Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 325 (KER)

Vasanthy Mohan v. Nedungadi Bank

2013-04-02

B.P.RAY

body2013
Judgment : 1. The petitioner was working in the Nedungadi Bank Ltd. (a scheduled bank) from 17th May, 1982 as a Clerk and promoted as an officer in April 1999. While working as such, she took maternity leave from 16th July, 2001. She did not rejoin duty after the maternity leave due to the complications in the delivery and cardiac problems. Therefore the leave period was extended from time to time. Petitioner has filed this original petition with the following prayers challenging her illegal termination from the services as per Ext.P10 order and the denial of the VRS benefits by Ext.P9 order: (i) to issue a writ of certiorari calling for the records leading to Exts.P9 and P10 and quash the same; (ii) to issue a writ, direction or order in the nature of mandamus commanding the second respondent to pass appropriate orders posting this petitioner on appropriate place and to give her all her emoluments to which she is entitled as if Ext.P10 orders has not been issued; (iii) To issue a writ, direction or order in the nature of mandamus commanding the second respondent to consider the application submitted by the petitioner claiming the benefits of the Voluntary Retirement Scheme within a time limit fixed by this honourable court and pass appropriate favourable orders therein. [Relief (iv) amended as per order in I.A.No.2787/2012, dated 5-3-2012] (iv) to issue a writ of certiorari calling for the records leading to Ext.P13 order and quash the same; (v) to award the costs of this litigation; (vi) such other reliefs which this honourable court deems thinks fit and necessary in the circumstances of the case. 2. Learned counsel for the petitioner submits that the period of leave is equivalent to period of service for notional benefits to which the petitioner is entitled to. It is pertinent to note that at no point of time the leave application made by the petitioner was rejected. Petitioner was in service till 7th November 2002. She entered in the service of the first respondent Bank on 17th May, 1982. Thus she is having more than 20 years of service. Without considering that aspect the VRS application submitted by her was rejected by the respondents for the reason that she was not having the requisite minimum qualifying services. Therefore the denial of the benefits of VRS is arbitrary and illegal. 3. Thus she is having more than 20 years of service. Without considering that aspect the VRS application submitted by her was rejected by the respondents for the reason that she was not having the requisite minimum qualifying services. Therefore the denial of the benefits of VRS is arbitrary and illegal. 3. Learned counsel for the petitioner contends that the first respondent has not conducted an enquiry before the issuance of Ext.P10 order. Moreover Ext.P11 representation submitted by the petitioner to review Ext.P10 order was also dismissed by the first respondent vide Ext.P13 order. Exts.P10 and P13 in the circumstances are liable to be quashed. The next contention raised by learned counsel for the petitioner is that since the first respondent bank has been taken over by the second respondent bank and the petitioner happened to be an employee of the second respondent bank on 2nd November 2002 she is entitled to get all the benefits as if she is on service from the 7th November, 2002. The second respondent shall give a suitable posting to the petitioner and pay all the emoluments as if she is in service immediately prior to 7-11-2002. 4. According to learned counsel for the respondent the contention raised by learned counsel for the petitioner that Ext.P10 termination order was passed without conducting an enquiry and following any procedure is totally misconceived. It is submitted that the petitioner herself had stated in Ext.P8 that she was unable to continue her service in the first respondent bank due to her illness. Therefore, on her own admission that she was unable to continue her job and therefore wanted the bank to allow her to retire under Voluntary Retirement Scheme. Since the petitioner had no qualifying service to claim retirement under VRS, it was not possible to consider her application for retirement under the scheme. The rejection of VRS application is in accordance with law. The petitioner has given wrong dates for the calculation of more than 20 years as claimed. The petitioner did not point out to any rule or law enabling her to get the benefit of voluntary retirement scheme when it was specifically stated by the bank that she had no required service to claim VRS. 5. According to learned counsel for the respondent, the contention that the bank had no authority to pass Ext.P10 when the bank was under moratorium is totally misconceived. 5. According to learned counsel for the respondent, the contention that the bank had no authority to pass Ext.P10 when the bank was under moratorium is totally misconceived. Moratorium has nothing to do with the action taken by the bank on the ground that the petitioner had absented herself unauthorisedly. The reason for termination of the petitioner is crystal clear from Exts.P1, P3 and P5. According to the petitioner, because of health reasons and her stay abroad, she absented herself from duty after availing herself of all types of leave she was eligible for. It can be seen from the records that leave was not sanctioned by the authorities as claimed by the petitioner. Moreover, none of her requests for leave was supported by any medical certificate or report in support of the supposed medical exigency requiring leave. 