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THE HOSHIARPUR CENTRAL COOPERATIVE BANK versus HARJAP SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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The Hoshiarpur Central Cooperative Bank v. Harjap Singh & Ors - LPA-975-2002 [2006] RD-P&H 644 (8 February 2006)

Letters Patent Appeal No. 975 of 2002 1

The Hoshiarpur Central Cooperative Bank Limited, Hoshiarpur V.

Harjap Singh and others

Present: Shri Ashwani Prasher, Advocate,for the appellant.

Shri Sudeep Mahajan, Advocate, for respondent No.1.

Viney Mittal,J.

Respondent-Harjap Singh, filed a petition under Articles 226/227 of the Constitution of India, for the issuance of a writ of mandamus for directing the respondent-authorities to grant him the same salary as was being granted to other Gunmen in the regular pay scales. The writ petition filed by Harjap Singh was allowed by the learned Single Judge vide judgment dated May 10,2002. The aforesaid judgment has been impugned before us by the appellant, Hoshiarpur Central Cooperative Bank Limited, Hoshiarpur ( hereinafter referred to as the "appellant-Bank") through the present Letters Patent Appeal.

Writ petitioner, Harjap Singh is an Ex-serviceman. After his Letters Patent Appeal No. 975 of 2002 2

discharge from Indian Army on June 30,1987, he applied to the Hoshiarpur Central Cooperative Bank Limited,Hoshiarpur for recruitment as a Gunman.

He was appointed in the aforesaid capacity with effect from May 30,1988.

His appointment was made on daily wages. In May,2000 a Civil Writ Petition No.5972 of 2000 was filed by the writ petitioner with a grievance that the action of the Bank in keeping him on daily wages and not placing him in the regular pay scales was arbitrary, illegal and violative of the principles of equality. Accordingly, the prayer was made to issue a writ of mandamus to direct the respondents to grant him salary in the regular pay scales.

The claim of the writ petitioner was contested by the appellant- Bank and others. Beside the contest on merit, it was claimed that the writ petitioner had earlier filed Civil Writ Petition No.10917 of 1993, with a prayer that his services be regularised. The said writ petition was got withdrawn by the writ petitioner with a liberty to approach the Labour Court. It was claimed by the appellant-Bank that since the writ petitioner had not disclosed the aforesaid fact in the writ petition,therefore, the writ petition filed by him was liable to be dismissed. It was further claimed by the appellant-Bank that the appointment of the writ petitioner had not been Letters Patent Appeal No. 975 of 2002 3

made by following any regular procedure of advertisement etc. and, therefore, he could not claim any benefit of regularisation.

The learned Single Judge, on the basis of the pleadings of the parties and the material available on the record, allowed the writ petition filed by the writ petitioner. Directions were issued to the appellant-Bank to fix the pay of the petitioner in scale of payment for the post of Gunman. It was further directed that after the fixation of his pay, arrears shall be payable to the petitioner from May 16,1997 till the date of actual payment.

The respondents were also directed to determine the service benefits payable to the writ petitioner, on that basis. The aforesaid judgment of the learned Single Judge has been impugned before us by the appellant-Bank.

We have heard Shri Ashwani Prasher, learned counsel appearing for the appellant-Bank and Shri Sudeep Mahajan, learned counsel appearing for writ petitioner( respondent No.1) and with their assistance have also gone through the record of the case.

Two folds arguments have been raised by the learned counsel for the appellant to assail the judgment of the learned Single Judge. Firstly, it has been argued that an earlier writ petition filed by Harjap Singh being Civil Writ Petition No.10917 of 1993 had been got dismissed by him as Letters Patent Appeal No. 975 of 2002 4

withdrawn on July 22,1994 with a liberty to approach the Labour Court. The aforesaid fact had not been disclosed by the writ petitioner while filing the present writ petition. On that account, it has been argued by the learned counsel that the writ petition filed by the petitioner was liable to be dismissed solely on account of the concealment of facts . Secondly, it has been argued by the learned counsel that the petitioner was, in fact, a back door entry and had not been employed by following any regular process of selection. On that account also, it has been argued that the claim of the petitioner for regularisation/placement in regular scales was not legally justified.

We have duly considered the aforesaid contentions of the learned counsel for the appellant but find ourselves unable to agree with the same.

A copy of the order dated July 22,1994 in Civil Writ Petition No.10917 of 1993 has been appended as Annexure R3/1 on the record. A perusal of the same shows that in the earlier writ petition, the writ petitioner had sought a writ of certiorari for quashing order dated August 26,1993 vide which his services had been terminated. Although, a writ of mandamus was also sought for directing the respondents to allow the writ petitioner to Letters Patent Appeal No. 975 of 2002 5

remain in service and to regularise his services, but we find that the aforesaid prayer was, in fact, a consequential prayer of the primary prayer claiming the issuance of writ of certiorari. It was, in the light of the aforesaid prayer, that the order dated July 22,1994 was passed by the Division Bench and the petitioner was permitted to withdraw the writ petition with a liberty to approach the Labour Court in accordance with law.

In these circumstances, we find that the claim made by the writ petitioner while filing the present writ petition was wholly distinct and separate and independent of his earlier claim.

Although, we find that the writ petitioner should have mentioned the aforesaid fact in the writ petition but merely on that account, when no undue advantage had been taken by the petitioner on account of any concealment, the petitioner cannot be non-suited.

With regard to the second argument of the learned counsel for the appellant also, we find that the same is not tenable. It is not in dispute that the writ petitioner had joined the services of the appellant-Bank in May,1988. He remained in continuous services, as a Gunman, since the aforesaid time. Initially he was paid Rs.30/- per day but later on his emoluments were fixed at Rs.1600/- per month. It is also not disputed that Letters Patent Appeal No. 975 of 2002 6

the posts of the Gunmen carried an initial salary of Rs.3400/-. In these circumstances, the appellant-Bank cannot be heard to contest the claim of the writ petitioner. After the writ petitioner had been directed to work continuously a long period of more than 15/16 years , it would be too late in the day for the appellant-Bank to claim that the initial entry of the writ petition was defective or a back door entry. In any case, the appellant-Bank cannot be permitted to raise the aforesaid plea.

No other point has been urged before us.

In view of the aforesaid discussion, we do not find any merit in the present appeal. The same is accordingly, dismissed.

( Viney Mittal)

Judge

September 7,2005 ( H.S.Bedi )

sks Judge


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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