Jharkhand High Court
Nirmal Dharoi vs The State Of Jharkhand Through ... on 18 June, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5772 of 2018
1. Nirmal Dharoi
2. Lado Singh
3. Shantanu Sahu
4. Sharwan Kumar Mahto
5. Manoj Kumar Choudhary
6. Shashi Bara
7. Shailesh Kumar Tiwari
8. Sumant Prakas Ekka
9. Maheswar Singh
10. Jagra Oraon
11. Ram Kishore Kumar
12. Ashok Kumar Rai
13. Binod Kumar Mahto
14. Maria Kanti
15. Pratima Lakra ... PETITIONERS
Vs.
1. The State of Jharkhand through Secretary, Agriculture, Animal Husbandry -
cum - Cooperative Department, Government of Jharkhand, Ranchi.
2. Registrar - cum - Administrator, Cooperative Society (Cooperative
Department), Engineering Hostel No. 2, Near Golchakkar, Dhurwa, Ranchi
3. The Chief Executive Officer, Jharkhand State Cooperative Bank Ltd., Ranchi.
4. Senior Manager, Jharkhand State Cooperative Bank Ltd., Jashpur Road, Gumla.
... ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through : Video Conferencing)
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Arun Kumar, Advocate.
For the Bank Mr. Mrinal Kanti Roy, Advocate
For the State Mr. Deepak Kumar Dubey, AC to SC
11/18.06.2021 In view of outbreak of COVID-19 pandemic, case was taken up through
Video Conferencing and heard at length on various dates. Concerned lawyers
have no objection with regard to the proceeding which was held through Video
Conferencing and there is no complaint in respect to audio and video clarity and
quality and after hearing at length, the matter was kept for 'Orders' on 06.04.2021
and is being disposed of finally.
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PRAYER
2. In the instant writ application prayer has been made for issuance of
appropriate writ(s), order(s) or direction(s) in the nature of Certiorari for
quashing of ex-parte enquiry report dated 06.08.2018 to the extent of Clause-4,
whereby and whereunder the respondent no. 2 (Registrar, Cooperative Society)
has conducted enquiry against these petitioners without giving any show-cause or
notice to them and issued direction to the Administrator, Jharkhand Cooperative
Bank Ltd. for taking action against the petitioners as service of the petitioner has
been regularized against the Rules.
Petitioners have further prayed for quashing of office order dated
31.10.2018, issued by respondent no. 3 (Chief Executive Officer, Jharkhand State
Cooperative Bank), whereby and whereunder the respondent no. 3 has set aside/
annulled his own order of regularization dated 25.10.2017 and 30.12.2017 and
service of these petitioners have been de-regularised and the respondent no. 4
(Senior Manager, Jharkhand State Cooperative Bank Ltd.) has been directed to
recover differences of paid salary amount from these petitioners.
Petitioners have further prayed for issuance of direction upon the
respondents to pay arrears of salary and other admissible benefits together with
interest @10% per annum from 27.06.2009 when respondents issued a direction
for regularization of their services.
FACTUAL MATRIX
3. Facts
of the case lies in a narrow compass. Petitioner nos. 1 to 8 and 13
to 15 had been appointed to the post of Assistant on various dates whereas
petitioner nos. 9 to 12 had been appointed to the post of peon in Gumla-
Simdega Central Cooperative Bank Ltd., Gumla on vacant and sanctioned posts
and they had been discharging their duties with full satisfaction of the
respondents. On 28.03.2008, a meeting was held between the Union of the
Cooperative Banks Employees, The Registrar, Cooperative Societies, Jharkhand
and the Managing Director of Central Cooperative Banks of Jharkhand and as
per settlement arrived between the parties, the Managing Director of the said
Banks directed to forward a detailed report to the respondent no. 3 about the
daily wages employees of the Banks working against the vacant and sanctioned
posts so that they may be regularized. Thereafter, vide Memo No. 566, dated
09.04.2008, the respondent no. 2 issued a direction to the Managing Directors
of the Banks to send a list of daily wages employees who were sought to be
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regularized. Pursuant thereto, the Managing Director, Gumla Simdega Central
Cooperative Bank Ltd., Gumla, sent a letter vide Memo No. 208, dated
20.06.2008, informing the respondent no. 2 regarding the daily wages
employees working in the Bank. Thereafter, the matter was duly considered by
the respondent no. 2 in light of the order and directions passed by the Hon'ble
Supreme Court and the Rules and Regulations of Jharkhand Cooperative
Societies Act and passed an order as contained in Memo No. 1066, dated
27.06.2009 giving permission to the Administrator (Respondent No. 2) to
regularize services of the petitioners and further directed that the petitioners will
receive their salary after confirmation of their services by the Administrator
from the date of their respective appointment.
