Ajay Kumar & Another vs Union Of India & Others
2014 Latest Caselaw 2555 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 58
 

 
Case :- WRIT - A No. - 19130 of 2011
 

 
Petitioner :- Ajay Kumar & Another
 
Respondent :- Union Of India & Others
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- A.S.G.I.,Rajiv Singh,S.C.,Sanjay Singh
 

 
Hon'ble Suneet Kumar,J.

Petitioners two in number have approached the Court challenging the order dated 23.3.2011 passed by Assistant Manager, Punjab National Bank, Circle Officer, Bulandsahar whereby the services of the petitioners was terminated.

The facts briefly is that the petitioners were appointed on 2.7.2009 by the Senior Manager (Home Resources Development) on the post of 'Peon'. The appointment letters provided for six months probation period. Pursuant thereof, the petitioners joined at Malakpur Branch and Jakhaita Branch, District Bulandsahar respectively. On 8.4.2010, the services of the petitioners was confirmed. The conduct and performance of the petitioners was satisfactory and by orders dated 28.4.2010 and 3.5.2010 respectively, petitioners were sanctioned daftari allowance.

At the time of appointment, petitioner no. 1 was Bachelor of Arts (B.A.) and petitioner no. 2 a Bachelor of Commerce (B.Com). During the Course of service, the petitioners sought permission to take Post Graduation Examination as a private candidate and vide letters dated 5.2.2010 and 14.7.2010 permission was granted. All of sudden by the impugned order dated 23.3.2011, services of the petitioners was terminated by an ex parte order without providing opportunity to the petitioners for the reason that on the date of appointment they were over-qualified and the minimum and maximum qualification for the post of 'Peon' was intermediate.

The submission of learned counsel for the petitioners is that the termination order is bad and arbitrary exercise of power, the petitioners cannot be terminated for having higher qualification than that prescribed and further no opportunity of hearing, as required under the contract of appointment, was provided to the petitioners. In support of his submission, the learned counsel for the petitioners has relied upon the following judgments:- Munna Roy vs. Union of India and others (2000) 9 SCC 283, Jaideep Shukla and others vs. Union of India and others in Writ Petition (S/B) No. 626 of 2009, Mohd. Riazul Usman Gani and othersvs. District & Sessions Judge, Nagpur and others (2000) 2 SCC 606, Commissioner of Trade Tax, Uttar Pradesh vs. Associated Distributors Ltd. (2008) 7 SCC 409.

In rebutal Sri Sanjai Singh appearing for the Bank submits that the petition is not maintainable, as the petitioners have an efficacious alternative remedy by approaching the Labour Tribunal under the Industrial Disputes Act and secondly, it has been submitted that the maximum and minimum qualification was 12th (intermediate) pass and since on the date of application, the petitioners were graduate, hence they were not eligible for the post of peon.

Rival submissions call for consideration.

Supreme Court in Mohd. Riazul Usman Gani and others vs. District & Sessions Judge, Nagpur and others (2002) 2 SCC 606 was considering the criteria fixed by the Advisory Committee constituted under the rules for short listing of applicants. The criteria provided that applications of those candidates possessing minimum qualification of passing fourth and regular standards and/or educated up to passing of 7th standard only should be considered for the interview to the post of peons and those who have studied above 7th standard vernacular standard might not take proper interest in the work of peons and, therefore, should not called for interview. Paras 20 and 21 are as follows:-

"If an employee does not perform the duties attached to the post disciplinary proceedings can certainly be taken against him. An employer cannot throw up his hands in despair and devise a method denying appoint- ment to a person who otherwise meets the requisite qualifications on the ground that if appointed, he would not perform his duties. Qualification prescribed is minimum. Higher qualification cannot become a disadvantage to the candidate.

A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification, than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application.

