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2011 DIGILAW 319 (GAU)

Manjushree Chakraborty (Majumder) v. Tripura Gramin Bank and Anr.

2011-04-07

B.K.SHARMA

body2011
1. Heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned counsel, appearing for the petitioner. Also heard Mr. K. Bhattacharjee learned counsel, appearing for the respondent-bank. 2. When the writ petition was filed about 11(eleven) years back, i.e., in 2000, the prayer in the writ petition was as follows : "It is, therefore, prayed that your lordship will be graciously pleased to : (a) admit this petition of the petitioner and call for records relevant to the subject-matter from the custody of the respondents; (b) issue writ directing the respondents and each of them to dispose of the appeal preferred under regulation 32 of the Tripura Gramin Bank (Staff) Services Regulation, 1980 read with the Tripura Gramin Bank (Staff) Amendment Regulation, 1982 after condoning the delay as per prayer of the petitioner expeditiously or within the time-frame as may be determined by this hon'ble court; and/or (c) pass such other or further order/orders and/or direction/directions as to your lordship deem fit and proper having regard to the facts and circumstances of the case. And for this act of kindness the humble petitioner shall, as in duty bound, ever pray." 3. By an application being CM Appln. No.336 of 2009, the petitioner made a prayer for amendment of the writ petition in the form of challenge to the impugned termination order dated 22.3.1999. If we go by the date of filing of the application, i.e., 26.10.2009, the challenge to the order of termination was more than after ten years. Be that as it may, the amendment was allowed by an order dated 30.10.2009, passed in the said Miscellaneous application. After the amendment, paragraphs 8(A), 10 and 11 were incorporated and in the prayer portion, prayer (b) was inserted, which are reproduced below : "8. (A) That since the respondent No.1 did not consider the petitioner as their Officer, they did not pass any order. 10. That the respondents and each of them be directed to set aside and quash the order dated 22.3.1999 (Annexure 5 to the writ petition) forthwith and no time. 11. That the respondents are required further to be directed to reinstate the petitioner retrospectively and with all service benefits including pecuniary benefits an account of pay and allowances, etc. 10. That the respondents and each of them be directed to set aside and quash the order dated 22.3.1999 (Annexure 5 to the writ petition) forthwith and no time. 11. That the respondents are required further to be directed to reinstate the petitioner retrospectively and with all service benefits including pecuniary benefits an account of pay and allowances, etc. (b) issue writ directing the respondents and each of them to set aside and/or quash the order dated 22.3.1999 (Annexure 5 to the writ petition) forthwith and also directing them or each them to reinstate the petitioner retrospectively with all service benefits including pecuniary benefits on account of pay and allowances etc. within such time as would stipulated by this hon'ble court." 4. The petitioner was appointed by the respondent-bank on probation for a period of 2(two) years with effect from her joining in service on 19.1.1983. Her period of probation was extended up to 18.1.1986. Thereafter, she was transferred from the Tripura Gramin Bank, Mohanpur Branch to its Dharmanagar Branch by an office order dated 23.9.1985. Admittedly, the petitioner did not carry out the transfer order rather withdrew an amount of Rs. 1,450 (rupees one thousand four hundred and fifty) as temporary advance from Mohanpur Branch. She kept on absenting from duties for more than 6(six) years and did not carry out the order of transfer. Situated, thus, her name was struck off from the Bank Roll, by an order dated 3.4.1991. Being aggrieved, she made a challenge to the said order by filing a writ petition being Civil Rule No.208 of 1991. The writ petition was disposed of by judgment and order dated 4.12.1998, interfering with the impugned order dated 3.4.1991 on the ground of violation of principles of natural justice and violation of the provisions of the Tripura Gramin Bank (Staff) Service Regulation. The operative part of the judgment is quoted below : "6. On that ground alone, the impugned order of termination can not be justified, and accordingly, the same is set aside and the petitioner will be reinstated in service though it will not preclude the bank from holding an enquiry or passing any appropriate order in accordance with law. On examination of all aspects of the matter, in the facts situation the petitioner would not be entitled for any back wages. On examination of all aspects of the matter, in the facts situation the petitioner would not be entitled for any back wages. If in the end there is no enquiry or the petitioner is exonerated, this period shall be computed towards seniority, pensionary and other benefits." 5. After the aforesaid judgment and order the bank issued the communication dated 18.1:1999 to the petitioner narrating the entire facts of her unauthorized absence. In the said communication it was stated that she was directed to appear before the Medical Board but she declined to appear before the same. The petitioner was asked to show cause within seven days as to why she should not be dismissed from service. 