Bombay High Court
Bharti Neeraj Chaourasiya vs Indian Overseas Bank Thr Assistant ... on 3 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-AS:460-DB
3-WP-14419-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14419 OF 2024
Bharti Neeraj Chaourasiya ...Petitioner
Versus
Indian Overseas Bank Thr
Assistant General Manager And Ors ...Respondents
...
Adv. Hamza Lakdawala, Mohammed Najmi, Racheeta Chawla,
Maria Najmi i/b Mohammed Najmi for the Petitioner.
Adv. Priyanka K. a/w Rishi Bekal i/b B. K. Ahsok for the
Respondents.
...
CORAM : BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATE : 3rd JANUARY, 2025
ORAL JUDGMENT (PER BHARATI DANGRE, J) :-
1. On 18th December, 2024 the following order was
passed:-
"1. After various rounds of hearings in this matter on
25th November, 2024, 4th December, 2024 and 16th December,
2024, the learned Advocate representing the Petitioner submits, on
instructions from the Petitioner who is present in the Court, that
the Petitioner is giving up her promotion and prays for reversion on
the earlier post held at Mumbai, only with the intention and
purpose of living with her child in Mumbai, who is almost 95%
visually impaired and is unable to lead his day to day life on his own,
though he may appear to be around 10 years of age. The Petitioner
mother desires to sacrifice her promotion for the sake of the child.
2. The learned Advocate representing the Bank submits
that the Petitioner may tender an email representation in a day or
two, along with documents as may be desired to be cited. The
request would be considered and the Petitioner would be brought
back to Mumbai from 1ª January, 2025 by recording that the
promotion is given up.
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3. The Petitioner is agreeable in the light of the above. On
the joint request of the parties, this Petition is kept pending and
would be listed on 3rd January, 2025 for disposal."
Today, the Petition is listed before us for disposal and
by consent of the counsel appearing for the respective parties, we
issue Rule. Rule is made returnable forthwith. By consent of the
parties, taken up for final hearing.
2. What startled us, is the approach adopted by the
Respondent employer, who was earlier represented by Mr. Shah
and on hearing the grievance of the Petitioner, conceded before
the Court that she is ready to give up the promotion and sought
for her reversion provided, she is permitted to work in Mumbai, so
as to enable her to effectively cater to her 95% visually impaired
child aged about 10 years.
The order clearly reflected the sacrifices made by a
mother for the sake of her child.
Despite, a statement made before us that if a Petitioner
makes a representation to that effect, the request could be
considered and she would be brought back to Mumbai w.e.f 1st
January, 2025, by recording that she is ready to give up her
promotion, today, there is change of heart at the management
level and this is reflected with the change in the counsel.
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Mr. Rishi Bekal who represent the Bank today, very
candidly submit that the bank had all the intention to consider the
request of the Petitioner, but it do not have any policy, which will
enable him to do so.
The Petitioner finding herself in such a difficult
scenario, made a representation to the Respondent requesting for
cancellation of her promotion and bringing her back to Mumbai
which they have rejected on 24th September 2024. We also
informed that pursuant to our order dated 18 th December 2024,
on 31st December 2024, the Petitioner has been communicated to
the Respondent-Bank that once she had accepted the promotion,
the process has become irrevocable as per the existing guidelines.
This Statement coming from the newly appointed
counsel on behalf of the Bank, annihilate the very spirit of it being
an ideal employer and particularly, when what the employee is
seeking only her retention at Mumbai, on account of the perilous
situation, in which she find herself along with his son.
For the sake of the challenging task of dealing with her
differently abled child, she has offered to forego her promotion as
Assistant Manager and in her act, we can well appreciate the
concern of a mother for her child. However, the counsel for the
Bank insisted that she appeared for examination on multiple
occasions and upon having cleared the examination for
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promotion, now she cannot refuse the promotion. He also
highlight that on being promoted she has being placed in Chennai,
a metro city, where her child can be well catered to.
3. We really find difficult to appreciate the stand of the
bank, as we are of the firm opinion that it is the mother, who can
take a better decision for her own child and definitely she will not
be rely upon the decision of a stranger and specifically those in the
helm of affairs of the bank, who feel that Chennai would be a
better place for her son.
As a mother she understand the difficulties posed by
her 10 year old child, and is conscious of the arduous task in
shifting him to new environment and probably her apprehension
is that he may be putting him in a onerous scenario, if he is
uprooted from the present place and shifted to a new place in new
surroundings.
In any case, we do not find any fault with the conscious
decision taken by the mother, as obviously she is expected to act
in better interest and welfare of her own child.
