Arun Kanti Baruah vs The Punjab National Bank And 3 Ors
2021 Latest Caselaw 1058 Gua

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GAHC010172842016




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4825/2016

            ARUN KANTI BARUAH
            S/O LT. R.K. BARUAH, R/O H/NO.2, BYE LANE NO.4 SOUTH, LACHIT
            NAGAR, GHY-7, KAMRUP METRO, ASSAM



            VERSUS

            THE PUNJAB NATIONAL BANK and 3 ORS
            REP. BY THE REGIONAL MANAGER/STATE MANAGER, HAVING ITS
            OFFICE AT G.S. ROAD, BHANGAGARH, GHY-5

            2:THE CIRCLE OFFICE
             NORTH EAST CIRCLE
             REP. BY THE CIRCLE HEAD NILGIRI MANSION
             G.S. ROAD
             BHANGAGARH
             GHY-5

            3:THE REGIONAL MANAGER
             REGIONAL OFFICE
             PNB
             NER
             G.S. ROAD
             BHANGAGHAR
             GHY-5

            4:THE BRANCH MANAGER
             MAHABIR MARKET BRANCH
             PNB
             CHARU MARKET
             S.R.C.B. ROAD
             FANCY BAZAR
             GHY-

Advocate for the Petitioner   : MR.D TALUKDAR
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Advocate for the Respondent : MR. A GANGULY




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                            ORDER

Date : 19.03.2021

Heard Mr. R. Sarma, learned counsel for the petitioner and Mr. A. Ganguly, learned counsel for the respondents.

2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs, viz., (i) quashing of order dated 10.11.1994, by which the respondents had adjusted his provident fund dues, (ii) for refund of the said adjusted amount, (iii) for quashing of order dated 05.05.1995, by which the respondents had adjusted the gratuity amount payable to the petitioner, (iv) for refund of the said adjusted amount, (v) for payment of salary and other financial benefits from 06.09.1993 till his voluntary retirement on 13.06.1994 along with interest, (vi) for payment of salary and other financial benefits from 01.09.1993 to 05.09.1993 with interest, (vii) for payment of all the outstanding pension along with interest, (viii) for payment of accumulated earned leave in his credit from 1978 to 1994 along with interest, (ix) for payment of all outstanding salary, medical benefits along with interest and other financial benefits for service rendered in Punjab National Bank.

3. In short, the case projected by the petitioner in this writ petition is that on 22.09.1978, he had initially joined service as Clerk- cum-Godown Keeper in the erstwhile New Bank of India, Mahabir Market Branch, where he was allotted Provident Fund Account No. 6786. It is claimed that on amalgamation and/or merger of the erstwhile New Bank of India with Punjab National Bank, by virtue of an agreement of bipartite settlement, the salary, wages, leave benefits, retirement benefits, medical benefits, etc. were all protected. It is also projected that on 06.09.1993, while serving at his Branch, the petitioner was handed over a Page No.# 3/10

blank form containing signature of the then Regional Manager of Punjab National Bank, by which the petitioner was required to unconditionally accept memorandum of termination of service in erstwhile Bank and for joining service in Punjab National Bank. The petitioner took some time to submit his joining report, but he fell ill and desired to avail sick leave and privilege leave available in his account for which he claims to have telephonically informed his Branch Manager. Later on, when the petitioner went to join the respondent no.1 bank, he was informed that there was a delay of 15 days in joining and, as such, he would be allowed to join only on receiving confirmation from the Regional Manager. However, the respondent no.3 had served a letter dated 23.03.1994 to the petitioner to report for duty within 30 days along with explanation for not joining duty w.e.f. 07.09.1993, failing which he would be deemed to have voluntarily retired from service after 30 days. It is stated that the petitioner had sent his reply dated 22.04.1994 and 26.04.1994, expressing his intention to join, but vide letter dated 13.06.1994, the petitioner was informed that he was voluntary retired from service with effect from 25.05.1994. The petitioner claims that by a letter dated 20.11.1995, he had exercised his option to join pension fund within time allowable under the applicable Bank Employees Pension Regulations, 1995. It is submitted that pursuant to his RTI application dated 18.06.2014, the petitioner was informed vide reply dated 15.07.2014 that (i) his provident fund amount of Rs.81,076/- was released and fully adjusted against settlement of dues against term loans, festival advance, suspense entry, overdraft, and recovery against fraud amount, and (ii) that his gratuity amount of Rs.42,023/- was also adjusted against fraud amount of Rs.9,71,693/-.

