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Allahabad High Court · body

2001 DIGILAW 586 (ALL)

SUDARSH AWASTHI v. BANK OF INDIA

2001-05-25

R.H.ZAIDI, R.P.NIGAM

body2001
R. H. ZAIDI, J. ( 1 ) BY means of this petition filed under article 226 of the Constitution of India, petitioner, who was holding the post of General manager of Bank of India, Lucknow, prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated april 12, 1999, whereby petitioner was deputed as a General Manager of Gramin Bank, farrukhabad, the order dated May 29, 1989 whereby the petitioner was advised to report to the Regional Manager, Farrukhabad, charge-sheet dated December 20, 1989, notice dated February 19, 1990 and the order dated june 17, 1991, passed by respondent No. 2 removing the petitioner from the aforesaid post. Prayers for a mandamus commanding the respondent Nos. 2 to 4 not to continue the disciplinary proceedings, to make payment of the arrears of salary from March, 1989, to take a decision on the resignation letter dated May 31, 1989 and to compensate the petitioner adequately have also been made. ( 2 ) THE relevant facts of the case giving rise to the present petition are that the petitioner joined the bank as a probationer in pursuance of appointment letter dated April 1, 1975. According to the terms and conditions of the appointment letter, the petitioner could be posted in India or outside India, where the bank has or might thereafter open offices or branches. After some time, due to his personal ability and sincerity to the job, petitioner was appointed as Manager of southern branch and was permitted to open a new branch at lucknow. Petitioner out of his sincerity achieved the business target for the whole year 1978. He was, therefore, posted as Manager of mahanagar branch at Lucknow. Petitioner got the Mahanagar branch upgraded as the largest branch in Uttar Pradesh. Petitioner had unblemished record of service and was always serious and sincere to his job. He was, therefore, posted as Development Manager (Marketing and Public Relations) and also performed his duties to the best of his efficiency at Kumbh Mela in the year 1988. Unfortunately, petitioner was manhandled by the union leaders and his henchmen on february 2, 1989. In the said incident, he also suffered bodily injuries. About the said incident, petitioner made a complaint to the respondent No. 2. Respondent No. 2 advised the petitioner to submit his leave application. Unfortunately, petitioner was manhandled by the union leaders and his henchmen on february 2, 1989. In the said incident, he also suffered bodily injuries. About the said incident, petitioner made a complaint to the respondent No. 2. Respondent No. 2 advised the petitioner to submit his leave application. On the advice received from respondent No. 2, petitioner informed him that he will not come to the office to avoid any untoward further incident. Inspite of written complaint made by the petitioner, no action was taken by the respondent No. 2 against the union leaders responsible for the aforesaid incident. Consequently, the petitioner had to send a representation to the respondent No. 2 informing him that petitioner was not attending the office as per advice given by respondent no. 2 and requested him to provide security and working conditions and to take action against the undisciplined elements. Petitioner also made a demand for payment of salary for the month of March, 1989, from respondent no. 2. It was on April 8, 1989, that the petitioner received a letter dated March 17, 1989 from respondent No, 2 refusing to pay the salary to the petitioner and asked him to report for duties and to facilitate the investigation. On receipt of the aforesaid letter, petitioner replied to respondent No. 2 that he was not attending the office on this advice. He was, however, willing to attend the office if normal conditions are restored. It was also intimated by him that he was performing his job without entering the premises of the office. It was on April 16, 1989 that the respondent No. 2 without seeking consent of the petitioner in writing or otherwise decided to depute the petitioner as General manager, Farrukhabad Gramin Bank. He also passed an order to that effect, which was never served upon the petitioner. After passing the aforesaid order, respondent No. 2 relieved the petitioner from the Zonal Office and asked the petitioner to report to the Chairman, farrukhabad Gramin Bank, on May 29, 1989. The said letter was delivered to the petitioner in June, 1989. On receipt of the aforesaid letter, the petitioner in continuation to his earlier representation dated March 15, 1989 to the respondent No. 1 through respondent No. 2 sent a detailed representation against the insult and humiliation he faces at the hands of respondent No. 2. The said letter was delivered