6. A perusal of the counter affidavit filed on behalf of the first and second respondents reveals that the first respondent bank has been amalgamated with the second respondent with effect from 1-2-2003. The petitioner is no longer in the service of the first and the second respondents. As per Rule 41(a) of Nadungadi Bank Limited Officers Service Rules, the services of an employee may be terminated by the competent authority without assigning any reason in the case of a permanent employee by giving him/her three months notice or pay in lieu thereof. The petitioner’s services were terminated on 7-11-2002 even before the amalgamation of Nedungadi Bank Limited with Punjab National Bank. As on the date the Nadungadi Bank Limited (Amalgamation with Punjab National Bank) Scheme, 2003 came into force on 1-2-2003, the petitioner was not an employee of the Nedungadi Bank Limited and as such she was not entitled to be considered as a continuing employee of the said bank. Therefore she did not become an employee of the Punjab national Bank. 7. According to the learned counsel for the petitioner Clause 8, Ext.R2 (12), Scheme of Amalgamation declares that all those who are in service prior to 2nd November 2002 will be in service of the Punjab National Bank. Therefore the petitioner was in service prior to the said date and only the Punjab National Bank could issue the termination, according to their Rule. No disciplinary action was taken against the petitioner. The law does not permit such a course of termination of service. Therefore the petitioner was in service prior to the said date and only the Punjab National Bank could issue the termination, according to their Rule. No disciplinary action was taken against the petitioner. The law does not permit such a course of termination of service. Even the Rule 41 insists that the employee should be given three months notice or pay, but Ext.P10 does not say both. So it is contrary to the said Rules. The next contention that no disciplinary action was taken against the petitioner and the present termination invoking the powers under Rule 41 is unconstitutional. Admittedly no disciplinary action was taken against the petitioner. 8. Rule 41 reads thus: “Rule 41: Termination: The services of an employee may be terminated by the competent authority without assigning any reason as under:- a) of a permanent employee by giving him three months notice in writing or pay in lieu thereof; b) of an employee on probation by giving him three months’ notice in writing or pay in lieu thereof; c) of a temporary employee by giving him 24 hours notice or pay in lieu thereof; Explanation: for the purpose of this Rule, the term ‘pay’ shall include all emoluments which would be admissible if he were on privilege leave.” 9. Learned counsel for the petitioner has relied upon following decisions: In Bishop of Kottayam and others v. Union of India ( 1985 KLT 742 ) it is observed that the moratorium contemplated under Section 45(1) of the Act is in respect of banking company and not confined to banking business only. Thus it is clear that only those activities that are permitted in the order of moratorium can be allowed to be carried out and not any other. If the first respondent bank is permitted to discharge their duties under the said Rules, of course the first respondent should have been justified in taking action under the Rules. 10. In Chairman, Canara Bank V. M.S. Jasra ( AIR 1992 SC 1100 ), it is observed that the right of the employees of the transferor bank is governed by the transferee bank. Applying the principle to the facts of the case the rights of the employees of the first respondent bank is governed by the Rules of the second respondent bank. The second respondent has no case that they have a similar Rule, like that of Rule 41. Applying the principle to the facts of the case the rights of the employees of the first respondent bank is governed by the Rules of the second respondent bank. The second respondent has no case that they have a similar Rule, like that of Rule 41. Even the order of amalgamation, Ext.R2 states that those who are in services on 2nd November, 2002 are entitled to continue in service. Thus the petitioner, who is in service on 2nd November 2002 is deemed to have been in service and the first respondent has no authority to invoke the provisions of the said Rules which are not in force on 7th November, 2002. Thus the petitioner is deemed to have been service as on 2nd November, 2002. 