Madras High Court
M.Sultan Mohideen vs Central Bank Of India on 28 October, 2021
WP.No.5934 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.5934 of 2009
and
M.P. No.1 of 2009
M.Sultan Mohideen .... Petitioner
Vs.
1.Central Bank of India,
Rep. by its Chairman &
Managing Director,
Head Office, Chander Mukhi,
Nariman Point, Mumbai – 400 023.
2.The General Manager,
Central Bank of India,
Zonal Office, Montieth Road,
Chennai – 600 008.
3.The Assistant General Manager,
Central Bank of India,
Regional Office,
Rahejha Complex III Floor,
69, Anna Salai, Chennai – 600 008. .... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying
to Writ of Certiorarified Mandamus to call for the records from the files of the 3rd
respondent in respect of his impugned proceedings bearing RO:HRD:2008-09/357
dated 2nd June 2008 imposing on the Petitioner the punishment of Removal from
1
WP.No.5934 of 2009
the bank’s services and quash the same and consequently direct the respondent’s
Bank to settle all the terminal benefits and all other claims and payments pending
settlement and accruing to the Petitioner.
For Petitioner : Mr.K.M.Ramesh
For Respondents : Mr.Anand Gopalan, for
M/s.T.S.Gopan and Co.
ORDER
The petitioner was employed with the Central Bank of India (CBI), Coonoor
Branch as a Senior Manager. The terms and conditions of the petitioner’s
employment are governed by the Central Bank of India (Officers’) Service
Regulations, 1979 (Regulations). On 05.03.2007, he submitted a letter of
resignation seeking to resign from the services of the Bank. Regulation 20 (2)
provided for a notice period of 90 days, upon expiry of which, the employee
stands relieved automatically.
2. There is no dispute on this position and Regulation 20 (2) states as
follows:
“20- Termination of Service
(1)………….
WP.No.5934 of 2009
(2) An officer shall not leave or discontinue his service in the Bank without
first giving a notice in writing of his intention to leave or discontinue his
service or resign. The period of notice required shall be 3 months and shall
be submitted to the Competent Authority as prescribed in these regulations.
Provided further that the Competent Authority may reduce the period
of 3 months or remit the requirement of notice.”
3. Regulation 20 (2) provides for automatic resignation upon the employee
seeking the same, with a notice period of three months. The Competent Authority
has, under the proviso, been permitted to reduce the notice period or even remit
the requirement of a notice. Thus it is a clear and unambiguous position that the
employee concerned is entitled to exit the Bank after the notice period, except if
the Bank specifically rejects the request for resignation. In this case, there has
been no rejection of the petitioner’s request and the period of notice would draw to
an end on 03.06.2007.
4. On 18.04.2007, the petitioner received a copy of letter addressed by
Regional Office, Coimbatore to the Coonoor Branch of the Bank that states as
follows, ‘The application for resignation from Bank’s service submitted by the member on
05.03.2007 is under process with us. Please advise the member that he cannot be deemed to
have relieved from Bank’s service on the expiry of three months notice period unless and until a
specific communication about acceptance of his resignation from Bank’s service has been
received by him.’
WP.No.5934 of 2009
5. This letter does not appear to be in tandem with the applicable Regulation
in so far as the Regulation does not provide for an acceptance of resignation but
only for a rejection of the employee’s application for resignation. On 04.05.2007,
the petitioner was transferred to the International Business Branch (IBB) at
Chennai and notwithstanding his request for resignation, he assumed charge on
14.05.2007. Between 25.05.2007 and 29.05.2007, a snap audit was conducted at
his erstwhile Branch at Coonoor.
6. In the course of arguments, both the learned counsel would admit to the
position that the petitioner had been asked to go to Coonoor and assist the conduct
of the audit since he has been Senior Manager there until recently. The petitioner
likewise accommodated the request. On 19.06.2007, the petitioner had received a
draft memo of charges alleging certain irregularities in the management of the
Coonoor branch to which, the petitioner replied on 06.09.2007 requesting that the
charges be dropped. He stated that the audit objections that had been raised had
been duly and fully addressed and explanations furnished.
7. The petitioner has also received his salary for the period when he
assumed charge of the IBB branch from May to September, 2007. Thereafter, he
applied for ordinary leave from 05.10.2007 to 13.10.2007 on the ground of ill
WP.No.5934 of 2009
health that was sanctioned. He sought extension of leave from 16.10.2007 to
27.10.2007 and on 24.10.2007 the same was rejected by the Bank. On 05.11.2007,
he had been directed to appear before the Medical Board for examination vide
phonogram vide even date, that made reference to a telegram issued earlier
informing him that his absence was to be treated as unauthorized and on the basis
of loss of pay.
8. On 17.11.2007, a memo was issued to the petitioner in regard to his
unauthorized absence and on 21.11.2007 the petitioner sought time to reply to the
memo. On 14.01.2008, though the petitioner was directed to appear before the
Government Hospital, Coimbatore for medical checkup, he neither appeared nor
resumed duty and on 15.03.2008, a charge memo was issued for continued
absence, unsanctioned.
9. Though, he was directed to appear for enquiry on 28.03.2008, 05.04.2008
and 17.04.2008, there was no appearance by the petitioner on the aforesaid dates.
On 22.05.2008, an enquiry report was forwarded wherein the officer had found the
absence of the petitioner from the period 16.10.2007 and thereafter unsanctioned
and unauthorized. On 02.06.2008, the services of the petitioner were terminated
and challenging the same the petitioner is before this Court.
WP.No.5934 of 2009
10. In addition to the admitted facts set out aforesaid, the petitioner would
also submit that the draft memo of charges issued to him on 19.06.2007 had not
been pursued by the Bank and have been dropped. His challenge to the order of
termination is premised on the position that his request for resignation came into
effect on 30.06.2007 and in such circumstances, there could be no question of
terminating her services.
