S.K. Poddar vs Chairman, Punjab National Bank, ...
1999 Latest Caselaw 13 Del

ORDER

K. Ramamoorthy, J.

1. The writ petitioner is working in the Hindustan Commercial Bank Ltd. Acharged sheet was issued on 08.03.1985 and it is not necessary to refer to the details mentioned therein. On 10.04.1985 the petitioner sent his explanation to the charge-sheet. On 28.03.1985 and 02.04.1985 the second chargesheet was issued. On 22.04.1985 the petitioner sent his reply to the second charge-sheet. On 23.12.1985, the Hindustan Commercial Bank Ltd. passed the order of dismissal of the petitioner. The order reads as under:

THE HINDUSTAN COMMERCIAL BANK LTD (REGD. OFFICE: 59/29, Kasturba Gandhi Road, Kanpur) (Central Office: 2 Sarvodaya Nagar, Kanpur) 23rd December 1985 No. P/85/902 REGISTERED Shri S.K. Poddar, Officer under Suspension, 11/A, Dilkhush Street, P.O Circus, Calcutta - 17.

Dear Sir,

ORDER

During your tenure as Manager, Mayapuri New Delhi and Agra Branch, you made unauthorised advances to the extent of Rs. 6,26 lacs. you were placed under suspension w.e.f. 18.3.1985 in view of the various acts of misconduct amounting to gross negligence in the discharge of your duties which were detrimental to the interest of the Bank. The reply to the charge-sheets dated 8.3.1985 and 2.4.1985 received from you was considered and not found satisfactory. you were also afforded sufficient time to get the unauthorised advances adjusted but you could not get the amounts adjusted. The total amount which has become difficult of recovery due to your acts of omission & commission is as under:-

      Agra Branch       - Rs. 4.36 lacs
     Mayapuri, N.Delhi - Rs. 2.13 lacs
     Branch.
                    -------------
     Total =             Rs. 6.49 lacs
                    =============
 

After carefully considering all the material on record, it has been found that you are guilty of gross negligence in the discharge of your duties and concealment of facts from RO/CO. It has, therefore, been decided to dismiss you from the services of the Bank with immediate effect. Accordingly, you are hereby dismissed with immediate effect.

This issues with the approval of the Competent Authority.

Sd/-

(S.C. Tiwari)

Personnel Manager

2. The Hindustan Commercial Bank Ltd. did not hold any inquiry before passing the above order. As provided under Rule 13 of Officer Employees Discipline and Appeal Rules, the petitioner preferred an appeal to the appellate authority.

3. During the pendency of the appeal before the appellate authority of the Hindustan Commercial Bank Ltd. was amalgamated with the Punjab National Bank which is the Respondent. On 18.12.1986 the Government of India issued notification under Section 45 (7) of the Banking Regulation Act, 1949. The scheme relating to the amalgamation.

4. On or from 19.12.1986 the Hindustan Commercial Bank Ltd. became amalgamated to the Punjab National Bank before the appeal could be disposed of.The writ petitioner had filed the writ petition in this Court on 14.12.1988 praying for the following reliefs:

i) Issue an appropriate writ, order or direction quashing the impugned order dated 23.12.1985 as a nullity and being unsustain-

able in law.

ii) Issue an appropriate writ, order or direction directing the Respondent to take the Petitioner back in service with immediate effect with the benefit of continuity of service for all purposes including back salary and perks throughout the period from 23.12.1985 upto the date of his reinstatement in service.

5. The copy of the appeal preferred by the appellant is annexed with the writ petition as Annexure VII at page 27 of the typed set of the documents.

