IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP NO. : 1198/2006 Reserved on : 28.5.2010 Decided on: 21.6. 2010. Nami Ram. ...Petitioner. Versus United Commercial Bank and others. ... Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. B.N. Misra, Advocate. For the Respondents : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. Justice Rajiv Sharma, Judge Material facts necessary for the adjudication of this petition are that petitioner served the Indian Army for about 15 years. He was discharged in the year 1978. He was engaged as casual worker against the vacancy of Sweeper-cum-Peon in the respondent-Bank at its Thanedhar Branch in Shimla on 7.3.1989. Petitioner’s services were terminated in the year 1992. He challenged his termination by way of CWP No. 234/1992. The Court directed the respondents vide order dated 30.11.1992 to re-engage the petitioner on the same post. CWP No. 234/1992 was finally disposed of by this Court on 26.5.1993. As per the averments contained in the petition, petitioner was empanelled as casual worker on 19.10.1989. Petitioner submitted application for Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 regularization on 16.4.2004. He was regularized and made permanent Sweeper-cum-Peon with effect from 1.4.2005. He retired on 31.12.2005. Petitioner made several representations for the release of pensionary/ retiral benefits. Mr. B.N. Misra has strenuously argued that petitioner was to be regularized on the basis of circulars dated 19.10.1989 and 31.3.1990 instead of 23.4.2004. He then contended that circulars dated 19.10.1989 and 31.3.1990 were never circulated and the petitioner had no knowledge of these circulars. He lastly contended that his retrial benefits were required to be calculated after his regularization on the basis of circulars dated 19.10.1989 and 31.3.1990. Mr. Bhupender Gupta learned Senior Advocate appearing on behalf of the respondent-Bank has vehemently argued that since the petitioner had applied for the first time for regularization on 16.4.2004, he was regularized on 23.4.2004. He then contended that respondent- Bank has circulated the circulars dated 19.10.1989 and 31.3.1990 and the petitioner had knowledge of these circulars. I have heard the learned counsel for the parties and have perused the record carefully. Petitioner is an Ex-serviceman. He was engaged on 7.3.1989 as Sweeper-cum-Peon. His educational qualification is 3rd standard. It will be apt at this stage to take note of circular issued on 19.10.1989 under the subject “Empanelment and absorption of persons engaged on daily wage basis”. Para 2 thereof reads thus: “2. Eligibility criteria: (a) Only persons who have been engaged as casual worker for full day’s work and who have been discharging any of the normal duties in the Bank in the subordinate cadre as casual workers for a period of 240 days or more with or without interruption during the period of 3 years 3 immediately preceding this settlement. HOWEVER, THOSE WHO HAVE BEEN ENGAGED AS WATER BOY ON DAILY WAGE WOULD NOT BE ELIGIBLE FOR BEING CONSIDERED FOR ABSORPTION UNDER THIS SETTLEMENT. (b) For the purpose of computing 240 days, holidays and Sundays in a week would be included if such person has been engaged for the rest of the days in the said week. (c) Age: Such casual worker should have satisfied the normal stipulation in the Bank regarding age, namely, minimum 18 years and maximum 26 years on the date of his first engagement as casual worker. (In case of persons belonging to SC/ST categories, relaxation in age as applicable to such categories shall be permitted.) (d) Educational qualification: Such casual worker should have had a minimum qualification of 8th standard and not passed SSLC or equivalent examination on the date of his first engagement as casual worker.” It is provided in the circular that any person, who has qualification less than eighth standard may be absorbed as Sweeper- cum-Peon, however, on absorption he would not be eligible to be considered for promotion as also selection to any functional special allowance post for all the time in future. The persons being absorbed in terms of the settlement were supposed to apply to the competent authority in a prescribed manner on or before 30.11.1989. On receipt of such applications, the particulars were required to be verified. Para 4 of the circular provides for empanelment. It reads thus: “4. Empanelment: Persons eligible for consideration and who apply in terms of this settlement would be absorbed against vacancies immediately available in the Bank. Persons who are not absorbed immediately shall 4 remain in the panel for being absorbed in the permanent vacancies that arise in future.” Respondent-Bank issued another circular on 31.3.1990 (Annexure P-9). It postulates that casual workers, who were empanelled in terms of settlement dated 12.10.1989 will be absorbed in regular service only on authorization of vacancies by head office and such absorption shall be as per ranking in the panel prepared zone- wise on the basis of their tenure as casual worker within the meaning of settlement. There is also a provision of regularization of casual worker