4. After passing of the order dated 27.06.2009, a formal order was to be
passed by the Administrator (Respondent No. 2) for regularization of services of
the petitioners but in the meantime, another order dated 30.11.2009, as
contained in Memo No. 2008 was passed whereby he recalled his earlier order
dated 27.06.2009 and entire process of regularization was stopped. The said
order dated 30.11.2009 was also passed with respect to three other Cooperative
Banks also i.e. Hazaribagh, Dhanbad and Dumka Central Cooperative Bank
Ltd. However, the said order dated 30.11.2009 was quashed and set aside vide
order dated 25.06.2010, passed by this Court in W.P.(S) No. 2721 of 2005. The
said order was challenged by the Bank in L.P.A. No. 533 of 2010, which was
disposed of vide order dated 04.07.2011 with a direction to pass appropriate
order within a period of one month in light of order passed by the Single Judge.
The Special Leave to Appeal (Civil) No. 29715 of 2011, filed by the Bank also
stood dismissed vide order dated 14.11.2011, passed by Hon'ble Supreme
Court. In view of various orders and directions, the daily wages employees of
Hazaribagh Central Cooperative Bank, Hazaribagh were regularized in service
vide order dated 24.01.2012, passed by the Managing Director of the Bank.
Petitioners also made representation before the respondent no. 2 and legal
opinion was given in their favour by the concerned Public Prosecutor. The
respondent no. 2 also called for a detailed report with respect to the daily wages
employees vide Memo No. 1066 (11), dated 07.07.2012, which was duly
replied by the Managing Director (Respondent No. 4) vide report as contained
in letter no. 229, dated 20.07.2012. Thereafter, the respondent no. 3 passed an
order dated 31.07.2012, holding that case of the petitioners is not similar to the
case of the employees of Hazaribagh Central Cooperative Bank as the proposal
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of regularization of services of the petitioners has not been approved by the
Managing Board/ Administrator (Respondent No. 3), which was communicated
by the letter dated 07.08.2012.
5. Being aggrieved, petitioners preferred writ petition vide W.P.(S) No.
4833 of 2012 for quashing order dated 30.11.2009 by which order of
regularization dated 27.06.2009 was recalled and order dated 31.07.2012,
whereby claim for regularization of petitioners was denied on the ground that
case of the petitioners is not similar to the daily wages employees of
Cooperative Bank, Hazaribagh and as such order passed in W.P.(S) No. 2721 of
2005 is not applicable in case of the petitioners. However, upon assurances
given by the respondents, the writ petition was withdrawn vide order dated
09.11.2017. Thereafter, the respondent no. 2 (Registrar - cum - Administrator,
Jharkhand State Cooperative Bank Ltd., Ranchi) vide order dated 25.10.2017,
regularized services of the petitioners including other persons with effect from
27.06.2009. Pursuant to the said order dated 25.10.2017, the respondent no. 3
(Chief Executive Officer, Jharkhand State Cooperative Bank Ltd., Ranchi) vide
his order dated 30.12.2017, had also regularized services of the petitioners. In
view of aforesaid office orders issued by respondent no. 2, the service of these
petitioners have been regularized and they have been appointed as permanent
employees with effect from 27.06.2009 and were getting salary of permanent
employees also.