6. Apart from the merits of the case, the learned counsel for the respondent submitted that the writ petition is not maintainable in as much as the Hindustan Commercial Bank Ltd. was not a Nationalised Bank and the order sought to be impugned was passed by a Scheduled Bank and therefore, it is not competent. The learned counsel for the respondent relied upon the judgment of the Division Bench of the Andhra Pradesh High Court in Appeal No. 598 of 1987 dated 21.12.1989 which according to the learned counsel confirmed by the Supreme Court reported in Arun Madan Vs. Oriental Bank of Commerce 1987 (Supp) SCC 535. The learned counsel for the petitioner submitted that the judgment of the Andhra Pradesh High Court and the judgment of the Supreme Court do not apply to the facts of this case as the petitioner preferred an appeal on 06.12.1986 and on the date of amalgamation the appeal was pending before the appellate authority and by virtue of the provision in the Notification dated 18.12.1986 the appeal preferred by the petitioner ought to have been considered by the Punjab National Bank and therefore, the writ petition is competent.

7. Before dealing with the first point on the merits of the case, the question relating to the maintainability has to be decided. The fact that the appeal was pending on the date of amalgamation is not disputed. Notification issued by the Government of India on 18.12.1986 would state in clause 2 as under:

Clause (2)

"As from the date which the Central government may specify for this purpose under subsection (7) of Section 45 of the said Act (hereinafter referred to as the prescribed date) all rights, powers, claims demands, interests, authorities, privileges, benefits, assets and properties of the transferor bank, movable and immovable, including premises subject to all incidents of tenure and to the rents and other sums of money and convenants reserved by or contained in the leases or agreements under which they are held, all office furniture, loose equipment, plant, apparatus and appliances, books, papers, stocks of stationary, other stocks and stores, all investments in stocks, shares and securities, all bills receivable in hand and in transit, all cash in hand and on current or deposit account (including money at call or short notice) with banks, bullion, all book debts, mort gage debts and other debts with the benefit of securities, or any guarantee therefore, all other, if any, property rights and assets benefit of all guarantees in connection with the business of the transferor bank shall, subject to the other provisions of this scheme, stand transferred to, and become the properties and assets of, the transferee bank, and as from the prescribed date all the liabilities, duties and obligations of the transferor bank shall be and shall become the liabilities, duties and obligations of the transferee bank to the extent and in the manner provided hereinafter.

Without prejudice to the generality of the foregoing provisions, all contracts, deeds, bonds, agreements, powers of attorney, grants of legal representation and other instruments of whatever nature subsisting or having effect immediately before the pre scribed date shall be effective to the extent and in the manner hereinafter provided against or in favour of the transferred bank and may be acted upon as if instead of the transferor bank the transferee bank had been a party thereto or as if they had been issued in favour of the transferee bank.

If on the prescribed date any suit, appeal or other legal proceedings of whatever nature by or against the transferor bank is pending, the same shall not abate, or be discontinued or be in any way prejudicially affected, but shall subject to the other provisions of this scheme, be prosecuted and enforced by or against the transferee bank.

If according to the laws of any country outside India the previ ous of this scheme, by themselves, are not effective to transfer or vest any asset or liability situated in that country which forms part of the undertaking of the transferor bank to or in the transferee bank, the affairs of the transferor bank in relation to such assets or liability shall, on the prescribed date, stand entrusted to the Chief Executive Officer for the time being of the transferee bank and the chief executive officer may exercise all powers and do all such acts and things as would have been exercised or done by the transferor bank for the purpose of effectively winding up its affairs. The Chief Executive Officer shall take all such steps as may be required by the laws of any such country outside India for the purpose of effecting such transfer or vesting and in connection therewith the chief executive officer may, either himself or through any person authorised by him in this behalf, realise any assets or discharge any li ability of the transferor bank and transfer the net proceeds thereof to the transferee bank.

9. The submissions made by the learned counsel for the petitioner is that the appeal preferred by the petitioner to the appellate authority would be governed by Clause (2) and therefore the respondent Bank was under obligation to dispose of the appeal and by virtue of the above clause the respondent Bank had taken over the responsibility and it was under an obligation to dispose of the appeal and that was not done by the respondent Bank.

