Ramesh Kumar Dwivedi vs Districtcentral Co Operative ...
2023 Latest Caselaw 2395 MP

                                                                       1
                                  IN    THE      HIGH COURT OF MADHYA PRADESH
                                                      AT JABALPUR
                                                           BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                   ON THE 10 th OF FEBRUARY, 2023
                                                   WRIT PETITION No. 11600 of 2014

                         BETWEEN:-
                         RAMESH KUMAR DWIVEDI S/O SHRI GAND LAL DWIVEDI, AGED
                         ABOUT 60 YEARS, VIVEK NAGAR REWA RAOD SATNA (MADHYA
                         PRADESH)

                                                                                                   .....PETITIONER
                         (BY SHRI PRATEEK KUMAR DUBEY - ADVOCATE FOR THE PETITIONER)

                         AND
                         1.       DISTRICTCENTRAL CO OPERATIVE BANK LTD THR.
                                  MANAGER SATNA (MADHYA PRADESH)

                         2.       JOINT REGISTRAR COOPERATIVE SOCIETIES REWA
                                  DIVISION DISTT. REWA (MADHYA PRADESH)

                         3.       PRESIDENT MADHYA PRADESH STATE COOPERATIVE
                                  TRIBUNAL BHOPAL (MADHYA PRADESH)

                         4.       REGIONAL COMMISSIONER EMPLOYEES PROVIDENT
                                  FUND SCHEME SCHEME NO. 5, VIJAY NAGAR JABALPUR
                                  (MADHYA PRADESH)

                                                                                                 .....RESPONDENTS
                         (BY SHRI QUAZI FAKHRUDDIN - ADVOCATE FOR RESPONDENT NO.1.)
                         (BY SHRI VIJAY KUMAR SHUKLA, - PANEL LAWYER FOR THE
                         STATE/RESPONDENTS NO.2 AND 3)
                         (BY SHRI J.K. PILLAI - ADVOCATE FOR RESPONDENT NO.4)

                                  This petition coming on for order this day, the court passed the following:
                                                                   ORDER

This petition is filed under Article 226 of the Constitution of India whereas it Signature Not Verified SAN should have been under Article 227 of the Constitution of India because order of a Subordinate Tribunal is being assailed before this High Court. Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST

Petitioner is aggrieved of judgment dated 30.06.2014 passed by the learned Madhya Pradesh State Cooperative Tribunal, Bhopal in First Appeal No.69/2010.

Petitioner's contention is that petitioner, who was working as Manager in the District Central Cooperative Bank, Maryadit, Maihar, his services were terminated after placing him under suspension vide order dated 21.06.1995. Enquiry was conducted and on the basis of the enquiry order of termination was passed on 20.10.2000. Thereafter, petitioner had filed a dispute between the Deputy Registrar, Cooperative Societies under Section 55(2) of the Madhya Pradesh Cooperative Societies Act, 1960. The dispute was decided by the Deputy Registrar, Rewa and claim of the petitioner for reinstatement with back wages was allowed.

Against this order of Deputy Registrar dated 17.01.2002, District Central Cooperative Bank, Maryadit had preferred an appeal to the Joint Registrar. Joint Registrar too refused to show any indulgence in the orders passed by the learned Deputy Registrar. Thereafter, matter was taken to the Tribunal which vide order dated 31.01.2005 on the basis of notification dated 26.07.1999 held that Deputy Registrar, Cooperative Societies was not entitled to hear the dispute and, therefore, remitted the matter to the Joint Registrar to hear and decide the controversy.

It is submitted that Joint Registrar, Cooperative Societies vide order dated 28.02.2009 ordered for reinstatement of the petitioner but refused to grant him back wages. This order of the Joint Registrar dated 28.02.2009 was assailed before the Cooperative Tribunal on 28.06.2010 along with an application under Section 5 of the Limitation Act, seeking condonation of delay in filing the appeal.

Vide impugned order dated 30.06.2014, learned Cooperative Tribunal has rejected

Signature Not Verified SAN the plea of the petitioner that he is entitled for back wages for the period he was stopped from performing his work on account of illegal removal. Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST

Reliance is placed on the judgment of Hon'ble Supreme Court in Deepali Gundu

Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and Others, (2013) 10 SCC 324. Reading para 22 of the said judgment, it is submitted that denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages.