4. The learned counsel for the petitioner has submitted that the actions taken by the respondents in adjusting his receivables towards provident fund, gratuity, etc. were illegally adjusted against some purported dues without conducting any departmental proceeding. Moreover, it is submitted that pension, leave encashment, etc. to which the petitioner was entitled to, were not provided. It is submitted that the petitioner was to superannuate on 31.12.2016, but he was prematurely retired from service on 25.05.1994. It is also submitted that the petitioner had availed a loan against purchase of motorcycle, which was stolen, but the insurance amount was also collected by the respondents. It is submitted that in the meanwhile, the respondent authorities had lodged an FIR on 05.01.1996 before Page No.# 4/10

the Central Bureau of Investigation, accusing the petitioner of embezzlement of Rs.9,59,000/- from three customer accounts in the year 1992. The case was charge-sheeted and trial of Spl. Case No. 28(C)/1997 had commenced, which resulted in conviction of the petitioner vide judgment and order dated 27.10.2003 and sentenced, however, this Court had reversed the conviction by judgment and order dated 29.01.2014 in Crl. Appeal No. 353/2003 and the petitioner was acquitted of all charges. The CBI had preferred an SLP before the Supreme Court of India, and SLP (Crl.) No. 2369/2015 was dismissed by order dated 20.03.2015. In the meanwhile, the Money Suit No. 147/1998, filed by the respondents for realizing a sum of Rs.15,68,615/- from the petitioner was also dismissed by order dated 23.08.2004 passed by the learned Civil Judge (Senior Division) No.2, Guwahati for non-production of documents. The learned counsel has earnestly submitted that owing to pendency of the herein before litigations, the petitioner could not pursue his remedy for non- payment of his salary and other lawful dues and accordingly, it is submitted that the petitioner has been able to explain the inadvertent delay in approaching this Court, which was unintentional. It is submitted that having endured criminal proceeding and criminal appeal and money suit, the petitioner physically and mentally shattered, which was one of the reasons for the inadvertent delay in approaching this Court. It is also submitted that from the RTI reply dated 15.07.2014, the petitioner came to know about illegal and arbitrary adjustment of his dues against illegal recovery and/or adjustment against so called fraud dues, as such, from the date of knowledge, this present writ petition was filed by the petitioner within reasonable time thereafter. It is also submitted that as the petitioner was absolved from the criminal case and the money suit filed against petitioner was dismissed, the purported recovery and/or adjustment of money by the respondents from salary, provident fund and not disbursement of salary, leave encashment, pension, etc. was ex facie illegal and highly arbitrary.

5. Per contra, the learned counsel for the respondents has referred to the affidavit- in- opposition filed by the respondents and it is submitted that the claim was hopelessly barred by limitation and the order dated 13.06.1994 to voluntarily retire the petitioner was belatedly challenged after about 22 years. Moreover, referring to Annexure-5 of the affidavit- in- opposition filed by the respondents, it is submitted that on 15.02.2018, the Assistant General Manager of the respondent no.1 had informed the police about the period Page No.# 5/10

to maintain registers. Accordingly, it is submitted that as per the rules in force, the respondents were required to preserve certain records for a particular period of time as prescribed and thereafter, the documents are routinely destroyed. It is submitted that although some facts and amount of money was quoted in the RTI reply, but there is no document to substantiate it, and in this connection, it is also submitted that by passage of time, it has become impossible for the respondents to track former employees of that relevant period for getting some firsthand information about what had transpired at that relevant time. Accordingly, it is submitted that the writ petition deserves to be dismissed.

6. Submissions made by the learned counsel for both sides has received due consideration by the Court. The materials available on record, i.e., in writ petition, affidavit- in- opposition and affidavit- in- reply have been perused.

7. The claim of the petitioner for pension is taken up first. The admitted case of the petitioner is that he was voluntary retired from service with effect from 25.05.1994, as such, when the petitioner is out of service, it is inconceivable that by submitting a letter dated 20.11.1995, he could have lawfully exercised his option to join pension fund within time allowable under the applicable Bank Employees Pension Regulations, 1995. The petitioner has failed to show that he had contributed any money to the pension fund or that the employer had also made contributions to the pension fund. Moreover, having never joined service under respondent no.1, there is no justifiable reason for the petitioner to claim pension from the respondent no.1. The petitioner has not been able to show from record that he was entitled to pension for service rendered in erstwhile New Bank of India. Therefore, the claim for money against pension is an outright bogus and false claim, which deserves to be and is accordingly rejected.