In Munna Roy vs. Union of India and others (2009) 9 SCC 283 Supreme Court has held as follows:-

"However, if the administrative authority takes a decision and the reasons for such decision are erroneous then such a decision can be interfered with by Court of Law. In the case in hand the appellant pursuant to an advertisement had applied for and she had the requisite qualification. She became successful in the written test as well as in the viva-voce. The list of successful candidates included her name but the ground for cancellation of the entire list without even informing the appellant was that though the minimum qualification required was a matriculate she was a graduate and thus dubious method has been adopted for being selected. We really fail to understand that if a candidate possesses a qualification higher than the required qualification and the advertisement itself had prescribed the same then how can the authority come to a conclusion that selection has been made by adopting a dubious method. In the aforesaid premises, we have no hesitation to come to a conclusion that the reasons which weighed with the authorities to quash the selection are not germane and must be held to be arbitrary and irrational. We, therefore, set aside the impugned order of the High Court as well as the order of the concerned authorities quashing the selection panel and direct that the order of the Tribunal be implemented."

A Division Bench of this Court in Writ Petition No. 626 of 2009 (S/B) (Jaideep Shukla and others vs. Union of India) decided on 14.5.2010 rejected the plea of the railway administration to deny appointment of the petitioners, therein, who were diploma holders in chemical engineering on the post of Khalasi in railways, as it was nowhere mentioned, a higher qualification is a disqualification.

This Court again in Writ Petition No. 69034 of 2009 (Pankaj Kumar Dubey vs. Punjab National Bank and others) decided on 11.7.2014 rejected the contention of the bank, cancelling the appointment of the petitioner as he was disqualified for the post of peon for having passed intermediate examination whereas the minimum qualification prescribed was 8th passed.

Reliance was placed on a Full Bench judgment rendered by Punjab & Haryana High Court in Manjit Singh vs. State of Punjab and others (2011) 1 115 (P&H) (FB); the qualification prescribed for the post of Physical Training Instructor was certificate in physical education, the applicants were bachelor in physical education, which was a higher qualification, as compared to certificate in physical education and thus denied the appointment. The Full Bench of Punjab & Haryana High Court held that higher education cannot be treated to be a disqualification, as otherwise it would be revisable under Article 14 and 16.

Applying the law on the facts of the case at hand, the petitioners were registered with the employment exchange and their names were forwarded for the post of peon in Bulandsahar circle, pursuant to the interview letter dated 4.5.2009 issued by Senior Manager (HR), petitioner participated in the selection proceedings held on 195.2009 and were selected and appointed on 2.7.2009 on the post of peon. By order dated 8.2.2009, the petitioners were confirmed and by orders dated 28.4.2010 and 23.5.2010, the petitioner no. 1 and 2 were sanctioned daftari allowances.

The qualification of the petitioner no. 1 is bachelor of arts whereas the petitioner no. 2 is bachelor of commerce and both the petitioners were granted permission to appear in the examination of Master of Arts as private candidates by the respondent-bank on 5.2.2010 and 14.7.2010 respectively and vide impugned order dated 23.3.2011, the Assistant General Manager directed the termination of the services of the petitioners for the reason that the minimum and maximum educational qualification for the post of peon is that the person must be 12th pass and must be able to read & write in English and since the petitioners were highly qualified at the time of appointment, their qualification was not as per the requirement for the post their services were terminated as per paragraph 522 of the Shastri Award. Paragraph 522 of the Shastri Award is as follows:-

"522. We now proceed to the subject of termination of employment. We give the following directions:

(1) In case not involving disciplinary action and subject to Clause (6) below, the employment of a permanent employee may be terminated by three months' notice on payment of three month's pay and allowances in lieu of notice. The services of a probationer may be terminated by one month's notice or on payment of a month's pay and allowances in lieu of notice;

(2) A permanent employee desirous of leaving the service of the Bank shall give month's notice in writing to the Manager. A probationer desirous of leaving service shall give 14 days' notice in writing to the Manager. A permanent employee or a probationer shall when he leaves service, be given an order of relief signed by the Manager;

