The High Court · 2020
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. Nos.227, 228, 229 and 230 of 2020 In W.A. No.227 of 2020 Zonal Manager, UCO Bank Zonal Office, Bhubaneswar and another …. Appellants Saroj Kumar Barik Mr. Subrat Mishra, Advocate -versus- …. Respondent Mr. S.N. Panda, Advocate In W.A. No.228 of 2020 Zonal Manager, UCO Bank Zonal Office, Bhubaneswar and another …. Appellants Tuna Kanta Padhi
Legal Reasoning
Mr. Subrat Mishra, Advocate -versus- …. Respondent Mr. S.N. Panda, Advocate In W.A. No.229 of 2020 Zonal Manager, UCO Bank Zonal Office, Bhubaneswar and another …. Appellants Nibas Chandra Barik Mr. Subrat Mishra, Advocate -versus- …. Respondent Mr. S.N. Panda, Advocate In W.A. No.230 of 2020 Zonal Manager, UCO Bank Zonal Office, Bhubaneswar and another …. Appellants Prafulla Kumar Behera Mr. Subrat Mishra, Advocate -versus- …. Respondent Mr. S.N. Panda, Advocate Page 1 of 7 Order No. 17. CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY
Decision
ORDER 12.04.2023 1. The present appeals by the Appellants-UCO Bank are directed against a common order dated 6th February 2020 passed by the learned Single Judge allowing the corresponding writ petitions filed by the respective Respondents thereby directing the Appellants- UCO Bank to take the whole period of service rendered by each of the Respondents for the purposes of promotion, pension and gratuity and to pay the entire entitlements and arrears within two months from the date of the order. 2. The impugned order was stayed by this Court by an order dated 24th June, 2022. 3. This Court has heard the submissions of Mr. Subrat Mishra, learned counsel appearing for the Appellants and Mr. S.N. Panda, learned counsel appearing for the Respondents. 4. The background facts are that each of the Respondents was engaged as a Daily Wage Worker at different Braches of UCO Bank from different dates, the earliest being 1st October, 1987. On 12th October, 1989, a settlement was entered into between the Management of UCO Bank and its workmen under Section 2 (p) read with 18 (1) of the Industrial Disputes Act, 1947. It was agreed Page 2 of 7 to absorb casual workers as permanent employees subject to fulfillment of the conditions stated therein. A panel was to be created of the eligible persons and as and when vacancies arose they were to be permanently absorbed. Clause-4 of the said settlement specifically stated that “persons absorbed shall be fitted at the initial stage of the scale of pay in the sub-ordinate cadre as per the Bipartite Settlement and would be eligible for the service condition accordingly. He shall not be entitled to claim any benefits for higher wages or service or any other purposes for the period he was engaged on casual basis prior to his absorption.” 5. Pursuant to the above settlement, as and when vacancies arose, Respondents were absorbed on permanent basis. One such letter was dated 9th June 2005 pointing the Respondent in W.A. No.227 of 2020 as Peon-cum-Farash. Para 1 of that letter reads as under: “You will be paid a basic salary of Rs.2,750/- per month and other allowances as applicable as per Bipartite Settlement and would be eligible for service conditions accordingly. You shall not be entitled to claim any benefits for higher wages of service or any other perquisites for the period you were engaged on casual basis.” 6. The letter made it clear that the Respondent would be entitled to pension in terms of the pension regulations. 7. For the reasons not clearly explained after waiting for nine years, Respondent in W.A. No.227 of 2020 filed W.P.(C) No.1897 of 2014 in this Court praying for a direction to the Bank “to release the arrear dues i.e., salary of Peon with effect from date of Page 3 of 7 empanelment and after adjusting the wages paid during the tenure so that the pension and gratuity would be payable to him with effect from 1st April, 1990”. In terms of the averments made in the said writ petition, it was contended that the Respondent had been empanelled on 31st March, 1990. 8. In the counter affidavit filed by the UCO Bank, it was pointed out that the Respondent had agreed to the terms and conditions of the settlement dated 12th October 1989, which was binding on him and had also accepted the terms of the appointment letter issued on 9th June 2005 whereby he was not entitled to any payment for the period he was engaged on casual basis i.e., prior to his absorption. In the impugned order, the learned Single Judge has accepted the plea of the Respondents that their cases are covered by the decisionsof the Supreme Court in The Direct Recruit Class-II Engineering Officer’s Association v. State of Maharashtra AIR 1990 SC 1607 and Netram Sahu v. State of Chhatisgarh 2018 (1) CLR (SC) 969 and has accordingly allowed the writ petition in a manner indicated hereinbefore. 9. To begin with the Court notes that the decision of the Supreme Court in The Direct Recruit Class-II Engineering Officer’s Association (supra) has no application whatsoever to the case on hand. That was a case concerning inter se seniority between direct recruits and promotees and for the purposes of seniority whether the period of ad hoc service should be counted or not. That is not the issue in the present case at all. Here, the Respondents are bound by the terms of the settlement entered into between UCO Bank and its Page 4 of 7 workmen on 12th October, 1989 and the authorization for the letter dated 9th June 2005 absorbing the Respondent in W.A. No.227 of 2020 is traceable to that settlement. Further, the Court notes that the decision in Netram Sahu v. State of Chhatisgarh (supra) was dealing with the issue of payment of gratuity and whether for the purposes of computing the continuous service, the period prior to regularization could be included. That was again not a case concerning any settlement between the workers and the management which form the basis of the orders of the permanent absorption of the employees. 10. Consequently, this Court is unable to concur with the conclusion reached by the learned Single Judge that both the above judgments “have direct application to the case of the Petitioner at hand.” Neither of the decisions was delivered in a factual scenario even similar to the case on hand. 11. It was contended by the learned counsel for the Respondents that certain clauses of the settlement dated 12th October 1989 were hit by Section 23 of the Indian Contract Act, 1872 and therefore, should be declared by this Court to be opposed to public policy. One of the clauses according to Mr. Panda concerns the waiver by the Respondents of any claim to the arrears of wages for the period prior to absorption on a regular basis. 12. It is too late in day for the Respondents now to turn around and question the settlement dated 12th October 1989, 34 years after it was entered into. On the other hand, the Respondent without any Page 5 of 7 protest accepted the letter dated 9th June 2005 whereby he was absorbed on regular basis in the post of Peon-cum-Farash. He accepted all the terms and conditions attached to that letter. For nine years, no protest was raised by the Respondent. Suddenly in 2014, a writ petition was filed again not questioning the settlement, but claiming arrears of salary contrary to the express terms of the settlement. The above plea is therefore plainly unacceptable and impermissible in law. 13. The Respondents are bound by the terms of the settlement and terms of the letters of appointment issued to them way back in the year 2005. They cannot be permitted to question those terms nine years thereafter through writ petitions as was done before the learned Single Judge. 14. It is contended by Mr. Panda that the Respondents upon their superannuation would be entitled to gratuity. 15. Mr. Subrat Mishra, learned counsel for the Appellants-UCO Bank submits that gratuity would be admissible to the Respondents as per the statutory norms upon their retirement. 16. In view of the above submissions, the Court does not consider it necessity to issue any separate directions in that regard. 17. For the aforementioned reasons, the impugned directions issued by the learned Single Judge cannot be sustained in law. The impugned order of the learned Single Judge is hereby set aside. Page 6 of 7 18. The writ appeals are allowed. But, in the circumstances, with no order as to costs. Issue urgent certified copy of this order as per rules. Chief Justice (Dr. S. Muralidhar) Judge S.K. Guin (G. Satapathy) Page 7 of 7