6. In response to the said notice the petitioner by an application dated 20.1.1999 intimated the bank that she would make reply after receiving the response to her said letter in which she had stated about her right of reinstatement in service pursuant to the aforesaid judgment and order. Thus, the plea of the petitioner was that since she was entitled to get reinstatement in service pursuant to the aforesaid judgment and order but the respondent-bank did not do so, she would make reply only on her reinstatement. 7. After the aforesaid development, the Chairman of the respondent-bank issued the Annexure 4 letter to the petitioner stating therein that her reply dated 20.1.1999 was not at all satisfactory. Thereafter the impugned order dated 22.3.1999 (Annexure 5) was issued dispensing with her services. 8. In the impugned order dated 22.3.1999 the fact of her long absence from duties pursuant to her transfer to Dharmanagar Branch has been stated. It has also been stated that she had defied the direction issued to her to appear before the Medical Board. It has also been stated that from the stand of the petitioner in the entire matter the unauthorized absence from duties was admitted position. Accordingly, by the said impugned order her service was dispensed with, with effect from the date of the order. 9. Being aggrieved by the said order the petitioner preferred an appeal before the Board of Directors, Tripura Gramih Bank furnishing her address in West Bengal. Be it stated here that there was delay in preferring the appeal. As per the requirement of Bank Regulations, the appeal was to be preferred within one month. 10. 9. Being aggrieved by the said order the petitioner preferred an appeal before the Board of Directors, Tripura Gramih Bank furnishing her address in West Bengal. Be it stated here that there was delay in preferring the appeal. As per the requirement of Bank Regulations, the appeal was to be preferred within one month. 10. When the appeal was not disposed of, the petitioner filed the writ petition on 21.6.2000 with a prayer for disposal of the appeal. The original prayer in the writ petition has been quoted above. More than nine years thereafter the petitioner prayed for amendment of the writ petition vide CM Appln. No.336 of 2009 and the prayer for amendment was allowed by an order dated 30.10.2009. In the amendment petition the petitioner made a challenge to the impugned order of termination from service dated 22.3.1999. 11. Mr. S. Talapatra, learned senior counsel appearing for the petitioner submits that on the face of the impugned order dated 22.3.1999, the same is not sustainable in law inasmuch as before terminating the service of the petitioner by the bank authority and for that matter the Disciplinary Authority of the bank did not take recourse to any departmental proceedings. He has also questioned the Annexure of the respondent-bank in disposing of the departmental appeal. 12. Mr. K. Bhattacharjee, learned counsel appearing for the respondent Bank, on the other hand, has raised the question of delay and laches on the part of the petitioner in making the challenge to the impugned order dated 22.3.1999. He submits that the amendment to the writ petition vide order dated 30.10.2009 passed in CM Appln. No.336 of 2009 cannot cloth the petitioner with the right to make a challenge to the impugned order after inordinate delay. He further submits that the fact of unauthorized absence of the petitioner being an admitted position, the bank, a public institution, discharging public duties, was within its competence and jurisdiction to dispense with the services of the petitioner. 13. I have considered the rival submissions made by the learned counsel for the parties and have also considered the entire materials on record. 14. The fact that the petitioner, after her transfer to Dharmanagar Branch, did not join there, is an admitted position. She was appointed in the bank service on 19.1.1983, and her such appointment was on probation, which was also extended. 14. The fact that the petitioner, after her transfer to Dharmanagar Branch, did not join there, is an admitted position. She was appointed in the bank service on 19.1.1983, and her such appointment was on probation, which was also extended. After serving for about two and half years when she was transferred to Dharmanagar Branch she took recourse to unauthorized absence on the ground of purported illness. When she was directed to appear before the Medical Board she declined to do so. Situated, thus, when her service was dispensed with by an order dated 3.4.1991, she made a challenge to the same by filing Civil Rule No.208 of 1991. The writ petition was disposed of by judgment and order dated 4.1.1998, granting liberty to the respondent Bank either to initiate departmental proceedings or to pass appropriate order in accordance with law. 15. Pursuant to the aforesaid order the petitioner was issued a notice dated 18.1.1999 directing her to submit reply. However, showing the attitude of defiance, once again the petitioner declined to furnish any reply on the ground that in terms of the aforesaid judgment and order she was entitled to reinstatement in her service. Not only that, although she had the opportunity to submit her reply after issuance of Annexure 4 letter dated 25.1.1999 by which the Bank had informed her that her reply was not satisfactory till passing of the impugned order dated 22.3.1999, she did not do so and she continued with her approach of defiance. 