(3) If any permanent employee leaves the service of the bank without giving notice, he shall be liable to pay the bank one month's pay and allowances. A probationer if he leaves service without giving notice, shall be liable for 14 days' pay and allowances;

(4) The services of any employee other than a permanent employee, or probationer may be terminated and he may leave service after 14 days' notice. If such an employee leaves service without giving such notice he shall be liable for a week's pay (including all allowances);

(5) An order relating to discharge or termination of service shall be in writing and shall be signed by the Manager. A copy of such order shall be supplied to the employee concerned;

(6) In cases of contemplated closing down or of retrenchment of more than five employees, the following procedure shall be observed:

(a) two month's notice of such proposed action shall be given individually to all the employees concerned, with a statement of the reasons for such proposed action ;

(b) the Manager or an officer empowered in this behalf shall within the period of such notice hear any representation from the employees concerned or any registered union of the bank employees;

(c) after the hearing of such representation and the receipt of a report in the matter, if necessary, by the management, if it decides to give effect to the contemplated closing down or retrenchment in the original or an amended form the services of the employees may be terminated by giving notice or payment, in lieu thereof for the periods prescribed above."

It is not disputed between the parties that the petitioners are confirmed employees and the impugned order was passed without putting the petitioners to notice or giving them opportunity to show cause, further petitioners had not concealed their educational qualification at the time of appointment.

The respondents have contended that the termination order was passed strictly as per the provisions of the Shastri Award, and as per the Bank's guidelines, Human Resource Development Division Head Office letter dated 19.12.2009, it is clearly mentioned that the minimum as well as maximum educational qualification is 12 standard or its equivalent with basic knowledge to read and write in English, as specified in H.R.D. Circular No. 25/2008 dated 6th November, 2008 which has been brought on record by the respondent nos. 2, 3 and 4 in the counter affidavit sworn by Deputy Manager (Law) Punjab National Bank circle Office Bulandsahar which is extracted below:-

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From the bare perusal of the circular dated 6th November, 2008, it is evident that the person should have passed 12th exam and should know to read and write in English. The circular nowhere prescribes that 12th is the maximum qualification. The document does not support the pleadings averred in paragraph 13 of the counter affidavit wherein it has been stated as follows:-

"13............... In reply it is respectfully submitted before this Hon'ble Court that in terms of Bank's guidelines, HRD Division, Head Office letter dated 19.12.2009 - it is clearly mentioned that minimum as well as maximum educational qualification is pass in 12th Standard and its equivalent with basic reading/writing konwledge of Engilish as psecified in HRD Circular No. 25/2008 dated 06.01.2008. In this regard the deponent is collectively filing the true copy of letter dated 19.12.2009 as well as HRD Circular No. 25/2008 dated 06.01.2008 and marked as Annexure No. C.A. & 3 to this affidavit.

The counsel for the bank was allowed time on several dates to bring on record the relevant documents pertaining to qualification and pursuant thereof Sri H.K. Kulshreshtha, Senior Manager, Punjab National Bank, Circle Officer, Bulandsahar filed a supplementary affidavit wherein it has been averred in paragraph 3 that the Hindi translated version of HRD Circular No. 25/2008 dated 6th November, 2008 was filed in the counter affidavit; in "English Version" it is specifically mentioned in the head of educational qualification that "educational qualification for post of peon shall be maximum and minimum 12th pass". The educational qualification mentioned in the English version of the circular dated 6th November, 2008 is as follows:-

Educational Qualification (For all Categories)

Pass in XIIth Standard or its equivalent, with basic reading/writing knowledge of English.

MAX AND MINI - 12th PASS

In Hindi version as well as the English version, the only difference is that in the English version maximum and minimum 12th pass has been added whereas both the circulars provides that the educational qualification is pass in 12th Standard.