Reading para 38.1 and 38.2, it is submitted that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

Reliance is also placed on the judgment of Tapash Kumar Paul Vs. Bharat Sanchar Nigam Limited and Another, (2014) 15 SCC 313 , wherein it is held that employee is entitled to be reinstatement with full back wages since in absence of full back wages, employee would be distressed and suffer punishment for no fault of his own in absence of proof of gainful employment.

Reliance is also placed on the judgment of Hon'ble Supreme Court in Pawan Kumar Agarwala Vs. Central Manager-II and Appointing Authority, State Bank of India and Others, (2015) 15 SCC 184.

Shri Quazi Fakhruddin, learned counsel for respondent No.1, in his turn, places reliance on a recent judgment of Hon'ble Supreme Court in Allahabad Bank and Ors. Vs. Avtar Bhushan Bhartiya, 2022 Live Law (SC) 405 wherein in para 32 it is held that "Even in we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer-employee may not be entitled to full back wages. This is

for the reason that there is nothing on record to show whether he was gainfully employee after his dismissal from service."

At this stage Shri Prateek Kumar Dubey submits that he has filed an affidavit to the Signature Not Verified SAN effect that he was not gainfully employed for the period when he remained away from the job. He also prays that though he stood superannuated in the year 2012 yet his retiral Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST

benefits have not be settled by the respondents.

As far as, second submission is concerned, it is directed that if dues are not already settled then be settled within three months in accordance with law.

A coming back to the first issue on entitlement of the petitioner for back wages some facts are necessary. An enquiry was initiated against the petitioner with issuance of show cause notice on 19.04.1995 thereafter petitioner was placed under suspension on 21.06.1995. On 04.02.1997 enquiry report was submitted to the competent authority. On 08.02.1997 final show cause notice was given to the petitioner. Thereafter, petitioner had filed its reply on 13.02.1997. On 11.06.1997 he was given opportunity of personal hearing. On 20.10.2000 punishment of dismissal was inflicted on him as he had accepted depositing a sum of Rs.27,521/-. Petitioner was reinstated in February, 2009 in terms of the orders of the Joint Registrar, Cooperative Societies.

On the earlier occasion this Court had requested Shri Prateek Dubey to file copy of his pleadings before the Joint Registrar, Cooperative Societies to seek whether there was any pleadings about the gainful employment or not during the period of discontinuance of employment of the petitioner.

Petitioner instead of filing the pleadings so that Court could have ascertained whether there was any pleading of unemployment files an affidavit. Said affidavit is not a sufficient compliance in terms of the directions of the High Court to file the pleadings.

Thus, when petitioner himself has not made compliance of the orders passed by this Court and has not filed the pleadings to demonstrate as to whether there were any pleadings in regard to gainful employment, though it is true that in Deepali Gundu Surwase (supra), Hon'ble Supreme Court has held that in case of illegal termination reinstatement with back wages is a rule but at the same time, it is also true that nobody Signature Not Verified SAN

can be allowed to make a capital out of his own fault. Petitioner was required to prove Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST

that he was not gainfully employee and there should have been specific pleadings in this

behalf. In fact, there are no such pleadings even in Court of first instance i.e. Joint Registrar Cooperative Societies and, therefore, the latest judgment of Supreme Court passed by a Bench of the similar strength in case of Allahabad Bank and Ors (supra) which clearly makes a mention of the fact that to get back wages, a workman is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. In the first instance, there is an obligation on the part of the employee to plead that he was not gainfully employed. This decision in Allahabad Bank and Ors. (supra) has taken into consideration earlier judgments of Supreme Court in Deepali Gundu Surwase (supra), Pawan Kumar Agarwala (supra) and, therefore, when petitioner has failed to demonstrate from record that there was any pleading in regard to unemployment or lack of gainful employment or employment on lesser wages during the period of his disengagement, petitioner is not entitled to back wages merely for the asking and therefore, when tested brief judgments rendered by the learned Cooperatives Tribunal cannot be said to be incorrect calling for interference in the supervisory jurisdiction of this High Court.

Petition fails and is hereby dismissed.

However, it is retreated that respondents shall if have not settled the claim of the petitioner in regard of gratuity shall settle them within 90 days from today. Shri J.K. Pillai submits that as far as respondent no.4 is concerned, they have already settled all the permissible claims at their end and he is also receipt of the pension given by employees provident fund.

Signature Not Verified SAN

(VIVEK AGARWAL) Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST JUDGE Tabish

Signature Not Verified SAN

Digitally signed by MOHD TABISH KHAN Date: 2023.02.15 10:18:49 IST