10. The learned counsel submitted that having failed to discharge its duty it is not open to the Respondent Bank to say that the appeal preferred by the petitioner would not come within clause (2) and therefore, the petitioner is not entitled to the relief prayed for in the writ petition. From clause 2 it is clear that all liabilities, duties and obligations of the transferor Bank shall be and shall shall become the liabilities, duties and obligations of the transferee Bank to the extent and in the manner provided in the Scheme. With reference to the appeal preferred by the officer there is no specific provision in the Scheme. The provision referred to by the learned counsel for the petitioner and the learned counsel for the Respondent Bank would speak of any suit, appeal or other legal proceedings against the transferor Bank and the same shall not abate. On the interpretation of this, the learned counsel for the parties had joined issues. The learned counsel for the petitioner would submit that the appeal filed by the petitioner is contemplated within this whereas the learned counsel for the respondent Bank submits that the appeal preferred by the petitioner is only from the order of the appellate authority of the transferor Bank and it is not termed as appeal of the transferee Bank and therefore, this provision cannot be relied upon by the Petitioner.

11. The learned counsel for the respondent Bank, as already noticed above, has referred to the judgment of the Andhra Pradesh High Court. Therein the order impugned before the High Court was passed in 1981 and the writ petition was filed in 1984 and the amalgamation was done in 1986. The Division Bench while differing from the view taken by the learned Single Judge took the view as under:

"The bank was amlgamated only in the year 1986 with one of the Nationalised Banks viz., the Punjab National Bank. The subject matter of the writ petition is an order of dismissal passed in the year 1981 long before the amalgamation of the Bank with the Punjab National Bank in the year 1986. The writ petition was filed in the year 1984. Therefore, the amalgamation of the Bank with the Punjab National Bank in the year 1986 will not be relevant in deciding the question of validity of the order of dis missal passed before its amalgamation with a Nationalised Bank.

For the reasons stated above, the writ petition is not maintain able against the Bank as it is not a 'State' within the meaning of Article 12".

12. On these facts the Supreme Court confirming the order of the Andhra Pradesh High Court and held:

ORDER

The order of termination of the service of the appellant was passed before the respondent Bank was nationalised. The High Court was therefore right in holding that a writ petition under Article 226 of the Constitution was not maintainable against an order made when the Bank was a public limited company. Therefore, the appeal is dismissed. No costs.

13. In my view, the ratio of the judgment of the Supreme Court would not apply to the facts of this case. At the time of amalgamation the appeal preferred by the Petitioner was pending with the Hindustan Commercial Bank Ltd. and that would have been noticed by the Punjab National Bank when all liabilities, duties and obligations have been taken over under the Scheme by the Punjab National Bank, the Punjab National Bank should have taken over the task of disposing of the appeal. Admittedly that had not been done. Nothing is mentioned in the counter affidavit about the appeal. The stand taken now is that the Hindustan Commercial Bank Ltd. in so far as the appeal preferred by the petitioner is concerned had not become extinct and therefore it is none of the concern of the Punjab National Bank. I am quite unable to accept this submission. The stand taken by the Punjab National Bank in the counter affidavit runs counter to the scheme of amalgamation issued by the Government of India. Therefore, the argument that the writ petition is not competent is without any substance and therefore I hold the writ petition is competent against the respondent.

14. Relating to the validity of the order impugned, a bare perusal of the order would show that it is contrary to the well established principle. No inquiry was conducted. No finding is given. There is absolutely no material on record to sustain the conclusion reached by the Bank. After hearing the learned counsel for the parties I thought that I should direct the Punjab National Bank to dispose of the appeal preferred by the Petitioner but after a long lapse of time it will be futile exercise. Further the impugned order passed by the Hindustan Commercial Bank Ltd cannot be sustained and the Punjab National Bank had not taken any steps to dispose of the appeal. I am of the view only course open in law to set aside the order impugned in the writ petition.

15. Accordingly, the writ petition is allowed. The order dated 23.12.1985 is set aside. It is stated by the learned counsel for the parties that the petitioner had attained the age of superannuation in July 1995. However, the petitioner shall be entitled to all the consequential benefits. There shall be no order as to costs.