider the same on its own merits, expeditiously.
( SUNIL K. KOTWAL, J. ) ( RAVINDRA V. GHUGE, J. ) ...
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