11. Learned counsel for the respondents 1 and 2 submits that the petitioner has not taken any contention in the original petition that she was entitled to any right and obligation of the employees of the transferor bank as provided under clause (8) of Chapter V of notification dated 31st January 2003 by which the Central Government sanctioned a scheme called Nedungadi Bank Limited (Amalgamation with Punjab National Bank) Scheme 2003. However, it is submitted that according to clause (8) all the employees of the transferor bank shall continue in service and be deemed to have been appointed in the transferee bank at the same remuneration and on the same terms and conditions of the service as were applicable to such employees immediately before the close of business on 2nd November 2002. The scheme was sanctioned by the Central Government as per notification dated 31st January 2003 in exercise of powers conferred by Section 45(7) of the Banking Regulation Act 1949. This clause (8) is not applicable in the case of the petitioner for the following reasons: (1) It applies to existing employees of the transferor bank as on 31-1-2003 and she was not an employee of the transferor bank as on 31-1-2003 to enable her to continue in service. (2) She has no case in the original petition that she came under the service of the transferee bank. (3) Since the petitioner was not continuing in service on 31-1-2003, the deeming provision made applicable to employees of the transferor bank immediately before the close of 2-11-2002 will not apply to her. 12. Learned counsel for the respondent has also relied upon the following decisions. (3) Since the petitioner was not continuing in service on 31-1-2003, the deeming provision made applicable to employees of the transferor bank immediately before the close of 2-11-2002 will not apply to her. 12. Learned counsel for the respondent has also relied upon the following decisions. In Kasturi v. Managing Director, State Bank of India 1998 (8) SCC Page 30, the subject matter was eligibility of pension. It was held that if an employee at the time of his retirement is not eligible for earning pension and stands outside the class of petitioners, and if by subsequent amendment of rule after his retirement, which extended the coverage of eligible pensioners, the same would not apply to him as he was outside the sweep of the amended provision. The Apex court followed the principle laid down in the previously decided case 1997 (9) SCC Page 606 and 1997(7) SCC 334 . 13. In Bank of Baroda V. Rajendra Pal Zoni (1996 (7) SCC page 696) the Central Government had accepted the amalgamation under Section 45(7) with effect from the appointed date 13-5-1988. Under clause 10 of the scheme in that case all the employees of the transferor bank shall continue in service and be deemed to have been appointed by the transferee bank on the same terms and conditions of service as were applicable to such employees as on 20-1-1987. Since the respondent employee was not an employee as on that date in the transferor bank, having resigned on 25-6-1986 and the same accepted on 2-7-1986, the transferee bank had no liability in the matter. Applying that principle in the present case, when notification dated 31-3-2003 in pursuance of Section 45(7) was issued, the petitioner was not in service and hence, is not entitled to any claim. Her service had already been terminated on 7-11-2002. 14. Learned counsel for the respondent further submits that the petitioner has challenged Exts.P9 and P10 and has prayed for quashing the same. Exts.P9 and P10 were issued by Nedungadi Bank, the first respondent, which was not a nationalised bank and will not come under “other authorities” under Article 12 and therefore not amenable to the writ jurisdiction under Article 226 of the Constitution of India. 15. Heard learned counsel for the petitioner Sri.P.B.Sahasranaman, learned counsel for the respondents 1 and 2 Sri.P.Radhakrsihnan. I have perused the materials available on record. 16. 15. Heard learned counsel for the petitioner Sri.P.B.Sahasranaman, learned counsel for the respondents 1 and 2 Sri.P.Radhakrsihnan. I have perused the materials available on record. 16. It is evident from the records that on 2nd November, 2002 the Government of India has declared moratorium on the Nedungadi Bank. On the next day the petitioner sent a communication expressing her willingness to join for duty. But the Nedungadi Bank sent Ext.P10 letter to the petitioner terminating her services. Since the first respondent bank has been taken over by the second respondent bank and the petitioner happened to be an employee on 7th November 2002 she is entitled to get all the benefits as if she is on service from the 7th November, 2002. 17. Considering the entire facts and circumstances of the case, I am of the view that the impugned orders in this original petition are liable to be quashed. I do so. Accordingly, Exts.P9, P10 and P13 are quashed. Petitioner shall not be entitled to any financial benefit from the date of termination due to her unauthorised absence. However, petitioner shall get continuity of service and other notional service benefit. Respondent Bank is directed to give a suitable posting to the petitioner and the petitioner shall join duty as directed by the bank. If the petitioner does not want to continue in service, she can apply for voluntary retirement. If such an application is received, the bank will consider the same in accordance with law. Original petition is disposed of. There will be no order as to cost. All the pending interlocutory applications are closed.