Bombay High Court
Suresh Bhimrao Jadhav And Another vs The Union Of India And Others on 14 November, 2017
Bench: R.V. Ghuge
WP/7557/2008 & ANR
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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
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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
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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
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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
WP/7557/2008 & ANR
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
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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
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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
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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. )
...
akl/d