Learned counsel for the petitioner during the course of the argument produced documents from the official website of the Punjab National Bank of the English verison of the circular and the circular does not mention the "maximum and minimum 12th pass", when confronted with the document, the learned counsel for the respondent again sought time for instructions which was declined for the reason that the circular was in consonance with the Hindi version of the circular.

The conduct of the bank in filing affidavit which are self contradictory to their own documents and not taking a clear stand is abuse of proses of Court and strengthen the plea of victimization of its lowest class of employees. It is also not the case of the respondents bank that the Hindi version of the circular is not the correct/authentic version and further the bank is unable to explain as to how, the English version mentions the maximum and minimum qualification as 12th pass whereas the educational qualification is mentioned as pass in 12th Standard or its equivalent.

Officials of the respondent-bank have exposed themselves for both criminal and civil consequences.

Supreme Court in the case of V. Chandrashekaran and another vs. Administrative Officer and others [(2012) 12 SCC 133 observed that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take in consistent positions. Paras 45, 46 and 47 are as follows:-

"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

46. In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

47. The truth should be the guiding star in the entire judicial process. Every trial is a voyage of discovery in which truth is the quest. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).

The learned counsel has relied upon a judgment of the Supreme Court rendered in Commissioner of Trade Tax Uttar Pradesh vs. Associated Distributors Limited (2008) 7 SCC 409 wherein the Court while examining the contents of a notification issued under the U.P. Sales Tax Act, 1948 held that the notification issued in Hindi will be applicable, in case, there is contradiction in the notifications in the English Version of the notification. Para 7 is as follows:-

"7. It is pertinent to mention here that the official language of the State of Uttar Pradesh is Hindi. If any difference is found between the notifications in English and Hindi, the notification issued in Hindi will be applicable. On the said notification, the courts have decided that confectionery comes within sweets (mithai) and sweetmeat, but it has not been mentioned that Bubble-gum comes within the category of a Sweet."

In the facts of the case referred to above, the Court was examining as to whether "bubblegum" would be included in the notification so as to mean sweet meat etc. The ratio of the judgment may not apply on the facts of the present case as to question involved is not regarding the interpretation of any word or phrase having contradictory meanings in the Hindi or English version of the circular but as to whether the phrase "maximum and minimum 12th pass" is a part of the circular dated 6th November, 2008, the bank itself is not clear regarding the contents of there own circular or are trying to mislead the Court by filing contradictory documents and affidavits.

Even presuming that the maximum qualification was 12th pass, the petitioner in the peculiar facts of the case cannot be penalized as they were graduate at the time of appointment and they have not suppressed their qualification and on being confirmed they applied for permission to appear in the post graduate examination as private candidates which was duly approved by the bank and subsequently a cryptic impugned order was passed that the appointments was not as per the qualification and hence their services has been dispensed with without giving any opportunity or notice as required under paragraph 522 of the Shastri Award.

It is not the case of the respondent-bank that the petitioners do not have the minimum qualification but have been disqualified for the reason that they are graduates.

The names of the petitioners was sponsored by the employment exchange and it is not the case of the respondents that the petitioners had made an application in any prescribed form suppressing their qualifications. The respondent-bank has not brought on record the advertisement, if any, issued in the news papers and the candidates who were sponsored from the employment exchange were not put to notice regarding the qualification for appointment on the post of peon. The services of the petitioners have been terminated exercising powers under paragraph 522 (1) of the Shastri Award which provides that in case, not involving disciplinary action and subject to Clause (6) the employment of a permanent employee may be terminated by three months notice on payment of three months pay and allowances in lieu of notice. The impugned order has not been passed as per Clause (1) of Shastri Award para 522, admittedly no three months notice or salary in lieu thereof was paid to the petitioners. The impugned order dated 23.3.2011 only provides that the services of the petitioners shall stand terminated w.e.f. 1.4.2011.

