Biswajit Dev Roy v. Indian Overseas Bank — 1985 DIGILAW 164 (CAL)

JUDGMENT 1. IN this writ petition, the petitioner who was an employee of Indian Overseas Bank, challenged the legality of the order of termination of the petitioner's service made allegedly in accordance with Clause 4 of the letter of appointment. 2. THE case of the petitioner is that the petitioner was appointed as a Clerk Shroff by the order dated 6th July, 1984 in the Lans down Market Branch of the Indian Overseas Bank on the results of a competitive examination held by the Banking service Recruitment. Board (Eastern Group), Calcutta and that the petitioner joined in service on 18th July, 1984. The clause 4 of the letter of appointment which was issued on 6th July, 1984, provided that "your services are liable to be terminated if your work and conduct are found unsatisfactory even before the expiry of the probation period but with one month's pay and allowances in lieu of notice". The petitioner states that within a week or so of his joining, the petitioner was pleaded, though raw recruit, at the receiving cash counter and a shortage of Rs. 2300/- was detected in the currency sheet of the bank situated at Strand Road Branch of the bank on 13th September and 14th September, 1984 and that the petitioner's initials were alleged to have been discovered on the note slips attached to five bundles. It was also alleged that the practice in the bank is that after the banking hours receiving cashier and the paying cashier hand-over the cash to the Chief Cashier after making bundles of hundred rupee notes. On each such bundle slips signed by receiving cashier and paying cashier are attached. In the second stage, the Chief Cashier of the one part and the Accountant/manager of the other part keep the cash in the vault in the branch under their joint custody, each of whom has a key both of which being used simultaneously can open the vault. Further it was alleged that according to the books of instruction, the Manager of Accountant was under a duty bound to count the cash before putting it into the vault. Further it was alleged that according to the books of instruction, the Manager of Accountant was under a duty bound to count the cash before putting it into the vault. It was also alleged that in the third stage, it is mandatory provision in the cash handling issued by the bank that the moment tire amount exceeds the stipulated limit of the vault, the Manager is liable to shift the excess amount, which is situated at Strand Road branch and that the petitioner is in no way involved in such shiftmen and as such the petitioner had no knowledge as to when or by whom the execs amount was shifted. The money in the chest at the Strand Road was also under the custody of some responsible officer. It was further alleged that the petitioner was held responsible for the aforesaid shortage without holding any enquiry and/or giving any opportunity to the petitioner just because the petitioner's initials were found on the bundles which disclose shortage and the Branch Manager prevailed upon the petitioner to write two letters addressed to the Branch Manager admitting that the petitioner was responsible for the total shortage of Rs. 2300/- promising that if the petitioner did so, no action, would be taken against the petitioner. According to the petitioner, the petitioner was also asked to make good the challenged shortage and as a matter of fact, the petitioner who was a raw recruiting good faith accepted such suggestion and made good the shortage and signed two letters as dictated by the Manager. It was further alleged that immediately after that incident, the petitioner was served with a letter: under the signature of the regional Manager, Indian Overseas Bank by which the petitioner's service was terminated in terms of Clause 4 of the letter of appointment as mentioned above at the close of business on 7th January, 1985. Mr. Arun Prakash Chatterjee, learned Senior Standing Counsel appearing on behalf of the petitioner, contended that the petitioner was not responsible for the said shortage. But the petitioner who was a new and raw recruit, in order to save his service made good the loss and signed in the letters at the dicates of the Branch Manager concerned. Mr. Mr. Arun Prakash Chatterjee, learned Senior Standing Counsel appearing on behalf of the petitioner, contended that the petitioner was not responsible for the said shortage. But the petitioner who was a new and raw recruit, in order to save his service made good the loss and signed in the letters at the dicates of the Branch Manager concerned. Mr. Chatterjee further contended that before the expiry of the probationary period, the service of the petitioner could not be terminated in the manner it has been done and in support of his contention mr. Chatterjee relied on the decision of the Supreme Court of India in the ease of Management of the Express Newspaper (Private) Ltd. v. Presiding Officer, Labour Court, Madurai reported in AIR 1964 SC 80 6 wherein it was held by the Supreme court at paragraph 12 80 7 that it appears clear to us that without anything more an appointment of promotion for 6 months gives the employer no right to terminate the service of an employee before 6 months had expired except on the ground of misconduct or other sufficient reasons in which case even the service of a permanent employee would be terminated. At the end of 6 months period, the employer can either confirm him or terminate his service because his service is found unsatisfactory. If no action is taken by the employer either by 'way of confirmation or by way of termination, the employee continues to be in the service as probationer" Mr. Chatterjee also relied or, the case of Supreme Court of India in Chartered Bank, Bombay v. Chartered Bank Employees Union reported in AIR 1960 SC 919 at paragraph 8 page 922 that further it was held that where a termination of service is capricious or arbitrary or unnecessary rash on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice. We are of opinion that this correctly lays down the scope of the power of the Tribunal to interfere where service is terminated simpliciter under provision of, a contract or standing orders or by some way like the Bank Award. We are of opinion that this correctly lays down the scope of the power of the Tribunal to interfere where service is terminated simpliciter under provision of, a contract or standing orders or by some way like the Bank Award. In order to judge this, the Tribunal will have to go info all the circumstances which lead the termination simpliciter and an employer cannot say that it is not bound to disclose the circumstances before the Tribunal. The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the forms may be merely a camouflage for an order of dismissal for misconduct. It is therefore always open to Tribunal to go behind the form and look at the substance and it comes to the conclusion, for example that though in form the order amounts to termination simpliciter if in reality Claras the dismissal for misconduct it will be open to set aside as colourable exercise of power. 