RAMCHANDRA PANDE v. BOARD OF REVENUE — 1984 DIGILAW 794 (MP)

V. D. GYANI, J,, J. ( 1 ) THE petitioner by this petition seeks to quash the revenue Board's order dated 6-5-1982 (6-5-82) (Annexure-XI), passed in appeal Case No. 145-1/80, against the order dated 4-7-1980, passed by the joint Registrar, Co-operative Societies, Indore, in Appeal Case No. N-II/79, threby allowing the respondent No. 4 Bank's appeal in the matter of petitioner's retirement under Rule 21 of the Madhya Pradesh Bank Employees services (Terms of Employment and Working Conditions) Rules (hereinafter referred to as the 'rules' ). ( 2 ) IT is not disputed that the petitioner was appointed as Secretary in the Respondent No. 4-Bank on 9-1-1947, his date of birth being 3-6-1927. The petitioner completed 25 years of service on 9-1-1972 and after considering the petitioner's case the Board of Directors of the Respondent-Bank on 30-3-1972, passed a resolution to the effect that the petitioner should not be retired from service. There is also no dispute with regard to the petitioner's contention that his service is governed by the Service Rules framed by the respondent-Bank, which came into force with effect from 1-7-1959. It is also not disputed that the Registrar, Co-operative Societies, Madhya Pradesh has in exercise of powers conferred under Section 55 (1) of the M. P. Co-operative societies Act, 1960 hereinafter referred to as the Act), framed rules relating to employment and working conditions of the employees. These rules came into force with effect from 8-11-1965. Rule 50 of the Rules framed by the registrar repeals all other Rules in force in any Bank immediately before the commencement of these rules (i. e. the Rules framed by the Registrar) on 8-11-1955. There is also no dispute that had the petitioner been continued in service, he would have completed the age of 60 years on 3-6-1982. But the point of controversy between the parties is that according to the respondent-Bank the petitioner has no vested right in him to continue in service till he reaches the age of 60 years. The other point of controversy is that the Bank having once decided not to retire the petitioner on having completed 25 years service, vide order Annexur-II, the subsequent resolution dated 4-8-1973 (Annexure-III), resolving to retire the petitioner is null and void. The other point of controversy is that the Bank having once decided not to retire the petitioner on having completed 25 years service, vide order Annexur-II, the subsequent resolution dated 4-8-1973 (Annexure-III), resolving to retire the petitioner is null and void. The petitioner contends that the earlier resolution could not be legally reviewed by the Respondent-Bank, while the respondent-Bank's contention is that even if there be no power to review the respondent-Bank was competent to pass such an order. ( 3 ) THE petitioner availed of the procedural remedies provided under the Act and was ordered to be reinstated in service by the Assistant Registrar, vide his order dated 16-8-1979 (Annexure-VII), although without back wages, following the principles of 'no work no pay. Thereupon an appeal was preferred by both the petitioner as well as the Bank before the Registrar and by order dated 4-7-1980 (Annexure-10) the Joint Registrar came to the conclusion that the resolution dated 4-8-1973 retiring the petitioner was contrary to the principles of natural justice and the same was quashed. The petitioner was also awarded all the benefits of services and the appeal preferred by the bank wcs dismissed. Against this order the Bank preferred a second appeal before the Board of Revenue and the order thereon is Annexure-XI. ( 4 ) SHRI Sethi, learned counsel appearing for the petitioner, has assailed the Board's order on the following grounds : (i) that the respondent-Bank has no power to review ; (ii) that the resolution dated 4-8-1973 (Annexure-III), retiring the petitioner was passed in violation of the principles of natural justice ; and (iii) the Board of Revenue has not assigned any reasons for its conclusions. ( 5 ) SHRI Nimgaonkar, learned counsel appearing for the respondent-bank on the other hand has challenged the maintainability of this petition on the ground that the rules under which the petitioner seeks to enforce his rights are not statutory rules and secondly, the respondent-Bank even in absence of a power of review is competent to retire, remove or dismiss its employees in view of the service conditions laid down by the Bank. The matter essentially becomes contractual in nature. ( 6 ) AS regards maintainability of this petition, it is not necessary to go into this question, as it is essentially the order passed by the Board of revenue regarding the petitioner's retirement, which has been challenged before this Court. The matter essentially becomes contractual in nature. ( 6 ) AS regards maintainability of this petition, it is not necessary to go into this question, as it is essentially the order passed by the Board of