to the petitioner in June, 1989. On receipt of the aforesaid letter, the petitioner in continuation to his earlier representation dated March 15, 1989 to the respondent No. 1 through respondent No. 2 sent a detailed representation against the insult and humiliation he faces at the hands of respondent No. 2. ( 3 ) IN the aforesaid circumstances, the petitioner had no option but to serve notice to resign from the bank, requesting for being informed of the date on which the petitioner would be relieved from the services of the bank. It was on June 4, 1989, that the petitioner sent a memorandum to respondent No. 2 categorically stating that inspite of repeated assertions made by the petitioner that he was not coming to office to discharge his duties with specific consent of respondent No. 2 and as such petitioner could not be treated as unauthorisedly absent more so when respondent No. 2 had not denied the said fact. The petitioner further requested to respondent no. 2 to withdraw the order dated April 12, 1996, as the same was wholly illegal and without jurisdiction and contrary to the Rules. Simultaneously, the petitioner also requested for payment of salary, which was withheld from March, 1989, clarifying that even if the higher authorities to whom the petitioner had represented but not agreed with the interpretation of the consent of respondent No. 2 regarding absence of petitioner since february 3, 1989 could not be adjusted towards his accumulated privileged leave (earned leave)sufficient balance of which was due to the petitioners credit. It was on June 15, 1989 that petitioner met respondent No. 3 and submitted his letter to respondent No. 3 where the petitioner had again requested for release of his withheld salary as the petitioner needed money for his treatment. The petitioner also explained that he could not be sent to Farrukhabad gramin Bank on deputation without his consent. In the meanwhile, it was on December 20, 1989 that major penalty proceedings were initiated against the petitioner and a charge-sheet was issued against him, which was served upon him on December 20, 1989. It was on January 24, 1990 that decision was taken by the authorities to take disciplinary proceedings, which were never taken. In the meanwhile, it was on December 20, 1989 that major penalty proceedings were initiated against the petitioner and a charge-sheet was issued against him, which was served upon him on December 20, 1989. It was on January 24, 1990 that decision was taken by the authorities to take disciplinary proceedings, which were never taken. On receipt of the charge-sheet, the petitioner prayed for extension of time to file his replies the relevant papers were not supplied to him and legal advice had to be sought. It was on february 19, 1990 that a reply of the charge-sheet was submitted by the petitioner, which was served upon the respondent No. 2 on February 20, 1990. Thereafter, petitioner was asked to appear before the inquiry committee, but the disciplinary proceedings were never initiated. ( 4 ) UNDER the facts and circumstances, the petitioner had to file a writ petition in the High court at Lucknow Bench. The said writ petition was disposed of with the direction to the respondents to dispose of the representations dated June 4, 1989, April 7, 1989, April 10, 1989 and May 13, 1989 within a fortnight. Under the facts and circumstances, the petitioner was legally entitled to his salary as his services were never either terminated or suspended. The respondents under the orders passed by this Court were bound to dispose of the representations filed by the petitioner, which were never disposed of. It was on october 23, 1990 that the High Court passed another order asking the respondents to show cause as to why earlier order dated March 10, 1990 was not complied with and why salary of the petitioner was not paid by complying with the orders passed by this Court. The respondent no. 3 clandestinely submitted his report. Petitioner was also asked to submit his comments. The petitioner through his advocate submitted his reply on February 19, 1990, which was never considered by respondent No. 4. The orders passed by the High Court were never obeyed. The salary of the petitioner was never paid. The inquiry was not conducted in accordance with the Rules and the petitioner was not afforded an opportunity of hearing in accordance with law and in violation of principles of natural justice. The orders passed by the High Court were never obeyed. The salary of the petitioner was never paid. The inquiry was not conducted in accordance with the Rules and the petitioner was not afforded an opportunity of hearing in accordance with law and in violation of principles of natural justice. However, the respondent No. 2 passed the orders dated June 17, 1991, removing the petitioner from service