The Supreme Court in Balmer Lawrie & Company Limited and others vs. Partha Sarathi Sen Roy and others [(2013) 8 SCC 345] held that a permanent employee of an Organization, which is a State within the meaning of Article 12, cannot incorporate such a Clause terminating the services of the employee on notice or salary or wages in lieu of notice. Paragraphs 29, 30, 40 and 41 are as follows:-

"29. In West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh & Ors. (1985) 3 SCC 116, this Court considered a case where the respondent-employee was terminated by giving him only three months' notice, and without holding any enquiry or informing him about any actions on his part that were unwarranted. The court, after placing reliance on the judgment in Workmen v. Hindustan Steel Ltd. AIR 1985 SC 251, held that where a regulation enables an employer to terminate the services of an employee, in an entirely arbitrary manner and in a manner that confers vicious discrimination, the same must be struck down as being violative of Article 14 of the Constitution. Therefore, even Standing Orders must be non-arbitrary, and must not confer uncanalised and drastic powers upon the employer, which enables him to dispense with an inquiry and further enables him to dismiss an employee, without assigning any reason for the same, by merely stating, that doing so would not be expedient, and that it would be against the interests of the industry, to allow continuation of employment with respect to the employee. This is primarily because, such a procedure is violative of the basic requirements of natural justice. Such power would tantamount to a blatant adoption of the "hire and fire" rule.

30. Where the actions of an employer bear public character and contain an element of public interest, as regards the offers made by him, including the terms and conditions mentioned in an appropriate table, which invite the public to enter into contract, such a matter does not relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a contract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable contract, or an unfair or unreasonable clause in a contract, that has been entered into by parties who do not enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where such a condition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the contracting parties, the aforesaid principle would automatically apply for the reason that, freedom of contract must be founded on the basis of equality of bargaining power between such contracting parties, and even though ad idem is assumed, applicability of standard form of contract is the rule. Consent or consensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional conditions in statutory rules/regulations vis-à-vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and conditions. (Vide: Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571; D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101; K.C. Sharma v. Delhi Stock Exchange & Ors., AIR 2005 SC 2884; and Punjab National Bank by Chairman & Anr. v. Astamija Dash, AIR 2008 SC 3182).

40. Undoubtedly, the High Court has not dealt with the issue on merits with respect to the termination of the services of the respondents herein. However, considering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending not only before the High Court, but also before this Court, it is desirable that the dispute come to quietus. Therefore, we have dealt with the case on merits. In keeping with this, we cannot approve the "hire and fire" policy adopted by the appellant company, and the terms and conditions incorporated in the Manual of Officers in 1976, cannot be held to be justifiable, and the same being arbitrary, cannot be enforced. In such a fact-situation, clause 11 of the appointment letter is held to be an unconscionable clause, and thus the Service Condition Rules are held to be violative of Article 14 of the Constitution to this extent. The contract of employment is also held to be void to such extent.

41. The dictionary meaning of the word "unconscionable" is :-

"76. showing no regard for conscience; irreconcilable with what is right or reasonable."

In the case of Pankaj Kumar Dubey (Supra) the Punjab National Bank was the respondent and in that case also no documents regarding the advertisement, circular was filed before the Court, which clearly shows that the officials of the bank are not acting as per their own circulars but on the whims of fancies of the officials.

For the facts and circumstances stated herein above, the impugned order dated 23.3.2013 passed by the Assistant General Manager, Punjab National Bank, Circle Office, Bulandsahar (Annexure 8A & 8B) to the writ petition is set aside.

The writ petition is allowed with all consequential benefits.

The bank has mislead the Court by filing contradictory affidavits and deliberate endeavor was made by the officials to mislead the Court by not to disclosing the correct facts, cost of Rs. 25,000/- shall payable to each of the petitioners by the respondents-bank within a period of one month from the date of production of certified copy of this order.

Order Date :- 7.7.2014

S.Prakash