6. Thereafter, pursuant to letter dated 05.07.2018, issued by respondent
no. 1 (Secretary, Agriculture, Animal Husbandry - cum - Cooperative
Department, Government of Jharkhand), the respondent no. 2 constituted an
Enquiry Committee and he himself enquired the matter regarding regularization
of services of these petitioners including other matters and on 06.08.2018,
issued a letter to the Administrator, Jharkhand Cooperative Bank Ltd. for
taking action against the delinquent officers and employees for alleged
regularization of employees against the provisions. It was also alleged that the
fact of the case of W.P.(S) No. 2721 of 2005 and W.P.(S) No. 4833 of 2005 are
not similar and services of these petitioner could not have been regularized.
Thereafter, vide order dated 31.10.2018, the respondent no. 3 set aside his own
order of regularization dated 25.10.2017 and 30.12.2017 and service of the
petitioners have been de-regularised and respondent no. 4 has been directed to
recover differences of paid salary amount from petitioners.
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ARGUMENTS ON BEHALF OF THE PETITIONERS
7. Mr. Anil Kumar Sinha, learned Sr. Advocate assisted by Mr. Arun
Kumar, submits that it is a very peculiar case wherein similarly situated daily
wages employees of the other Central Cooperative Bank Ltd. have been
regularized in view of order dated 27.06.2009, whereas petitioners herein have
been discriminated. Learned Sr. Counsel further argues that fact of the present
case and W.P.(S) No. 2721 of 2005, are exactly similar but petitioners have
unnecessarily been harassed and compelled to knock door of this Court.
Petitioners are still working in the Bank and discharging their duties with full
sincerity and honesty without any complaint from any corner. Petitioners should
not have been discriminated from other employees of different Central
Cooperative Banks within the State of Jharkhand after passing of order of the
Court by which services of daily wages employees had been regularized.
8. Learned Sr. Counsel further submits that after filing of counter affidavit
in W.P.(S) No. 4833 of 2012, the Managing Director, Gumla-Simdega Central
Cooperative Bank, Gumla sought legal opinion from counsel for the
respondents and vide letter dated 29.09.2014, it was opined that after order of
the High Court, the letter No. 1066, dated 27.06.2009 becomes effective and the
employees are deemed to have been regularized. Merely because employees of
Gumla-Simdega Central Cooperative Bank were not party before the High
Court, is not sufficient ground to deny benefits of said order to the employees of
this Bank. The benefits of one order cannot be denied to the person only on the
ground that he was not petitioner before the Court. There was no suppression of
fact of counter affidavit filed in W.P.(S) No. 4833 of 2012 and the respondent
nos. 2 and 3 himself did not to consider legal opinion of counsel of the Bank
and set aside their own order, which is illegal and arbitrary. The respondents
cannot de-regularise services of the petitioners.
9. Learned Sr. Counsel further argues that after Orders passed by Hon'ble
Supreme Court and considering Rules and Regulations of the Jharkhand
Cooperative Societies, the order dated 27.06.2009 was passed giving
permission to the Administrator to regularize service of the petitioners. In the
same and similar manner, the order dated 26.06.2009 was passed for
regularization of services of daily wages employees of Dumka Central
Cooperative Bank Ltd., Dumka. Thereafter, pursuant to order issued vide Memo
No. 132, dated 20.07.2009, passed by Managing Director, the services of daily
wages employees of Dumka Central Cooperative Bank Ltd., Dumka was
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regularized and have never been de-regularised whereas, case of the petitioners
have been discriminated and they have been de-regularised.
10. Learned Sr. Counsel submits that in the facts and circumstances of the
case, petitioners are entitled for regularization of their services on respective
posts from the date of their appointment as per order of regularization dated
25.10.2017 and 30.12.2017, issued by respondent nos. 2 and 3 respectively. the
respondent no. 2 is not empowered to revoke his own order passed on earlier
occasion without giving any notice or show-cause or giving any opportunity of
hearing. Learned Sr. Counsel submits that in view thereof, the impugned office
order dated 31.10.2018, issued by the respondent no. 3 is not justified and as
such fit to be quashed.
11. The impugned order dated 31.10.2018 has been assailed by the
petitioners on the following grounds:
a. No reasons have been assigned for recalling orders of regularization.
b. Services of the petitioners were regularized in pursuant to order passed by this
Court in W.P.(S) No. 2721 of 2005;
c. The authorities who had passed order of regularization has subsequently,
reviewed its own order, which is not permissible in the eyes of law.
