Harendra Pati Tripathi vs The Bihar State Cooperative Bank ...
2021 Latest Caselaw 1863 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.14662 of 2018
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Harendra Pati Tripathi Son of Late Birendrapati Tripathi, resident of Village- Belauti, P.S. Sahpur, District- Bhojpur.

... ... Petitioner/s Versus

1. The Bihar State Cooperative Bank Limited

2. The Chairman, the Bihar State Co-operative Bank Limited, Ashok Rajpath, Patna.

3. The Managing Director of the Bihar State Co-operative Bank Limited, Ashok Rajpath, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Awadhesh Kumar Mishra, Adv.

Mr. Ajay Kumar, Adv.

     For the Bank           :      Mr. Prashant Kumar, Adv.
                                   Mr. Nishi Nath Ojha, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY C.A.V. JUDGMENT Date : 06-04-2021

Heard learned counsel for the petitioner and learned

counsel for the Bihar State Cooperative Bank Ltd. (hereinafter

referred to as 'the Bank').

The petitioner has filed the instant application for

quashing the memo no.2281 dated 20.6.2018 issued under the

signature of the Managing Director of the Bihar State

Cooperative Bank, Patna whereby and whereunder the

respondent-Bank rejected the representation of the petitioner for

payment of arrears of salary for the period from the date of

dismissal of the petitioner till the date of his retirement, for a

direction to the Managing Director of the Bank to pay to the Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

petitioner the arrears of salary for the said period from 6.3.2004

to 30.9.2012 and for other reliefs.

The case of the petitioner in brief is that he was appointed

as Night Guard in the Bank in the year 1972 and continued to

carry out his duties with full honesty and integrity to the

satisfaction of the authorities of the Bank. Hearing about the

tragic death of his son-in-law on 10.12.2003, under serious

mental depression, the petitioner rushed to Ranchi on

20.12.2003. He could not even give information to his family, as

a result of which his son filed a written report with the local

Police Station on 28.2.2004 requesting that steps be taken for

recovery of his father. The petitioner was treated by an eminent

doctor/ psychiatrist and thereafter joined his duties at the Bank

in January, 2004. Not having fully recovered he was again taken

for treatment to Ranchi on 4.3.2004 and finally came back to

Patna on 8.3.2004.

It is further case of the petitioner that he was apprised by

his son about having been dismissed from service on 6.3.2004

by an order issued under the signature of the Managing Director

of the Bank. He preferred an appeal before the Chairman,

however as he did not get any relief, he moved this Court by

filing C.W.J.C.No. 8130 of 2008 challenging the order of his Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

dismissal dated 6.3.2004. The writ application was allowed vide

order dated 14.8.2014 (Annexure-4) and the order of dismissal

was set aside. The petitioner filed a representation before the

Managing Director of the Bank requesting for payment of

arrears of salary including retiral benefits from the date of his

dismissal i.e 6.3.2004 till the date of retirement i.e 30.9.2012.

The Managing Director of the Bank vide letter dated 8.1.20015

asked the petitioner to reply as to why his claim for payment of

salary for the intervening period be not rejected on the principle

of 'no work no pay.' The petitioner submitted his reply and it

was by order dated 20.6.2018 that the Managing Director of the

Bank rejected the prayer of the petitioner for payment of his

arrears of salary for the period from 6.3.2004 to 30.9.2012 on

the principles of 'no work no pay'. It is against this order dated

20.6.2018 that the instant application has been preferred by the

petitioner for the relief as stated above.

