High Court · 2012

Earlier some persons so terminated by the said order dated 25.02.1999, f iled writ petitions before this court, being W.P.(C) No.1090/1999, W.P.(C) No.98 2/1999 and W.P.(C) No.863/1999. That batch of writ petitions as stated, was allo wed by the judgment and order dated 25.09.2002, quashing the declaration dated 1 0.02.1999 of the respondent-Bank as well as the said impugned termination order dated 25.02.1999. 4. It is stated in the Bar that being aggrieved, the respondent-Ban k filed writ appeals against all the writ petitions including those mentioned he rein. By a common order dated 06.11.2003 as passed in Writ Appeal Nos.722/2002, 723/2002, 724/2002, 725/2002, 726/2002 and 728/2002, all those writ appeals were dismissed but it was clarified that the order so passed by the learned Single J udge, setting aside the resolution and the order of termination by the responden t-Bank dated 10.02.1999 shall remain confined to the writ petitioners only. 5. The respondent-Bank carried on Special Leave Petitions being SLP No.4365-4370 of 2004 under Article 136 of the Constitution of India against the said common order dated 06.11.2003, culminating thereafter to Civil Appeal No.1 836/2011 and others. By the order dated 05.04.2007, the Supreme Court modified t he order of the High Court in the following terms : (cid:28)However having regard to the peculiar facts and circumstances of the case, part icularly the financial health of the appellant Bank, we direct that the responde nts shall be entitled to 50% of backwages and not 100% as ordered by the High Co urt. (cid:29)

6. It is contended by the learned counsel for the petitioners that in the same line, order dated 29.02.2009 was passed by this court in W.P.(C) No. 162/2008, which is usefully reproduced hereunder. (cid:28)The petitioners have been terminated by order dated 25-02-1999, which order has already been set aside by this Court in W.P(C) No. 1417 of 1999 and other conne cted cases. The aforesaid order of this Court dated 25-09-2002 passed in W.P(C) No. 1417/1999 and other connected cases have been upheld in appeal subject to th e modification that the concerned employees of the Bank will be entitled to 50% of the arrears/back wages instead of full back wages. The above order of the Court will cover the present case also, a position which had not been disputed. In the above circumstances, writ petition is disposed of on simi lar lines with the direction that the order dated 25-02-1999 terminating the ser vices of the petitioners stands interfered with and the petitioners shall be pai d 50% of the back wages due to them. This will dispose of the writ petition. (cid:29) Learned counsel appearing for the petitioners also referred to t he similar orders dated 16.05.2008 and 06.11.2009 as passed in W.P.(C) No.1131/2 008 and W.P.(C) No.4761/2009 respectively, where the said order dated 25.02.1999 was under challenge.

7. By the present batch of writ petitions, the petitioners have als o put that order dated 25.02.1999 under challenge, questioning its legality inas much as the said order was passed in complete disregard to the provisions of Sec tion 25F of the Industrial Disputes Act,1947. In Mohan Lal vs. Bharat Electronic s Limited as reported in (1981) 3 SCC 225, the Apex Court held that the breach o f that Section would render the decision/order void ab initio inasmuch as the sa id Section engrafted the inviolable principles of natural justice for retrenchme nt of the workers. Learned counsel for the petitioners quite emphatically submit ted that this batch of writ petitions are squarely covered by the said decisions of this Court as well as of the Apex Court as stated. Similar order is therefor e warranted. 8. Mr. A.K. Sharma, learned Standing Counsel, ASCARD Bank, stoutly confronted that submission, stating that this batch of writ petitions suffer fro m delay and laches and those are required to be slashed at the threshold. He fur ther drawing attention of this court to the financial health of the Bank-respond ents, submitted that if similar order is passed in view of the decisions of this High Court and the Apex Court, it would be uphill task for the Bank-respondents to mobilise resource for payments of the back wages as well as to discharge the liability that would surface in the event of reinstatements.

9. Learned counsel appearing for the petitioners set up a stout rej oinder against the submission of the learned Standing Counsel for the ASCARD Ban k and submitted in unison that in the writ petitions sufficient explanation for the delay has been demonstrated. The Bank-respondents assured the writ petitione rs to uniformly implement the decision of the Courts when it would reach its fin ality and on holding out such assurance they kept the petitioners waiting for a considerable period. Apart that, in some writ petitions it has been stated that for poverty, the petitioners could not approach this Court. As the order of term ination dated 25.02.1999 was interfered by the Courts, the fruits of such judgme nt and order were expected to be made available to the petitioners, but that was not done. When they realised that their legitimate expectation was belied, they approached this court in no time. Apart that, a few decisions of the Apex Court have been pressed to buttress the said contention.