8. The next point which is required to be examined is whether the claim made in this writ petition is barred by limitation. In this regard, the admitted case of the petitioner is that he was appointed in service by the erstwhile New Bank of India. It is also specifically admitted by the petition in para-5 of his writ petition that on 06.09.1993, while he was on Page No.# 6/10

duty, he was informed by some officials of respondent no.1 about amalgamation of erstwhile New Bank of India with respondent no.1 and that he was required to sign unconditional acceptance of termination of service under erstwhile bank and also for fresh joining in respondent no.1 bank. It is projected in para-6 of the writ petition that the petitioner had become ill and informed one Mr. Bhutani, the then Branch Manager that he would submit his leave application shortly with medical certificates. It is further admitted in para-7 of the writ petition that when he met the said Mr. Bhutani after 15 days, the petitioner was informed that there was a delay of 15 days and that he would be informed to join service with respondent no.1 bank on receiving approval from respondent no.3. The date when the petitioner met the said person is conspicuously absent in the pleadings. There is no way of ascertaining the correctness of the statement made by the petitioner about his conversation with the said named person because he is not arrayed as a party to this writ petition. In any case, the erstwhile New Bank of India had admittedly amalgamated with respondent no.1 bank prior to the date when the petitioner had spoken with Mr. Bhutani, and there is no statement in the writ petition that in which capacity the said Mr. Bhutani was working in respondent no.1 Bank. Nonetheless, the respondent no.3 had served a letter dated 23.03.1994 to the petitioner to report for duty within 30 days along with explanation for not joining duty w.e.f. 07.09.1993, failing which he would be deemed to have voluntarily retired from service after 30 days. It is not the pleaded case of the petitioner that he had reported before the respondent no.1 and 3, or before any other competent authority. Rather, the pleaded case of the petitioner is that by his reply dated 22.04.1994 and 26.04.1994, he had expressed his intention to join, and that vide letter dated 13.06.1994, the petitioner was informed that he was voluntary retired from service with effect from 25.05.1994. Thus, for all intents and purpose the cause of action to claim financial benefits for service rendered would arise on 25.05.2004, the date from when his name was struck off from Muster Roll of Branch Office, Mahabir Market, Fancy Bazar, Guwahati. The cause of action for claiming financial benefits in respect of service rendered on 13.06.1994, the date of letter by respondent no.3, informing the petitioner about termination of his service w.e.f. 25.05.1994.

9. The matter can be viewed by another angle. It is the admitted case of the petitioner that from the date when the erstwhile New Bank of India got merged with the Page No.# 7/10

respondent no.1, the petitioner had not actually exercised his option to accept the offer to join service under respondent no.1. Rather, as already indicated herein before, the pleaded case of the petitioner is that by his reply dated 22.04.1994 and 26.04.1994, he had only expressed his intention to join, therefore, he had not actually joined service under respondent no.1. Notwithstanding that the respondent no.1 had kept him on muster roll till he was voluntarily retired w.e.f. 25.05.1994, but in the absence of acceptance of service by the petitioner no master and servant relation can be said to have been created between the respondent no.1 and the petitioner. Thus, as per projection made by the petitioner, by virtue of an agreement of bipartite settlement, his salary, wages, leave benefits, retirement benefits, medical benefits, etc. were all protected. In this writ petition, neither the date of the said bipartite agreement has been pleaded nor has the said agreement been annexed. The petitioner has not been able to show whether his service rendered to erstwhile New Bank of India was covered by the purported bipartite settlement agreement or that there was any bipartite settlement agreement with respondent no.1 to cover for wages and other service benefits.

10. In respect of suit for wages, the period of limitation prescribed in Article 7 of the Schedule of the Limitation Act, 1963 is three years from the date when the wages accrue. In respect of suit for money payable for interest upon money due, the period of limitation prescribed in Article 25 of the Schedule of the Limitation Act, 1963 is three years from the date when the interest becomes due.