16. Although Mr. Talapatra, learned senior counsel for the petitioner submits that the service of the petitioner could not have been dispensed with without taking recourse to departmental proceeding, the matter will have to be considered in the context that the petitioner was a probationer. Her period of probation was also extended. Her service was not confirmed by a written order. Thus, the bank was authorized to dispense with her service taking into account the facts which are essential for confirmation or otherwise of a probationer. If the bank authority was not satisfied with the performance of the petitioner during her period of probation, it was within its competence and jurisdiction to dispense with her services. 17. Mr. Thus, the bank was authorized to dispense with her service taking into account the facts which are essential for confirmation or otherwise of a probationer. If the bank authority was not satisfied with the performance of the petitioner during her period of probation, it was within its competence and jurisdiction to dispense with her services. 17. Mr. Talapatra, learned senior counsel for the petitioner further submits that the impugned order being a stigmatic one, the same is liable to be interfered with even if the same is said to be passed at a time when the petitioner was under probation. If no reason is assigned in the order, as has been held by the Apex Court in Krishnadevarya v. L.A. Balakrishna, AIR 2001 SC 625 , normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged without assigning any reason. However, even if it is recorded that the job proficiency of the incumbent was not up to the mark, that would be a valid reason for terminating his services. If no reason is assigned, then also the probationer is likely to contend that in absence of any reasons assigned in the order, the same is bad in law. On the other hand, if reason recording unsatisfactory service is assigned then also there is tendency to question the same on the ground of being stigmatic. Each case will have to be considered on its own merit. 18. The matter will have to be considered in the context of the fact that the services of the petitioner was with a financial institution, namely, the Tripura Gramin Bank, which discharges public functions. The petitioner, being engaged with such a financial institution had all along shown defiance to the lawful orders passed by the bank authority. Firstly, she remained absent from duties unauthorizedly and thereafter when she was directed to appear before the Medical Board, she declined to do so. She also did not submit her reply to the notice issued by the bank authority although she got adequate opportunity to do so. 19. The fact speaks for itself. Here is a case in which the petitioner, who was appointed in the bank service on 19.1.1983, and thereafter, was transferred to Dharmanagar Branch, by an order dated 23.9.1985, all along remained unauthorizedly absent. 19. The fact speaks for itself. Here is a case in which the petitioner, who was appointed in the bank service on 19.1.1983, and thereafter, was transferred to Dharmanagar Branch, by an order dated 23.9.1985, all along remained unauthorizedly absent. By now, almost 26(twenty-six) years have elapsed since she started remaining absent from duties unauthorizedly. If such an employee of the bank irrespective of her approach to her duties and responsibilities is allowed reinstatement in service, in my considered view, the same will be antithesis to the very purpose for which laws are framed. 20. Apart from the above, the matter will also have to be looked into in the perspective of delay and laches on the part of the petitioner. Merely because of the amendment allowed by an order dated 30.10.2009 in CM Appln. No.336 of 2009, the same will not cloth the petitioner with the contention that the writ petition was filed well within time. As to what was the prayer in the original writ petition has been noted above. It was only after about ten years the amendment was brought towards challenging the order of termination from service. As has been held in Ratan Chandra Sammanta v. Union of India, AIR 1993 SC 2276 , delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation, a person who has lost his remedy by lapse of time loses his right as well. 21. The petitioner, after filing of the writ petition praying for disposal of the departmental appeal, kept on sitting over the matter and allowed things to happen. It is only after ten years of filing of the writ petition, the impugned order of termination was challenged by an amendment to the writ petition. Merely because the amendment was allowed, the same cannot be said to be by way of condonation of delay and laches so apparent on the face of it. 22. For all the aforesaid reasons discussed above, I do not find any merit in the writ petition and accordingly it is dismissed. There shall be no order as to costs.