Kailash Chandra Agarwal vs State Of Rajasthan And Ors
2022 Latest Caselaw 808 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10980/2017 Kailash Chandra Agarwal S/o Shri Khetsi Das Agarwal, R/o Tulsi Khet 5 K.m. Ajmer Road Village Mataji Ka Kheda Gram Panchayat Argia Tehsil And District Bhilwara Raj..

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Co-Operative Department, Government Of Rajasthan, Jaipur.

2. The Co-Operative Department Through Registrar, Nehru Shakar Bhawan, Jaipur.

3. The Central Co-Operative Bank Ltd., Bhilwara Through Its Managing Director, Bhilwara.

----Respondents Connected With S.B. Civil Writ Petition No. 10810/2017 Jagdish Prasad Sharma S/o Shri Banshi Lal Sharma, R/o Village And Post Shakargarh, Tehsil Jahazpur, District Bhilwara.

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Co-Operative Department, Government Of Rajasthan, Jaipur

2. The Co-Operative Department Through Registrar, Nehru Shakar Bhawan, Jaipur.

3. The Central Co-Operative Bank Ltd., Bhilwara Through Its Managing Director, Bhilwara.

----Respondents S.B. Civil Writ Petition No. 10926/2017 Bhagwati Lal S/o Shri Kanwar Lal Hiran, R/o Nolakha Mohalla Street No. 6 Gangapur District Bhilwara Raj.

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Co-Operative Department, Government Of Rajasthan, Jaipur.

2. The Co-Operative Department Through Registrar, Nehru Shakar Bhawan, Jaipur.

3. The Central Co-Operative Bank Ltd., Bhilwara Through Its Managing Director, Bhilwara.

----Respondents S.B. Civil Writ Petition No. 10928/2017 Jaidev Devpura S/o Shri Ram Chandra Devpura, R/o Goshala Road Dr. Nuwal Ke Samne Gulabpura District Bhilwara Raj..

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Co-Operative Department, Government Of Rajasthan, Jaipur.

2. The Co-Operative Department Through Registrar, Nehru Shakar Bhawan, Jaipur.

3. The Central Co-Operative Bank Ltd., Bhilwara Through Its Managing Director, Bhilwara.

----Respondents S.B. Civil Writ Petition No. 12158/2017 Bhagchand Jain S/o Shri Fateh Lal Jain, R/o 17-B Vivekanand

(2 of 6) [CW-10980/2017]

Colony Kisan Takies Ke Pas District Tonk Raj..

----Petitioner Versus

1. The State Of Rajasthan Through Secretary, Co-Operative Department, Government Of Rajasthan, Jaipur.

2. The Co-Operative Department Through Registrar, Nehru Shakar Bhawan, Jaipur.

3. The Central Co-Operative Bank Ltd., Bhilwara Through Its Managing Director, Bhilwara.

----Respondents

For Petitioner(s) : Mr. A. K. Choudhary (through VC). For Respondent(s) : Mr. M. S. Rathore (through VC).

Mr. P. S. Rathore (through VC).

HON'BLE MS. JUSTICE REKHA BORANA Order

17/01/2022

The petitioners were appointed on various posts with the

respondent Bank No.3-Central Co-Operative Bank Ltd. During the

tenure of their services, the respondent Bank passed a resolution

dated 25.05.2010, whereby, the superannuation age of the

employees was reduced from 60 years to 58 years. The said

resolution was challenged in S.B. Civil Writ Petition No.

5332/2010, which was decided on 05.07.2011 and the

respondent Bank was directed to reconsider the age of retirement

and also to continue with the services of the employees. In

pursuance to the directions of this Court, the respondent Bank

reconsidered the issue but again took a resolution to fix the age of

superannuation at 58 years. As a consequence, the petitioners

stood retired.

The resolution dated 18.07.2011 was again challenged and

vide interim order dated 06.09.2011, the effect and operation of

the resolution was stayed. In consequence thereof, the petitioners

were allowed to resume their duties.

(3 of 6) [CW-10980/2017]

During the pendency of the writ petitions, the Bank again

took a resolution to increase the age of superannuation from 58

years to 60 years. The statement to that effect was made before

the Court on behalf of the respondent Bank and in view of the

submission made, the petitions of the petitioners were dismissed

as having become infructuous.

Meanwhile, the petitioners after completing the age of 60

years, superannuated.

The grievance in the present writ petition of the petitioners is

that they were not paid the salary of the period during which they

remained out of service because of the resolutions being passed

by the Bank.

The period during which the petitioners remained out of

service is as under:

   Petitoner                    SBCWP No.                          Period
Kailash Chandra            10980/2017                        21.07.2011 to
Agarwal                                                      06.09.2011 (47 days)
Jagdish Prasad Sharma 10810/2017                             01.02.2011 to
                                                             06.09.2011 (218 days)
Bhagwati Lal               10926/2017                        21.07.2011 to
                                                             06.09.2011 (47 days)
Jaidev Devpura             10928/2017                        21.07.2011 to
                                                             06.09.2011 (47 days)
Bhagchand Jain             12158/2017                        21.07.2011 to
                                                             06.09.2011 (47 days)

Learned counsel for the petitioners has averred that it was

only on the basis of the submission made by the Bank that the

earlier writ petition was rendered as infructuous as the Bank had

promised the consequential benefits also in pursuance to the

resolution.