3. IN this connection reference may also be made to the judgment of the Supreme Court in Samsher Singh v. The State of punjab reported in AIR 1977 SC 2 192 wherein it was held by the Supreme Court at paragraph 80 page 2208 that even an innocuously orbed order termination the service may in the facts and circumstances of the case establish that an enquiry into the allegation of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case, the simpliciter of the form of the order will not give any sancity. It was further held that the substance of the order and not the form would be decisive. 4. THE respondents filed affidavit in opposition and contended that, the petitioner at his own voluntarily made a good of shortage and admitted his lapse in writing and it was further stated that in the circumstances of the case there was no obligation of the bank to hold any enquiry. In paragraph 8 of the affidavit in opposition it was stated by the respondents that "in any event this impugned order of termination was passed as the service and conduct of the petitioner was not satisfactory and not for any reason which attaches stigma to the petitioner. In paragraph 8 of the affidavit in opposition it was stated by the respondents that "in any event this impugned order of termination was passed as the service and conduct of the petitioner was not satisfactory and not for any reason which attaches stigma to the petitioner. So it is an admitted position that because of the said alleged shortage, the petitioner's service was terminated invoking the provision of Clause 4 of the letters of appointment. Dr. Mukherjee, learned counsel appearing on behalf of the respondents submitted that the petitioner cannot make any complaint inasmuch as the petitioner had admitted his guilt in writing and that. Clause 4 of the terns of appointment as embodied in the letters of appointment, the petitioner's service was terminated. Dr. Mukherjee also contended that the petitioner's service was not confirmed and that the respondents have right to terminate his service during the probationary period on the basis of clause 4 of the terms and conditions of appointment in view of the admission made by the bank in the affidavit in opposition that as the petitioner had admitted the lapse, there was no obligation on the part of the bank to hold any enquiry in the matter. 5. CONSIDERING the facts and circumstances of the case, it appears that the stand taken by the respondents in this matter is not correct in view of the fact that in the instant, ease the petitioner's service was terminated on the ground of the said alleged lapse on the part of the petitioner and that, the petitioner's service was terminated on that ground alone The respondents held the petitioner guilty of the same and terminated the service without holding any enquiry and without giving any opportunity of being heard. In this connection a decision of the Supreme Court of India in the case of Board of High school and Intermediate Education,, U. P. v. Kumari Chitra Srivastava reported in AIR 1970 SC page 1039 may be referred wherein in paragraph 8 at page 1040 it; was held by the Supreme Court that "the learned counsel for the appellant, Mr. C. B. Agarwalla contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if Board had served a show cause notice on the petitioner. C. B. Agarwalla contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if Board had served a show cause notice on the petitioner. He says that in view of these circumstances, it was riot necessary for the board to have issued a show cause notice. We are unable to accept this contention where a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's suggestion that the person to be penalised has no defence but on the nature of order proposed to be passed". It was further observed in paragraph 9 of the said judgment that "principles of natural justice are to some mind burden some. But this price, a small price indeed, has to be paid if we desire a society governed 'by the rule of law in another case, viz. S. L. Kapoor v. Jagmohan reported in AIR 1981 SC 136 , it was held by the Supreme Court that merely because facts are admitted it does not follow that material justice need not be observed. 6. SO in view of the aforesaid decision of the Supreme Court, even if the contention of Dr. Mukherjee is accepted that the petitioner had' no defence, even in that case also no action could have been taken against the petitioner terminating the service of the petitioner without giving the petitioner an opportunity of hearing. From the facts and circumstances of the case, it appears that the order of termination though innocuously worded, was passed on the allegation of misconduct involving stigma in violation of the principles of natural justice. I am of the view that the petitioner's service could not have been terminated without 'giving the petitioner an opportunity of hearing before holding that the petitioner was guilty of the said shortage in cash and that the said order of termination was passed by way of punishment in violation of the principles of natural justice. In the result, the writ petition succeeds. The rule as accordingly made absolute. Let a writ in the nature of Certiorari do issue quashing the order of termination of the petitioner's service by the impugned notice which is annexure 'b' to the petition. In the result, the writ petition succeeds. The rule as accordingly made absolute. Let a writ in the nature of Certiorari do issue quashing the order of termination of the petitioner's service by the impugned notice which is annexure 'b' to the petition. Let a writ in the nature of Mandamus do issue commanding the respondents to forebear from giving effect or further effect to the said order of termination of service which is annexure 'b' to the petition. This order will not preclude the respondents from taking any other action under clause 4 of the terms and condition embodied in the letter of appointment or any other action that the respondents are entitled to have under the law. There will be no order as to costs. Rule made absolute.