A counter affidavit was filed on behalf of the Bank. As

per the case of the Bank, the petitioner was found guilty for

unauthorized absence and was dismissed from service of the

Bank on 6.3.2004. The said order of dismissal was challenged

by the petitioner in C.W.J.C.No. 8130 of 2008, wherein,

although the order of dismissal passed by the Managing Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

Director of the Bank was set aside, however it was held that as

the petitioner had absented himself and had not appeared even

after newspaper publication, he would not be entitled to back

wages for the period he absented, unless and until the same is

adjusted against any other leave. It was submitted that in

compliance of the order of this Court, the petitioner was

reinstated in service upto 30.9.2012 and for the period that he

had absented himself from duty, on the principles of 'no work

no pay', salary for the said period was not found admissible. It

was submitted that the order dated 14.8.2014 passed in

C.W.J.C.No. 8130 of 2008 not having been challenged by the

petitioner, the petitioner was not entitled for any relief in the

instant writ application as the issue herein had already been

decided by the said order.

Having heard learned counsel for the parties and on going

through the materials on record, it transpires that the fact not in

dispute is that the petitioner had been dismissed from service by

order dated 6.3.2004 passed by the Managing Director of the

Bank, which was challenged by the petitioner in C.W.J.C.no.

8130 of 2008. The said writ application was allowed by order

dated 14.8.2014 (Annexure-4) in the following terms:-

"9. In the facts and circumstances of the case, this writ application is allowed and the Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

impugned order of dismissal passed by the Managing Director of the Bank is set aside. However, as the petitioner absented himself and has not appeared even after newspaper publication, he would not be entitled to back wages for the period he absented, unless and until the same is adjusted against any other leave. However he would be entitled to any other admissible dues, which was pending prior to his unauthorized leave on 02.02.2004.

10. With the aforesaid observation, this application stands allowed."

It may be mentioned here that on the request of the Court,

learned counsel for the petitioner provided a photocopy of the

relevant part of the writ petition of C.W.J.C.No. 8130 of 2008

and paragraph no.1 of the same is quoted hereinbelow for ready

reference.

"1. That this is an application for issuance of a writ of certiorari for quashing the impugned order of dismissal issued under rep letter core no.7782 dated 06.03.04 issued by the Managing Director Bihar State Co-operative Bank Ltd. whereby and whereunder, the petitioner has been dismissal from the post of Night Guard inter alia the following:-

Reliefs

(a) The order issued under the reperence no.- dated 06.03.2004 by the Managing Director be set aside whereby and whereunder the petitioner has been dismissed from the post of Night Guard of Bihar State Co-operative Bank Ltd.

(b) Respondents be directed to reinstate the petitioner in his service with all consequential benefits."

From the facts stated hereinabove it would clearly be

evident that the petitioner who was dismissed from service by Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

order dated 6.3.2004 challenged the said order in C.W.J.C.No.

8130 of 2008. From perusal of the prayer/relief sought for by

the petitioner in the said C.W.J.C.No. 8130 of 2008 which is

quoted hereinabove it would also be evident that besides

challenging the order of his dismissal, the petitioner had also

prayed for reinstatement in service with all consequential

benefits. In the opinion of the Court, the consequential benefits

prayed for in the said writ application was the arrears of salary

for the period that the petitioner remained under dismissal. This

Court by order dated 14.8.2014, while setting aside the order of

dismissal held that as the petitioner absented himself and did

not appear even after newspaper publication, he would not be

entitled to back wages for the period he absented. This order not

having been challenged by the petitioner in appeal, attained

finality and the issue of payment of arrears of salary for the

period that the petitioner remained under dismissal also stood

concluded.

It is not the case of the petitioner that in terms of the said

order, the period of his absence could have been adjusted

against any other leave, as observed in the order dated

14.8.2014.

Thus in view of the aforesaid facts and circumstances, Patna High Court CWJC No.14662 of 2018 dt.06-04-2021

issue relating to payment of arrears of salary for the period that

the petitioner remained under dismissal having already been

refused by this Court by its order dated 14.8.2014 wherein it

held that the petitioner 'would not be entitled to back wages for

the period he absented', the Court finds no merit in the instant

application.

The writ application stands dismissed.

(Partha Sarthy, J)

Bibhash/-

AFR/NAFR
CAV DATE
Uploading Date          7.4.2021
Transmission Date