11. It is also seen that by RTI reply dated 15.07.2014, the petitioner was informed that the documents sought for by the petitioner in respect of his leave record/ position, savings book account ledger, etc. were not available as they were 18-19 years old and was not available as per Bank's Record Maintenance Policy. The petitioner had himself worked in erstwhile New Bank of India and, as such, he is deemed to be aware of the period of time for which certain classes of books and ledgers are required to be preserved. As Annexure-5 to their affidavit-in-opposition, the respondents have annexed a copy of FIR dated 15.02.2018, which contains, inter-alia, that account open and closed register no. PNB134 and leave register no. PNB240 was maintained from 1994 to 1998, and statements Page No.# 8/10

register no. PNB477 was maintained from 1994 to 1999. Therefore, if a monetary claim is entertained after 20-22 years, the respondents would be at a disadvantageous position because it would have no access to original records to prove their stand. The Court has to take into consideration that it is the petitioner, who has made a statement in the writ petition that Money Suit No. 147/1998, filed by the respondents for realizing a sum of Rs.15,68,615/- from the petitioner was dismissed by order dated 23.08.2004 passed by the learned Civil Judge (Senior Division) No.2, Guwahati for non- production of documents. Thus, from the said statement, the Court must presume that the respondents do not have in their custody the documents relevant to prove their case because the documents were destroyed as per policy in force in the establishment of the respondent no.1.

12. To overcome the plea of claim being time-barred, the learned counsel for the petitioner had meticulously submitted that after enduring criminal cases at trial Court, High Court and Supreme Court, the petitioner could not agitate his grievance for getting his salary, leave encashment, provident fund, etc. In this regard, the petitioner has not been able to show that he was suffering any legal disability to make a claim within the limitation period as prescribed under the Limitation Act, 1963 and therefore, in the absence of any legal disability, there was no reason for the petitioner to file a suit and/or to approach any other competent Court or forum for claiming relief within a prescribed period of limitation. The Court is of the considered opinion that when a monetary claim through a civil suit is hopelessly time- barred, the writ Court should be slow to entertain monetary claim after 20-22 years.

13. The Court is conscious of the well settled principles that no period of limitation is prescribed for seeking relief through a writ Court. In this regard, although there cannot be a straight jacket formula for a writ Court to entertain a claim beyond the period of limitation prescribed for filing suits, and each case has to be considered on its own merit, but it is a rule of prudence and self restraint that would be applicable on case to case basis. In the present case in hand, it is the admitted case of the petitioner that the respondent no.3 had served him a letter dated 23.03.1994 to report for duty within 30 days along with explanation for not joining duty w.e.f. 07.09.1993, failing which he would be deemed to have voluntarily retired from service after 30 days. As indicated herein before, there is no Page No.# 9/10

document to show that the petitioner had reported before the respondent no. 3 or before any other competent authority to join service with respondent no.1. The pleaded case of the petitioner is that by reply dated 22.04.1994 and 26.04.1994, the petitioner had merely expressed his intention to join. However, vide letter dated 13.06.1994, the petitioner was informed that he was voluntary retired from service with effect from 25.05.1994. Thus, any dues that might have been due from the respondents, would have crystallized on 25.05.1994 and 13.06.1994, as such, this writ petition filed on 11.08.2016 is found to be hopelessly barred by limitation. It may be mentioned that the writ Court, bring the Court of equity, will definitely refuse to grant relief, even if the petition is entitled to the same, on the ground of delay, as delay defeats equity.

14. In this regard, the Court is reminded of the decision of the three Judge Bench of Supreme Court of India, in the case of U.P. Power Corporation Ltd. Vs. Ram Gopal, (2020) 0 Supreme(SC) 93: 2020 STPL 3363 SC , wherein the following observations made in the case of SS Balu Vs. State of Kerala, (2009) 2 SCC 479, was relied upon:

"17. It is also well-settled principle of law that "delay defeats equity". ... It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment."

15. In the case of State of Jammu and Kashmir Vs. R.K. Zalpuri & Ors., (2015) 15 SCC 602, the Supreme Court of India had observed as follows:-

"26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court.

27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the Page No.# 10/10

chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias" - 'thanks to God'.

28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present."

16. Resultantly, the Court is constrained to hold that the present writ petition is barred by the principle of laches and/or delay and, as such, this writ petition having found to be not maintainable, is accordingly, dismissed. However, under the circumstances, the parties shall bear their own cost.

JUDGE

Comparing Assistant