12. To buttress his arguments, learned Sr. Counsel has relied upon the
following Judgments:
i. Satya Prakash and others Vs. State of Bihar and others reported in (2010)
4 SCC 179;
ii. Kedar Singh Vs. The State of Jharkhand and others reported in (2009) 3
JLJR 350 (HC);
ARGUMENTS ON BEHALF OF THE RESPONDENTS- BANK
13. Mr. Mrinal Kanti Roy, learned Counsel strenuously urges that petitioners
in W.P.(S) No. 2721 of 2005 had a different case and as such, petitioners herein
cannot claim equity or parity at par with those petitioners. The services of the
petitioners in W.P.(S) No. 2721 of 2004 had been initiated by orders of the
Secretary, Department of Cooperative, wherein direction was issued for
regularization of services of those employees who had been working for last 15
years. The petitioners in W.P.(S) No. 2721 of 2005 had been working for 15
years as on 25.02.2003 whereas, petitioners of this writ petitioner had been
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working since 1988. Initial appointment of the petitioners were also illegal.
They had been appointed illegally without any advertisement or written test or
interview and as such there was no requirement of issuance of any notice to the
petitioners. So far legal opinion is concerned, the same is internal
communication between the officers of the Bank and its Advocate and the same
is not binding upon the Bank. Petitioners cannot take advantage of the same.
While comparing their case with petitioners in W.P.(S) No.2721 of 2005,
petitioners have not considered the order passed in W.P.(S) No. 5954 of 2012
which has further been affirmed in L.P.A. No. 348 of 2014. Learned counsel
further submits that giving go-bye to the process and without resorting to legal
advice, some employees were regularized and the same has been viewed
seriously and as such, departmental proceedings have been initiated against the
responsible officers.
14. Mr. Deepak Kumar Dubey, AC to learned AAG submits that the Bank
has to take a decision in the matter and State is a formal party.
FINDINGS OF THE COURT
15. From perusal of the documents brought on record and after hearng
learned counsel for the parties, this Court is of the considered opinion that the
matter requires reconsideration by the authorities/ respondents for the following
facts and reasons:
(i) Admittedly the impugned order has been passed in complete violation of the
cardinal principles of natural justice. The services of the petitioners were
regularized by the order of the respondents and subsequently deregularised
and also the order has been passed to recover the difference of paid salary.
Any order visiting with civil and evil consequences, without affording
opportunity of hearing, is bad in law and is fit to be quashed and set aside.
(ii) The respondents authorities, after regularization, have subsequently reviewed
their own order, which is not permissible in the eyes of law. The law is well
settled, as observed in the case reported in 1937 Privy Council ... ... . The
respondents have nowhere disputed that the impugned order has been passed
without hearing them rather finally admitted the same.
(iii) Petitioners are the Class-IV employees working as a Peon or Assistant, and as
such, taking into consideration the law laid down in the case of State of
Karnataka Vs. Umadevi reported in (2006) 4 SCC 1 and Satya Prakash &
Ors. Vs. State of Bihar & Ors., reported in (2010) 4 SCC 179, I find case of
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the petitioner is fit to be remanded for reconsideration taking sympathetic
consideration for payment of their salary (current as well as arrears) and
admissible benefits after regularization of their services.
16. In view of aforementioned facts and circumstances, the impugned office
order dated 31.10.2018, issued by respondent no. 3 (Chief Executive Officer,
Jharkhand State Cooperative Bank), is hereby quashed and set aside.
17. The matter is remanded back to the respondents for reconsideration for
regularizing of services. The respondents shall pass final order after following
the cardinal principles of natural justice. Before passing final order of
regularization the petitioner shall be given opportunity of personal hearing. The
respondents shall also take sympathetic view of the matter regarding
consideration of payment of their salary (current as well as arrears thereof) and
admissible benefits after regularization of their services, within a period of eight
weeks.
18. With the aforementioned observations and directions, the writ petition
stands disposed of.
(Dr. S.N. Pathak, J.)
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