ORIENTAL INSURANCE CO LTD Vs. SUBASH CHANDER GUPTA
HIGH COURT OF JAMMU AND KASHMIR
ORIENTAL INSURANCE CO LTD
Subash Chander Gupta
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(1.) THIS petition of revision is directed against the order dated 19 -09 -1998. The execution proceedings arise out of decree passed by the court of Sub -Judge (Chief Judicial Magistrate), Jammu on 04 -04 -1988,
which reads as under: -
The plaintiffâ„¢s suit is hereby decreed to the effect that plaintiffâ„¢s termination from service by defendant is illegal, null and void and order of termination bearing No. 2184/ 73 dated 07 -11 -1973 is hereby set aside being bad in law. Defendant is directed to reinstate plaintiff on the post of Assistant Branch Secretary or its equivalent post which was held by plaintiff at the time of his illegal termination of service and pay to the plaintiff the salary and other ancillary, benefits under rules from the date of termination of service till to date, as if his service had not been terminated. Plaintiff shall also be entitled to the costs of suit.
(2.) THE decree holder applied for execution and prayed that the judgment debtor be directed to promote him on the basis of seniority,
which occurring to him, was only an ancillary benefit granted to him by
the decree. The scope of the decree it appears has been a contentious
issue between the parties, which reached this court in the form of Civil
Revision No. 21/92 filed by the decree holder, which was decided on
04 -09 -1992 holding that: A short controversy has arisen in the present case regarding
interpretation of the judgment and decree passed by the court in favour
of the petitioner.
After reproducing decree, the petition was disposed of with the
following observations: -
...As observed above, benefits of pay have already been allowed to the petitioner. So far grant of bonus and leave encashment benefits are concerned, it is directed that the executing court shall determine the same in accordance with rules as the petitioner is entitled to the same in terms of the decree. As regards the question of promotion of the petitioner, order of his termination has been held to be illegal and he has been reinstated from the date he was ousted from service ad considering to this fact petitioner is required to be considered by the respondents for promotion in accordance with rules and regulations on the subject, which shall be done by the respondents within a period of three months, on time bound promotion basis. This revision petition is disposed of with these observations and executing court shall proceed further in the light of these directions..
So the decree was interpreted to mean (i) that entitlement of
bonus and leave encashment benefit will depend upon the rules regulating
the conditions of service applicable to the decree holder; and (ii) that
the decree holder will be considered for promotion in accordance with the
rules and regulations as applicable in his case. The question whether the
judgment debtor has been paid bonus and leave encashment benefits, is not
subject matter of controversy in this petition.
(3.) THE decree holder, it is admitted was considered for promotion by the Lower Management Service Committee in its meeting held on
06 -01 -1997. But the Committee was of the opinion that he does not qualify for promotion to the cadre of Administrative Office under 1971
Promotional Exercise i.e. the Promotion Policy in force at the relevant
time. This conclusion of the committee is based on the seniority position
assigned to him on the basis of guidelines for drawing seniority list of
officers appearing in the note attached to letter dated 18 -08 -1977,
addressed to the Managing Director, General Insurance Company of India,
Mumbai. Since his date of appointment as Assistant Branch Secretary in
the erstwhile unit of Jupiter Insurance Company was 21 -01 -1971, he was
assigned serial No. 414 in the seniority list dated 20 -09 -1977 of
Assistant Administrative Officers.
The case of the petitioner was then considered on the basis of 1979 Promotional Exercise i.e. the promotion policy and guidelines. He did not qualify for promotion under this policy also. The committee then
considered his case under 1980 Promotional Exercise and found that he
did not qualify for promotion under that policy also. Finally, the
committee concluded that his case for promotion to the cadre of Assistant
Manager will have to be considered alongwith others who were promoted to
the cadre of Administrative Officers in the year 1990. This report of the
Lower Management Service Committee was presented before the executing
court for recording satisfaction of the decree. However, the learned
Sub -Judge (Chief Judicial Magistrate), Jammu declined to accept and
directed as under: -
... The promotion case of the decree holder had to be considered as if decree holderâ„¢s service had not been terminated and once judgment debtor had found that the decree holder was eligible for consideration for promotion as A.O. in 1979 promotional exercise, he could not be denied such promotion on the basis of average work conduct rating which never existed. Like -wise it was not permissible to take into account the work conduct reports of the decree holder for subsequent years while considering for promotion in 1979. Such course adopted by the judgment debtor and their promotion committee militates against the spirit of decree and directions of the Honâ„¢ble High Court. It is unfortunate that the mandate and the spirit of decree sought to be executed has not been followed and every attempt has been made to frustrate the decree by adopting norms not permissible in law. In my opinion, the decree under execution cannot be permitted to be defeated on adopting such criteria by the judgment debtor. Obviously work record of the decree holder for future years could not have been taken into consideration for promotion in 1979. I am fortified in my approach by ratio of ruling given in Civil Revision No. 92/96 decided on 07 -04 -1988 by the Honâ„¢ble High Court in case captioned J&K. Bank Vs. Jagdish Chander Gupta.
In view of the findings recorded hereinabove it is held that the decree holder was entitled to promotion as A.O. (Administrative Officer) in 1979 and he has been left out arbitrarily and on the basis of consideration of future work conduct record which was not permissible. The findings given by the lower management service committee in its meeting held on 06 -01 -1997 are honest in law and whole exercise is futile. The same shall not be taken into consideration and the decree holder shall be adjusted as Administrative Officer from the date his immediate senior colleague has been promoted as A.O. in 1979 He shall be considered for further promotion to the cadre of A.M. and other higher cadres thereafter in accordance with the terms of decree and directions of the Honâ„¢ble High Court. One monthâ„¢s time is given to the judgment debtor to complete the exercise failing which proceedings in terms of Order 21 Rule 32 CPC for enforcement of decree may be initiated.
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