revenue regarding the petitioner's retirement, which has been challenged before this Court. Needless to add that under Article 226 of the Constitution of India, this Court has undoubtedly the power to go into the merits of any judgment or order passed by the Board of Revenue. Therefore, the objection raised by the learned counsel for the respondents has no force. ( 7 ) AS regards the question of violation of the principles of natural justice, it is not the respondents' case that no opportunity of hearing was afforded to the petitioner before passing the impugned order, Annexure-IV, which has assumed significance and importance particularly in view of the earlier resolution (Annexure-II) of the Bank deciding not to retire the petitioner. Learned counsel for the respondents has placed reliance on a decision of this Court in Krishna Chandra Gupta v. Registrar, Co-operative Societies [ air 1963 MP 298 ] and contended that the service of an employee of the bank is at pleasure. This authority, to my mind, is not applicable to the present case. It is distinguishable on facts, inasmuch as the dismissal in the case referred to above was found to be in accordance with the Bank's rules, while the same is under challenge in this case. Shri Sethi, appearing fer the petitioner, has contended that on coming into force of the new rules in 1965 the old rules were repealed. The Respondent-Bank in its return has not controverted the same, but craved for its true construction. Rule 21 of the old Rules has been filed as Annexure-I to the petition and Annexure R/l by the Respondent-Bank. It reads thus : it appears from the order Annexure-X, that the petitioner has opted for the old rules, for which an option has in fact been given under Rule 50 of the rules, framed by the Registrar. Rule 50 reads thus :"50. Repeal and Savings. It reads thus : it appears from the order Annexure-X, that the petitioner has opted for the old rules, for which an option has in fact been given under Rule 50 of the rules, framed by the Registrar. Rule 50 reads thus :"50. Repeal and Savings. (1) All other rules corresponding to these rules in force in any Bank immediately before commencing of these sules are hereby repealed : provided that anything done or any action taken under any of the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules. Further provided that the old employees shall have the option to opt for the new or old rules. "( 8 ) READING both the rules together and the option exercised by the petitioner and keeping in view the option exercised by the petitioner, the question that arises for consideration is whether it was open to the Bank to re-consider the question of retirement and arrive at a different conclusion. The petitioner's contention is that no such power is conferred by the old rules framed by the Bank and it has been conceded that no such power of review is provided for in the rules framed by the Bank. In this view of the matter and coupled with the fact that no opportunity of hearing was given to the petitioner while taking the subsequent decision about his retirement, the resolution dated 4-8-1973 (Annexure-III) and the order passed thereon loose their legal sanctity and validity. In order to judge the competence of a body it is essential that the source of authority must be referable to some provision of law or rules framed therein. No such source has either been referred to in the return or pointed out during the course of arguments. It is thus clear that the sub-sequent order retiring the petitioner is one lacking in authority and olso violating the principles of natural justice. The case relied upon by the learned counsel relates to misconduct and misbehaviour on the basis of which a resolution dismissing the petitioner was passed. The order had its source in the bye-law 36, referred to in that decision ; whereas no such source of authority for review of an earlier decision has been pointed out by the respondents either in the rules or under the Act. Relying on Co-operative central Bank Ltd. v. Addl. The order had its source in the bye-law 36, referred to in that decision ; whereas no such source of authority for review of an earlier decision has been pointed out by the respondents either in the rules or under the Act. Relying on Co-operative central Bank Ltd. v. Addl. Industrial Tribunal Hyderabad [ air 1970 SC 245 ], it is submitted on behalf of the respondents that the Bank employees rules are not statutory in nature and, therefore, cannot be enforced in a Court of law. ( 9 ) RELYING on Jaiprakash Mudaliar v. A. C. Chaubcy [ 1975 JLJ 93 ], learned counsel for the respondent. Bank submits that the petitioner having accepted to abide by the conditions of service as provided for under the rules framed by the Bank, it results in a contract and in such cases the employer can teminate the contract of service at any time and for any reason and no specific information of contract of service can be enforced. This proposition of law is not disputed. The