4. What surprises us is the stand of the Respondent bank,
that there is no prevailing policy and therefore, it cannot accept
the request of the Petitioner permitting her to continue in
Mumbai, despite the fact that she is ready to forego her
promotional post, which she has in fact being appearing through
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by the competitive examination conducted by the department and
having succeeded in that, she is now dragging her feet for taking
of the promotional post in the interest of her child. We feel that for
consideration of a situation like this lack of a Policy may not be an
impediment but lack of sympathetic approach, on part of an
employer, definitely is.
We made it clear to the learned counsel, that we can
see the change in the situation, since what was perceived by the
bank is, by change of the counsel, the Court would also change its
prospective/view, but we are surely not moved by the argument
advanced by the newly appointed counsel, as we find that the bank
is noway going to be impacted, if the Petitioner who has rendered
13 years of service with an unbleached record to her credit in
Mumbai if she is brought back to the post of Clerk held by her in
past and on having made up her mind to forego the promotional
post.
We expected from the bank to act as an ideal employer,
who would have considered the request of the Petitioner in the
peculiar circumstances and as indicated by us in our order dated
18th December, 2024, brought her back to Mumbai w. e. f. 1 st
January, 2025, but today, we find that on the pretext that there is
no power in the bank to do so, no decision has been taken by the
bank and the Petitioner is not brought back.
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We are also informed that the Petitioner has already
joined at Chennai, but is facing difficulties in catering to her child,
which has prompted her to make a request to forego the
promotion and join back on her original post.
We are not told about any administrative difficulty in
permitting to do so, as the bank would find some other employee
to fill up the said promotional post of the Assistant Manager in
Chennai, but a child may not find a substitute for mother.
5. This is the precise reason while we intend to step in
and come to the rescue of the Petitioner, who we have been
informed to have taken up the promotional post pursuant to the
order dated 12th April, 2024, but, do not intend to continue on the
said post, as she desire to go back.
We are conscious the of difficulty faced by an employer
in dealing with an employee, who had already availed the
promotion and joined the post, to be reverted back to the post of
Clerk, but, when the Petitioner herself has conceded by submitting
that she is ready to accept this, we see no difficulty.
With the clear understanding that the Petitioner shall
not stake her claim on the promotional post at present, as she has
voluntarily given it up and it is only when she desire and is ready
for taking up the post of Assistant Manager, she may appear for
the departmental examination which would entitle her for
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promotion.
This we are making as an exception, and we see no
hesitancy in holding that an employee, who is the focal point of
any administration, deserves empathy, specifically, in light of facts
which are placed before us, being even the Petitioner herself is
suffering from an ailment, which has been projected before us
through various medical certificates reflecting a small area in the
left half of pituitary gland, with relatively delayed enhancement
and which has been opined to represent a 'micro adenoma'
advising biochemical correlation and follow up.
However, if she deemed herself to be fit enough to
apply for a promotional post in future, she may avail the
opportunity.
6. The learned counsel Mr. Shah representing the Bank
on the earlier date has sought a discharge, but we refused to
discharge him, since we find fair statement coming from him on
instructions received from the Bank at the relevant time, but
today the scenario is different and after recording to the aforesaid
fact, we deem it appropriate to discharge him.
We deem it appropriate to clarify that for the request
made by the Petitioner and to which we have acceded purely on
humanitarian consideration, the Petitioner shall not be put to any
adverse action in her service career.
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Hence, we make the Rule absolute by directing as under :-
a) We quash and set aside the communication dated
24th September, 2024 and the communication
dated 31st December, 2024 refusing the
Petitioner's reversal to the post of Clerk from the
promoted post of Assistant Manager at Chennai.
b) After canceling the promotion order issued in
favour of the Petitioner on 12th April, 2024, we
direct that the Petitioner shall be permitted to
join w.e.f. 1st January, 2025 as a Clerk in
Kandiwali (East) Branch of Mumbai.
c) The Petitioner shall not be deprived of any
monitory benefit which she has availed, when she
took up the promotional post including any
TA/DA.
d) Petitioner shall be continued to work on her
erstwhile post of Clerk in the same branch from
where she was promoted and thereafter posted,
as above.
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7. Considering that despite our order dated 18 th
December, 2024 the Respondent Bank who was expected to
consider the request of the Petitioner sympathetically, it chose to
reject the representation of the Petitioner on the ground that
there is no power to reverse her promotion, according to us, the
entire approach lacked human sensitivity and in any case we are
duty bound to come to the rescue of the Petitioner, considering
the genuine cause projected before us, and which in any case was
not disputed by the Respondent, we deem it appropriate to impose
a cost of Rs. 25,000/- upon the Respondent to be paid to the
National Association for the Blind, which cater to the differently
abled persons, and the details of which are as follows:
Bank Name : Punjab National Bank
Branch Address : Worli Seaface, Mumbai
400030.
Bank Account No. : 3740000100008551
Account Type : Saving A/c
IFSC Code : PUNB0374000
The cost shall be deposited within period of four weeks
from today.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
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Date: 09/01/2025 10:07:32