wholly illegally mainly on the ground that petitioner did not obey the order of deputation. ( 5 ) THE validity of the said order of removal was also challenged by the petitioner by filing an amendment application, which was allowed vide order dated May 8, 1992. The said order was incorporated in the writ petition. ( 6 ) ACCORDING to the respondents, the notice for payment of salary was not in accordance with the Regulation No. 20 (2) of the Bank of India (Officers Service)regulations, 1979. The petitioner, therefore, had no option but to approach this Court and file the present petition for the above mentioned reliefs. ( 7 ) ON behalf of the contesting respondents, counter-affidavit has been filed, in which the basic facts of the case have not been denied. It has, however, been asserted that the Gramin Bank, Farrukhabad, was a regional Rural Bank sponsored by the Bank of india. It has also been asserted that under the regulation, there was no provision for obtaining prior consent before passing an order of transfer on deputation to a sponsored bank like Farrukhabad Gramin Bank. It has also been stated that the said Gramin Bank was established under a separate statute and the services of the employees of the said bank are governed by a separate set of Rules, therefore, the employees on deputation were also governed by the Service Regulations of the sponsoring bank, i. e. . Bank of India. It is also relevant to state that the Inquiry Officer without conducting any inquiry, appears to have made the recommendation for removal of the petitioner from the post held by him without considering the reply submitted by the petitioner on the ground that the reply of the petitioner was not received within the time prescribed under the Rules. It is stated that the petitioner was removed from the said post on june 17, 1991. It is stated that the petitioner was removed from the said post on june 17, 1991. ( 8 ) LEARNED counsel for the petitioner vehemently urged that the respondents have acted wholly illegally and arbitrarily in abruptly stopping the payment of the salary of the petitioner. They have also passed the order of removal in violation of the principles of natural justice against the petitioner. It was also urged by learned counsel for the petitioner that the punishment awarded to the petitioner was not commensurate to the charge levelled against him. The said order of removal from service, passed against the petitioner was, therefore, liable to be quashed. It was also urged that the Zonal Manager had no jurisdiction to pass the orders against the petitioner, as he was not the appointing authority. The appointing authority of the petitioner was the General Manager of the bank. The thrust of the argument of the learned counsel for the petitioner was that the petitioner could not be deputed to another bank, which has got separate set of service Rules and is a separate and distinct entity without express consent of the petitioner. ( 9 ) ON the other hand, learned counsel for the contesting respondents, Mr. P. K. Khare, advocate, submitted that it was not necessary for the bank to obtain the consent of the petitioner before deputing him on the post of general Manager, Gramin Bank, Farrukhabad, which is one of the sponsored Banks of the Bank of India. It has been submitted that legally, newly created corporate bodies are to be sponsored by nationalised banks, which, in turn, has been conferred with the statutory obligation to the control of the management of the Regional Rural Bank. Reliance is being placed by the learned counsel for the respondents upon Section 17 of the Regional rural Banks Act. It was also urged that the consent of the employee of the bank for transferring on deputation to another bank was legally not necessary. According to the learned counsel for the respondents, the order of removal from service passed against the petitioner was quite legal. The writ petition was, therefore, liable to be dismissed. ( 10 ) WE have considered the submissions made by learned counsel for the parties and also perused the record. According to the learned counsel for the respondents, the order of removal from service passed against the petitioner was quite legal. The writ petition was, therefore, liable to be dismissed. ( 10 ) WE have considered the submissions made by learned counsel for the parties and also perused the record. ( 11 ) IT was not disputed by the respondents that before passing the impugned order of deputation against the petitioner to Gramin bank, Farrukhabad, consent of the petitioner, express or implied, was not taken from him. According to the learned counsel for the respondents, the order of deputation could be passed and any employee of the Bank of India could be transferred or deputed at any sponsored bank without taking his consent. Therefore, we will have to see