real dispute is with regard to the vesting of power of review and not the power to terminate the contract. Therefore, the case relied upon does not help the respondents. ( 10 ) THE other authoriy relied upon by the respondents is Shankar Rao v. State of M. P. [1981 JLJ S. N 15]. The facts of this case are distinguishable. The question involved there was the competency of the authority passing the order of compulsory retirement and that the order of compulsory retirement was contrary to the provisions of Reg. 228 of the M. P. Police regulations, which prescribes a departmental enquiry. The Court in that case, however, came to the conclusion that the compulsory retirement was not visited as a penalty and, therefore, there was no need of holding finy enquiry. These authorities do not touch the real controversy involved in the present petition. ( 11 ) IT was next contended by the Respondent-Bank that the Bank service Rules are not statutory in nature. Therefore, they cannot be enforced by a Court of law. Admittedly, the service rules have been framed by the bank and subsequently by the Registrar under Section 55 (1) of the Act and the apparent purpose being to safeguard the service conditions of the employees. Therefore, they cannot be enforced by a Court of law. Admittedly, the service rules have been framed by the bank and subsequently by the Registrar under Section 55 (1) of the Act and the apparent purpose being to safeguard the service conditions of the employees. The services are to be entertained or terminated and/or terminated or dispensed with in accordance with the rules framed for the purpose. No doubt such guide-lines or rules cannot create any justiciable or any enforceable rights, but this case itself has come up for consideration of this Court in gwalior DistrictCo-operative Bank Ltd. v. Ramesh Chandra Mangal and others [1979 M. P. L. J. 6311. It was also a case where a Bank employee, who had over-stayed his leave, was removed from service and the removal order having undergone the procedural remedies available at different stages was a question under consideration of a petition preferred by the Bank. In the present case under the rule no authority has either been claimed or averred in favour of the Bank enabling it to review its earlier orders. On comparative reading of Annexure-II, the resolution rejecting the proposal to retire the petitioner, it appears that it was rejected on 30-3-1972 by the Bank. However, on a subsequent meeting held on 4-8-1973 another resolution retiring the petitioner was adopted, vide Annexure-III. Having once rejected the proposal of such retirement, the learned counsel for the respondents on being pointedly asked was at pains to point out to any such source of authority which empowers the Bank to review its earlier order. Once the proposal was rejected, in absence of any rule or legal authority, it could not have been reviewed or altered. In absence of such a power of review the resultant action is also wholly vitiated and is non est in the eye of law. It was in similar circumstances where the order was treated to bs non est that this Court upheld the order of re-instatement and dismissed the Bank's petition, in the case referred to above. This very cuse came up for consideration before the supreme Court in Gwalior District Co-operative Central Bank Ltd. v. Ramesh chandra Mangal [1984 J. L. J. 682]. It was in similar circumstances where the order was treated to bs non est that this Court upheld the order of re-instatement and dismissed the Bank's petition, in the case referred to above. This very cuse came up for consideration before the supreme Court in Gwalior District Co-operative Central Bank Ltd. v. Ramesh chandra Mangal [1984 J. L. J. 682]. Although in a different context the supreme Court also held that where an act or an order of dismissal is passed by a person or body, which inherently lacks in authority such order has no existence in the eye of law. In the instant case the question is not one of right to dismiss, remove or retire an employee, but the basic question is the right to review an earlier resolution or order, which has not been pointed out by the learned counsel appearing for the respondents. In this view of the matter the order (Annexure-VI) dated 6-8-1973, and the order passed by the Board of revenue on 6-5-1982 (Annexure-XI) are non est and are hereby quashed. Thus, there being inherent lack of authority, the resultant action cannot be supported in law. This petition, therefore, within the narrow ambit as indicated by the supreme Court in the case of Gwalior District Co-operative Bank Ltd. v. Ramesh Chandra Mangal, [1979 M. P. L. J. 631 and 1984 J. L. J. 682 (SC)] is entertainable and is in fact entertained within the scope referred to therein. ( 12 ) FOR the foregoing reasons this petition succeeds and is allowed with costs. Counsel's fee Rs. 100/- if certified. The outstanding amount of the security deposit, after verification, be refunded to the petitioner. .