(4 of 6) [CW-10980/2017]

Learned counsel for the petitioner has relied upon the

judgment passed in Civil Appeal No. 5527/2012 ; State of

Uttar Pradesh v. Dayanand Chakrawarty & Ors. He has

submitted that the employees had remained out of service only

because of the wrong decision taken by the Bank and not because

of any fault on their part.

Learned counsel has stated that even while passing the

interim order dated 06.09.2011 in the earlier writ petition (S.B.

Civil Writ Petition No. 7263/2011), the issue pertaining to the

arrears was kept pending by the Court for decision at the time of

final hearing. But because of the petition being dismissed as

infructuous, the same could not be decided at that stage.

Learned counsel further submitted that two employees

namely Kailash Chandra Shotriya and Harish Chandra Joshi have

been paid the arrears of salary of the disputed period by the Bank

and the present petitioners have been denied the same without

any plausible reason.

Learned counsel for the respondent Bank has submitted that

as the petitioners had not worked during the period as alleged,

they were not entitled to the salary for that period on the principle

of 'no pay no work'.

Learned counsel did not dispute the fact of the other two

employees as named by the petitioners being paid the salary but

submitted that the same was on medical grounds.

Heard learned counsel for the parties and have perused the

material available on record.

It is clear on record that the respondent Bank had passed

the resolutions dated 25.05.2010 & 18.07.2011 without any logic

or reason, which were interfered in by this Court and ultimately

(5 of 6) [CW-10980/2017]

the resolution dated 16.12.2013 was passed by the Bank in the

interest of the Bank only. The said resolution dated 16.12.2013

was passed with the clear understanding that the benefits of that

decision are to be granted to even those employees who had

retired by that time.

The relevant portion of the resolution dated 16.12.2013

reads as under:

"ckn fopkj foe"kZ loZ lEefr ls cSad deZpkfj;[email protected] vf/kdkfj;ksa dh lsok fuo`fRr dh vf/kokf'kZd vk;q 58 o"kZ ds LFkku ij iqu% 60 o'kZ fd;s tkus dk fu.kZ; fy;k tkrk gSA lkFk gh tks [email protected]/kdkjh mPp U;k;ky; ds LVs izkIr dj lsok fuo`Rr gks pqds gS mUgsa Hkh 58 ds LFkku ij 60 o'kZ ds fglkc ls lsok fuo`fRr ifjykHk fn;s tkus dk fu.kZ; fy;k tkrk gSA bl lUnHkZ esa ekuuh; jktLFkku mPp U;k;ky; tks/kiqj esa deZpkfj;[email protected]/kdkfj;ksa dh lsok fuo`Rr ds lEcfU/kr tks izdj.k yfEcr gSa mDr fu.kZ;kuqlkj lekIr fd;s tkus ds fy, fu;ekuqlkj fof/kd dk;Zokgh djus dk Hkh fu.kZ; fy;k x;k] la;qDr jftLVªkj ¼cSafdx½ ds mDr i= fnukad 10-10-2013 ds Øe esa ekuuh; U;k;ky; }kjk izdj.k esa fn;s x;s LFkxu vkns"k dks fuLrkfjr djok;k tkosa ,oa Mh- ih-lh- dh dk;Zokgh dh tkosa] bl dk;Zokgh gsrq cSad ds v/;{k ,oa izcU/k funs"kd dks vf/kd`r fd;k tkrk gSA"

The Hon'ble Apex Court in the case of Dayanand

Chakrawarty (supra), while relying upon earlier judgments passed

in Harwindra Kumar reported in 2005(13) SCC 300, Radhey

Shyam Gautam reported in 2007(11) SCC 507 and Jaswant

Singh reported in 2006(11) SCC 464 observed as under:]

"We observe that the principle of 'no pay no work' is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed

(6 of 6) [CW-10980/2017]

for having not worked, and the principle of 'no pay no work' shall not be applicable to such employee.

38. In these cases as we have already held that Regulation 31 shall be applicable and the age of superannuation of employees of the Nigam shall be 60 years; we are of the view that following consequential and pecuniary benefits should be allowed to different sets of employees who were ordered to retire at the age of 58 years:

(a) The employees including respondents who moved before a court of law irrespective of fact whether interim order was passed in their favour or not, shall be entitled for full salary up to the age of 60 years. The arrears of salary shall be paid to them after adjusting the amount if any paid."

In view of the ratio as laid down by the Hon'ble Apex Court

in Dayanand Chakrawarty's case (supra), it is held that the

present petitioners would be entitled for the salary for the period

during which they remained out of service. The same shall be paid

to them within a period of three months from the date of receipt

of the copy of this order. If the same is not paid within the said

period, it would then be payable along with an interest at the rate

of 6% per annum.

With these observations, the present writ petitions are

allowed.

(REKHA BORANA),J 6 to 9 & 11-Sachin/-

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