as to whether before transferring any employee of the bank and deputing him at any other bank, was it necessary to obtain his consent? According to him, the petitioner was transferred and deputed at Farrukhabad under the terms and conditions of appointment letter issued to the petitioner. According to him, the Service Regulations of the Bank of India were irrelevant inasmuch as after transfer the Service Regulations of gramin Bank would apply. The learned counsel for the respondents also attempted to justify the punishment of removal of the petitioner from the service on the ground, that the petitioner remained absent from duty, which was. nothing but unauthorised absence from February 4, 1989 to May 29, 1989, i. e. . the date when he was relieved to join on the deputed post. The letter of appointment of the petitioner has been filed as Annexure-5 to the writ petition, which is quoted below:"with reference to the recent interview you had with our Recruitment Board, we are pleased to inform you that subject to your being found medically fit, it has been decided to offer you the post of probationary Officer in the bank on the following terms and conditions: (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) your appointment will be on one years probation, at the end of which, subject to your satisfactory record and subject to your antecedents being found satisfactory, you will be confirmed in the service of the bank; (c) you may at any time and from time to time, at the banks discretion, be posted in india or outside India where the bank has or might hereafter open offices or branches; (d) your services are liable to be terminated at the sole discretion of the bank before the expiry of the Probationary Period, without any reason being assigned but with one months notice, or on payment of a months pay and allowances in lieu of such notice; (e ). . . . . . . . . . . . . . . . (f ). . . . . . . . . . . . . . . . (g ). . . . . . . . . . . . . . . . (h ). . . . . . . . . . . . . . . . (I) other terms and conditions of service laid down by the bank from time to time for its officers will apply to you. (Only relevant quoted) ( 12 ) A reading of the aforesaid letter clearly reveals that there was no condition that the petitioner could be transferred from the bank of India to another bank without his consent. Therefore, the submission made by the learned counsel of the respondents that the impugned order of transfer on deputation was passed under the terms and conditions of the appointment letter cannot be accepted. On the other hand, it was provided that the petitioner could be transferred to any of its branches or offices but not to any other bank. The controversy as to whether an employee of a particular establishment can be transferred to another establishment came to be considered before the Apex Court of the country in umapati Choudhary v. State of Bihar and others, AIR 1999 SC 1948 : 1999 (4) SCC 659 . In the said decision, the Constitution Bench of the said Court held that an employee cannot be sent on deputation without his consent. It was observed as under:"8. In the said decision, the Constitution Bench of the said Court held that an employee cannot be sent on deputation without his consent. It was observed as under:"8. Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority ). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. (Emphasis supplied) " ( 13 ) A learned single Judge of the Calcutta high Court also took the same view as taken by the Apex Court in the above noted case in dr. Ashok Kumar Roy v. United Bank of India, 1990 (2) CLJ 46 , under similar facts and circumstances as of the present case in paragraphs 14 and 16 of the judgment, it was observed as under:"14. In that view of the matter, when without obtaining option from the petitioner or without his consent he cannot be posted as Chairman of Gramin Bank even though the United Bank can post an officer of the bank as Chairman of the Gramin Bank under Section 11 (1) of the Regional Rural banks Act, 1976, on taking approval of the n. A. B. A. R. D. yet if the concerned officer did not consent to such posting the respondents cannot force him to join that post when he is not willing to accept that post. 16. But that does not mean that the bank is competent to post an officer outside the bank on deputation without his consent. If the officer consents to such deputation then he will be entitled to such deputation allowance. But that is a matter of option of the officer. " after making abovenoted observations, the order of posting No. 230 of 1989 (Annexure-D)and the release order (Annexure-G) to the writ petition were quashed by the Court. If the officer consents to such deputation then he will be entitled to such deputation allowance. But that is a matter of option of the officer. " after making abovenoted observations, the order of posting No. 230 of 1989 (Annexure-D)and the release order (Annexure-G) to the writ petition were quashed by the Court. ( 14 ) THE same view, as was taken in umapati Choudharys case (supra), was taken by the Apex Court in State of Punjab v. Inder singh, AIR 1998 SC 7 : 1997 (8) SCC 372 where also their Lordships of the Supreme court have held that deputation without the consent of the employee is not permissible. In paragraph 18 of the said decision it has been observed as follows:"18. The concept of deputation is well understood in service law and has a recognised meaning. "deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head constables as the case may be. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head constables as the case may be. " ( 15 ) RELIANCE can also be placed upon a decision of the Apex Court in Jawaharlal nehru University v. K. S. Jawatkar, AIR 1987 sc 1577 : 1989 Supp (1) SCC 679 : 1989-II-LLJ-586 referred to by the learned counsel for the petitioner is on a somewhat stronger footing, in so far as the transfer of an employee on deputation is concerned. In that case, the Centre for Post Graduate Studies, imphal, was itself transferred to Manipur university. The claim that on the transfer of the centre, the services of the employees stood automatically transferred was repelled; and it was categorically held that the employment could not be transferred without the consent of the employee, notwithstanding any statutory provision to that effect, whether in Manipur university Act or elsewhere. (Emphasis supplied)from the above noted decision of the apex Court it is abundantly clear that sending on deputation is not permissible without the consent of the employee concerned. ( 16 ) SO far as the question of alleged unauthorised absence of the petitioner from duty is concerned, it is apparent that it was consequential the petitioner could not be deputed to Gramin Bank, Farrukhabad therefore, he was not supposed to attend his duties at the said place. The said absence therefore, cannot be said to be unauthorised absence. The contesting respondents are themselves responsible for the absence of the petitioner from duty. Therefore, on the said charge, the petitioner cannot be penalised. Further, the petitioner had sufficient earned leave to his credit and absence of the petitioner from duty could be adjusted in the said earned leave. Further, the ground of absence from duty is not commensurate. ( 17 ) THE case of Dr. Ashok Kumar Roy (supra), referred to by the learned counsel for the petitioner, applied with all its rigours to the facts and circumstances of the present case. As discussed above, the said case pertains to deputation of an officer of United Bank of India to a Gramin Bank sponsored by it. ( 17 ) THE case of Dr. Ashok Kumar Roy (supra), referred to by the learned counsel for the petitioner, applied with all its rigours to the facts and circumstances of the present case. As discussed above, the said case pertains to deputation of an officer of United Bank of India to a Gramin Bank sponsored by it. As the consent of the employee was not taken, the deputation was held to be bad. ( 18 ) THE next case cited on behalf of the petitioner, i. e. , P. K. . Bidi Factory v. O. C. Thenge, AIR 1970 SC 823 , refers to various earlier decisions and cites with the approval of the decision of House of Lords which lays down the provision in law as being clear that except in case of a statutory provision to the contrary, an employee cannot be transferred to a third party without his consent. As indicated above the learned counsel for the respondent could not place before this Court any statutory provision or binding authority enabling the bank to send the petitioner on deputation. ( 19 ) OTHER decisions have also been cited by the learned counsel for the petitioner in support of his case but we do not find it necessary to refer to them because the law laid down by the Honble Supreme Court referred to above is quite clear, that is, no person can be sent on deputation without his consent. The submissions of the learned counsel for the petitioner, therefore, have force and are liable to be accepted. ( 20 ) IN so far as the sustaining of the impugned order of removal on the charge of unauthorised absence is concerned, the learned counsel for the petitioner submitted that the said charge cannot be sustained without a proper and fair inquiry. He also submitted that on the face of it the charge is not made out as the earned leave of the petitioner in about 14 years of service is much more than the alleged period of less than 4 months so-called unauthorised absence, though not proved. Further, the ground of absence from duty is not commensurate to the major penalty of removal from service. ( 21 ) THE inquiry has also been assailed on several grounds such