against leave vacancy. Case of the petitioner, in a nutshell, is that circulars issued on 19.10.1989 and 31.3.1990 were never brought to his notice. His further case is that in case these circulars had been brought to his notice, he would have definitely applied for empanelment and was required to be regularized strictly as per the norms prescribed. Respondent-Bank has filed CMP No. 1534/2009. It is averred in para 3 of this application that Manager, M.C. Bhaik was posted as Branch Manager during the year 1986 till 1991 and he still remembers that the circular being No. CHO/PAS/16/89 dated 19.10.1989 was duly circulated to all the staff members and also to the petitioner. It is further averred in para 3 that in usual norms and practice the Branch always received two copies of the circular from the Zonal Office/Regional Office and as per the practice and instructions of the Bank, they used to place one copy of circular on notice board and second copy of circular circulated among the staff members of the Branch and their signatures were obtained on the circular and thereafter the said circular was placed in correspondence file from regional office. It is also contended in this application that the old record including circular letters were weeded out/destroyed as per the manual and instructions issued under 5 the Banking Companies (Period of Preservation of Record) Rules 1985 of Banking Regulation Act, 1949. Respondent-Bank has taken this stand for the first time by way of CMP No. 1534/2009. It was necessary for the respondent-Bank to lead tangible evidence to satisfy the Court that the circular dated 31.10.1989 was circulated and the signatures of the petitioner were obtained and the copy of the same was displayed on notice board. Respondent-Bank has not taken any steps to establish from the Zonal office/Regional office that these copies were received by the Branch for further circulation even if the record was destroyed at the local Branch. In case the signatures of the petitioner had been obtained and the copy thereof had been displayed on the notice board, as argued by Mr. Bhupender Gupta, there was no reason why the petitioner would not have applied for empanelment before the prescribed date. Respondent-Bank has failed to prove that the copies were circulated and the signatures of the petitioner were obtained and the copy was displayed on the notice board. In these circumstances, it can safely be concluded that in case the circular has been brought to the notice of the petitioner, he would have definitely applied for empanelment. Circulars dated 19.10.1989 and 31.3.1990 are in English language. Petitioner has only passed 3rd standard examinations. Even assuming hypothetically that the signatures of the petitioner were obtained, it was impossible for the petitioner to know about the contents of the letter. It was expected from the Bank to apprise the petitioner of the rights, which have been accrued to him on the basis of these circulars in vernacular. Their Lordships of the Hon’ble Supreme Court in Dakshin Haryana Bijli Vitran Nigam and others versus Bachan Singh, (2009) 14 SCC 793 have held that deemed knowledge cannot be assumed where the affected party is to exercise an option. Their Lordships have 6 further held that record must show that administrative instructions in the circular were noted by an employee. Their Lordships have held as under: “8. It was pleaded by the respondent that he had no knowledge about the aforesaid instructions issued by the appellants nor were the same got noted from him and as such, he could not exercise his option for grant of pensionary benefits within the prescribed time-limit. The respondent submitted that immediately after acquiring the knowledge of the circular he exercised his option for being governed under the pension scheme on 20.12.1994. The respondent submitted that he was ready to deposit the requisite amount received by him under the EPF Scheme. The appellants did not give any response and after the retirement of the respondent calculated his pension and other retiral benefits with effect from the date of his regularization i.e. 14.10.1981. 9. The respondent issued reminders dated 2.9.2002 and 16.4.2003, but did not receive any response from the appellants. Ultimately, the respondent issued a legal notice to the appellants on 10.11.2003 calling upon the appellants to consider his pension case in the light of the instructions issued in the circulars of the appellants dated 6.8.1993 and 9.8.1994. Since no response was received by the respondent, therefore, he was compelled to file a writ petition before the Punjab and Haryana High Court. 10. The appellants' main plank of argument was that the said circulars were issued twice inviting options from the desirous employees for being governed under the pension scheme. Even the said circulars were also put on the Notice Board and copies thereof were endorsed to the Secretary, Workers' Union, but the respondent failed to exercise his option within the time prescribed and, therefore, his case for counting work-charge services towards pensionary benefits has rightly not been considered by the appellants. 