10. n (1997) 6 SCC 721, the Apex Court held : In K. C. Sharma & Ors. Vrs. Union of India & Ors., as reported i (cid:28)Having regard to the facts and circumstances of the case, we are of the view th at this was a fit case in which the Tribunal should have condoned the delay in t he filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the del ay in filing of OA No. 774 of 1994 is condoned and the said application is allow ed. The appellants would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated 16- 12-1993 in OAs Nos. 395-403 of 1993 and connected matters &.. (cid:29) (emphasis added) In Lt. Governor of Delhi & Ors. Vs. Dharampal & Ors., as reporte

11. d in (1990) 4 SCC 13, the Apex Court held : (cid:28)Subsequently, some other constables whose services were similarly terminated bu t were not reinstated in service even as fresh entrants, filed writ petitions in the High Court of Delhi being C.W.P. Nos.270 and 937 of 1978. These writ petiti ons were heard by Anand,J. who rejected the contention raised by the respondents in the writ petitions regarding the delay and laches in moving the writ petitio ns, allowed the writ petitions quashing the impugned order of termination declar ing that the petitioners will be deemed to have been in service and would be tre ated as such subject to certain conditions. &.. (cid:29) (emphasis added) In Shankara Cooperative Housing Society Limited Vrs. M. Prabhaka 12. r & Ors., as reported in (2011) 5 SCC 607, following the principles as laid down in the previous judgments, the Supreme Court held :

47. The Privy Council in Lindsay Petroleum Co. V. Hurd : (1874) LR 5 PC 221, wh ich was approved by this Court in Moon Mills Ltd. V. Industrial Court : AIR 1967 SC 1450 and Maharashtra SRTC V. Balwant Regular Motor Service : AIR 1969 sc 329 , has stated : (Lindsay Petroleum Co. case, LR pp. 239-40) (cid:28)Now the doctrine of laches in courts of equity is not an arbitrary or a technic al doctrine. Where it would be practically unjust to give a remedy, either becau se the party has, by his conduct, done that which might fairly be regarded as eq uivalent to a waiver of it, or where by his conduct and neglect he has, though p erhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be ass erted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any stat ute of limitations, the validity of that defence must be tried upon principles s ubstantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, whi ch might affect either party and cause a balance of justice or injustice in taki ng the one course or the other, so far as it relates to the remedy. (cid:29) (emphasis a dded)

13. In K.B. Shephard & Ors. vs. Union of India & Ors., as reported i n AIR 1998 SC 686, the Apex Court has laid down a principle to ensure the substa ntive ends of justice, the relevant part of the judgment is extracted hereunder : (cid:28)Some of the excluded employees have not come to Court. There is no justificatio n to penalise them for not having litigated. They too shall be entitled to the s ame benefits as the petitioners. Ordinarily the successful parties should have b een entitled to costs but in view of the fact that they are going back to employ ment, we do not propose to make orders of costs against their employers. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves alive to the human problem involved in it. (cid:29) (emphasis added)

14. CARD Bank placed the following judgments of the Supreme Court : (1) M/s Rup Diamonds & Ors. Vs. Union of India & Ors., as reported in (1989) On the other hand, Mr. A.K. Sharma, learned Standing Counsel, AS 2 SCC 356; P.S. Sadasivaswamy Vs. State of T.N., as reported in AIR 1974 SC 2271 a Durga Prashad Vs. Chief Controller of Imports and Exports, as reported i (2) (3) n 1969 (1) SCC 185.

15. In those cases, the fact is entirely different and not circumsta nced with situations where the same order was put under challenge and interfered with by the court. As such the Apex Court decisions as relied by Mr. Sharma, le arned Standing Counsel, ASCARD Bank cannot eclipse the decisions as referred by the learned counsel for the petitioners. Moreover, this court finds that there is no justification to pen 16. alise the writ petitioners in this batch of writ petitions by denying them from the benefits as provided to the similarly situated persons in other writ petitio ns including the writ petitions which were filed in the year 2008 and 2009 for n ot having litigated. Orders passed in the writ petitions filed in the year 2008 and 2009 as stated were also not challenged by the respondent-Bank and the respo ndent-Bank has implemented those judgements. Apart that, the Supreme Court on co nsideration of the financial health of the respondent-Bank has reduced the back wages from 100% as was ordered by this Court to 50%. 17. In view of this, the order dated 25.02.1999 terminating the serv ices of the petitioners stands interfered with and quashed so far the writ petit ioners are concerned. The petitioners except the petitioner No.2 in W.P.(C) No.5 121/2009 shall be reinstated as expeditiously as possible by any rate not later than 3(three) months from the date of receipt of the certified copy of this orde r to be submitted by the petitioners. It is further directed that the petitioner s shall be entitled to 50% of their back-wages from 25.02.1999 to the date of re instatement. The petitioner No.2 in W.P.(C) No.5121/2009 is the widow of a termi nated employee, namely Anisur Rahman and as such there is no question of her rei nstatement in service but the petitioner No.2 and other legal heirs, if any of s aid Anisur Rahman, shall be entitled to get 50% of the back wages from 25.02.199 9 till the date of death of said Anisur Rahman. For ascertaining the date of dea th, the petitioner No.2 in W.P.(C) No.5121/2009 shall furnish an authenticated c ertificate of death to the Bank-respondent along with a certified copy of this o rder. 18. and allowed to the extent as indicated above. No order as to cost. With this observation and direction, all these writ petitions st