as the inquiry report being biased and non-reasoned, etc. Further, the ground of absence from duty is not commensurate to the major penalty of removal from service. ( 21 ) THE inquiry has also been assailed on several grounds such as the inquiry report being biased and non-reasoned, etc. We need not delve into the said questions in detail as the factual matrix amounts to non-compliance of the impugned order of transfer on deputation. We need only refer to the decision of the honble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. , air 1999 SC 1416 : 1999 (3) SCC 679 : 1999-I-LLJ-1094 referred to by the learned counsel for the petitioner, in which their lordships have held that denial of subsistence allowance is penal and shall vitiate the inquiry. It is an admitted fact that since March, 1989, the petitioner was not paid a Single penny for his subsistence despite earned leave due to him and despite requests having been made by the petitioner time and again to pay him the salary and adjust it against the earned leave due to him. On this ground alone, the inquiry is vitiated. ( 22 ) FURTHER, It is settled law that non-compliance of a non est order cannot entail any penal consequence. This proposition of law is very aptly demonstrated by a reading of the apex Court Judgment in the case of Dr. Ramesh Chandra Tyagi v. Union of India, 1994 (2) SCC 416 : 1994-II-LLJ-192 in which the following observations are worth reproducing at p. 195 of LLJ:". . . . . . . no further needs to be said as the appellant having been removed for not complying with the transfer order and it having been held that it was invalid and non est the order of dismissal fails utomatically. " ( 23 ) BEFORE we part with the judgment, we would like to note that there is no serious charge against the petitioner. On the contrary, he has an unblemished service record and no financial irregularity has been attributed on account of which any loss of confidence can be inferred. we, in fact, are of the view that the petitioner would be an asset to the bank and his removal from the service in a slip-shod manner does not commend to us. On the contrary, he has an unblemished service record and no financial irregularity has been attributed on account of which any loss of confidence can be inferred. we, in fact, are of the view that the petitioner would be an asset to the bank and his removal from the service in a slip-shod manner does not commend to us. An affidavit dated February 19, 2000 has been filed by the petitioner in which he has stated that he was not gainfully employed during the pendency of this writ petition. It is also submitted that had the bank accepted his resignation notice of which was tendered in May, 1989, the petitioner could well have joined any other service and on the basis of his experience and expertise, he could have landed himself in a more lucrative job. The youth and prime part of his life has been spent in litigation, for which he is entitled to compensation in addition to back wages. Learned counsel for the petitioner has referred to the decisions in J. N. Srivastava v. Union of india AIR 1999 SC 1571 : 1998 (9) SCC 559 :1999-I-LLJ-546; Daya Ram v. State of U. P. , 1987 (7) SCC 443; Dipti Prakash Banerjee v, satyendra Nath Bose, AIR 1999 SC 983 ; 1999 (3) SCC 60 : 1999-I-LLJ-1054 and State Bank of India v. T. J. Paul, AIR 1999 SC 1994 : 1999 (4) SCC 759 : 1999-II-LLJ-514, and admitted that in accordance with the said decisions, the petitioner is in any case entitled to full back wages and all consequential benefits of the employment. This fact could not be controverted by the learned counsel for the respondents. The law laid down by the supreme Court is binding on this Court and we accordingly hold that the petitioner is entitled for all consequential benefits including back wages. We, however, decline to grant any compensation or damages. ( 24 ) THE writpetition accordingly succeeds and is hereby allowed with costs. A writ in the nature of certiorari is issued quashing the orders dated April 12, 1989, May 29, 1989 and june 17, 1991 contained in Annexures-I-A, I and 17, to the writ petition passed by the opposite party No. 2. ( 24 ) THE writpetition accordingly succeeds and is hereby allowed with costs. A writ in the nature of certiorari is issued quashing the orders dated April 12, 1989, May 29, 1989 and june 17, 1991 contained in Annexures-I-A, I and 17, to the writ petition passed by the opposite party No. 2. The petitioner shall be entitled for all consequential benefits of employment including arrears of salary and promotion and shall be given posting forthwith after taking into account the notional promotions to which the petitioner is entitled in accordance with this judgment within two weeks from the date a certified copy of this order is communicated to the competent authority. .