11. It was submitted by the respondent before the High Court that he was always desirous and willing to opt for the pension scheme by counting the work-charge service and he was prepared to refund the amount of employer's share with interest under the EPF Scheme. 7 12. The respondent further submitted that immediately after he learnt about the circulars, he exercised his option for pension scheme and in fact he has been consistently requesting the appellants to consider his case for grant of pension but the grievance of the respondent has not been redressed. The respondent was compelled to approach the Punjab & Haryana High Court. 13. The Division Bench of the Punjab and Haryana High Court, after hearing the learned counsel for the parties at length, came to the definite conclusion that the appellants had failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing from the respondent. The High Court further observed that in the absence of any such material, it can well be inferred that the respondent had no knowledge about the options called by the appellants vide circulars dated 6.8.1993 and 9.8.1994. The High Court also observed that it would be unreasonable to deny pensionary benefits to the respondent despite the said circulars issued by the appellants. 21. The appellants had issued circulars dated 6.8.1993 and 9.8.1994 for giving pensionary benefits to the respondent and similarly placed employees. 28. In view of the law as has been articulated in a large number of cases where this court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence, in this case, it would be totally unreasonable and irrational to deny the respondent the pensionary benefits under the scheme particularly when the appellants have failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing by the respondent. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants.” Accordingly, it is held that the petitioner had no knowledge about the circular dated 19.10.1989 and there is no material on record to 8 come to a conclusion that the petitioner had knowledge about the circular. Petitioner has also moved CMP No. 2363/2009 whereby he has produced copy of letter dated 17.5.1997. Petitioner’s status has been shown in this letter as ‘empanelled candidate’. This document has been seriously disputed by Mr. Bhupender Gupta. He has vehemently argued that this letter, in fact, was never issued to the petitioner but the same was issued to one Sh. Surmu Ram. He has relied upon Annexure R-7 dated 2.6.1997. I have gone through document Annexure R-7 dated 2.6.1997. There is no reference to word “Armed Guard”. In case this letter has been issued in favour of Surmu Ram, the nomenclature ‘Armed Guard” was bound to be mentioned. Respondent-Bank has not placed the original of letter dated 17.5.1997. Even assuming hypothetically that letter was not issued in favour of petitioner but in favour of Surmu Ram, still the original copy of letter dated 17.5.1997 ought to have been produced by the bank. Bank has failed to do so. In these circumstances, the veracity of letter dated 17.5.1997 cannot be put under cloud. Mr. Bhupender Gupta has lastly contended that since petitioner has already been regularized on 23.4.2004, he cannot seek his regularization from anterior date. It is settled law that the citizen cannot waive his fundamental rights. The Apex Court in Nar Singh Pal versus Union of India and others, (2000) 3 SCC 588 have held that there cannot be any waiver or estoppel against the fundamental rights. Their Lordships have held as under: “13. The Tribunal as also the High Court, both appear to have been moved by the fact that the appellant had encashed the cheque through which retrenchement compensation was paid to him. They intended to say that once retrenchement compensation was accepted 9 by the appellant, the chapter stands closed and it is no longer open to the appellant to challenge his retrenchement. Thus, we are constrained to observe, was wholly erroneous and was not the correct approach. The appellant was a casual labour who had attained the 'temporary' status after having put in ten years' of service. Like any other employee, he had to sustain himself, or may be, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchement compensation paid to him, which was only a meagre amount of Rs. 6,350/-. was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any esstoppel against the exercise of Fundamntal Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.” In latest judgment their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh and others versus Gehar Singh, (2007) 12 SCC 43 have held as under: “19. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyaya's case.” Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for regularization strictly as per circular dated 19.10.1989 and 31.3.1990 with effect from 1989 with all the consequential benefits. 10 Respondents are further directed to work out the pensionary/ retrial benefits of the petitioner after regularizing him from 1989. Needful be done within a period of six weeks after the receipt of certified copy of this judgment. No costs. (Rajiv Sharma), Judge. 21.6. 2010. *awasthi*