11. The stand of the Bank is that by letter dated 18.04.2007 the petitioner
had been duly informed that his resignation was not liable to be automatically
accepted until a specific communication was issued in that regard. Thereafter, the
petitioner has complied with the order of transfer and joined the IBB branch in
Chennai on 14.05.2007, participated in the audit proceedings at Coonoor and
received salary till September, 2007. He has, by conduct disregarded the
resignation and can no longer pursue or refer to the same. According to the
respondents, the request for resignation stood overridden by the petitioner the
minute he acquiesced to the order transferring him to Chennai.
12. The respondent adopts the stand that the application for resignation has
not been acted upon by both parties and in the course of oral argument, they
concede to the position that no order of rejection was ever sent to him. A
WP.No.5934 of 2009
preliminary objection is raised on the maintainability of the writ petition and the
Bank relies on two judgments of the Hon’ble Supreme Court in the cases of
Modern School Vs Shashi Pal Sharma ((2007) 8 SCC 540) and K.K.Saksena Vs
International Commission on Irrigation & Drainage ((2015) 4 SCC 670). The
arguments are twofold, one that the employment of the petitioner is contractual
and two, that the terms of the contract are governed by Service Regulations that
are not statutory in nature.
13. The defence is also two-fold. Firstly, the petitioner would say that the
writ petition has been pending since 2009 and it would thus not be appropriate to
foreclose the substantial issues that arise on the technical ground of
maintainability. More importantly, the respondent Bank is a Nationalised Bank
and though the question that arises is qua as a specific employee, the employee
renders a public duty as part of the mandate of the Bank. The Bank is expected to
adhere to fair and transparent norms in dealing with the employees and any
perversity in this regard would fall within the ambit of judicial review.
14. I deal with the aspect of maintainability first. In the case of K.K.Saksena
(Supra), the Hon’ble Supreme Court reiterates the well settled position that the
nature and extent of duty imposed upon an authority and the extent of its public
WP.No.5934 of 2009
nature and function are to be examined in order to determine whether it is
amenable to Article 226 of the Constitution of India. Thus even if, generally, a
body performing public duty were amenable to writ jurisdiction, it cannot be said
that all its decisions were subject to judicial review and only such decisions that
have some element of public duty in them would be so amenable.
15. However, the Bench clarified that the term ‘Authority’ used in Article
226 is to be interpreted more liberally than the use of the same term in Article 12
since, in a writ petition the powers of the High Court to issue writs for
enforcement of rights is wide and includes all rights apart from fundamental rights
under Constitution.
16. Several earlier judgments of the Hon’ble Supreme Court were referred
to in this context such as Andi Mukta Sadguru Shree Mukta Jeevandas Swami
Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R.Rudani and others ((1989) 2
SCC 691) was referred to where the Court has held that the firm or structure of the
entity concerned may not be so relevant as the nature of duty imposed upon the
Authority and the functionality of the Authority itself.
17. The Bank relies on this judgment to state that even if, as a nationalized
Bank its activities in the sector of Banking would be amenable to judicial review
as such activities would, no doubt, have large scale public ramifications and
WP.No.5934 of 2009
consequences, when it comes to the matter of employment qua its employees, such
matters would be solely governed solely by the terms of contract and the Service
Regulations in force, and hence would stand outside the purview of judicial
review.
18. In the case of Federal Bank Limited Vs. Sagar Thomas, ((2003) 10 SCC
733) the Hon’ble Supreme Court culled out the following Authorities/persons
amenable to writ jurisdiction in eight categories being (i) the State (Govt); (ii)
Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v)
a company which is financed and owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body discharging public duty or
positive obligation of public nature (viii) a person or a body under liability to
discharge any function under any Statute, to compel it to perform such a statutory
function.
19. Upon a careful study of the precedents, the Bench held that even if an
Authority were to be construed as ‘State’ within the meaning of Article 12 of the
Constitution of India, a writ petition would not lie where what a writ petitioner
sought was the enforcement of private law rights.
WP.No.5934 of 2009
20. In the case of B.Anita Vs General Manager, HRD, The Karur Vysya
Bank Limited and others (W.P. No.25101 of 2017 dated 16.04.2019), confirmed
by dated 10.12.2020 by the Division Bench in Writ Appeal No.1500 of 2019, a
similar question had arisen with regard to the maintainability of the writ petition
filed by an employee challenging an order of dismissal. The writ petition had been
dismissed as non-maintainable based upon the judgement of the Hon’ble Supreme
Court in the case of Zee Tele Films Limited and others Vs Union of India and
others ((2005) 4 SCC 649) that set out a series of guidelines in this regard:
’22. Above is the ratio decidendi laid down by a seven Judge Bench of this Court
which is binding on this Bench. The facts of the case in hand will have to be tested
on the touch stone of the parameters laid down in Pradeep Kumar Biswas's case
(supra). Before doing so it would be worthwhile once again to recapitulate what
are the guidelines laid down in Pradeep Kumar Biswas's case (supra) for a body
to be a State under Article 12. They are:-
(1) Principles laid down in Ajay Hasia are not a rigid set of principles so that if a
body falls within any one of them it must ex hypothesi, be considered to be a State
within the meaning of Article 12.
(2) The Question in each case will have to be considered on the bases of facts
available as to whether in the light of the cumulative facts as established, the body
is financially, functionally, administratively dominated, by or under the control of
the Government.
(3) Such control must be particular to the body in question and must be pervasive.
13 (4) Mere regulatory control whether under statute or otherwise would not
serve to make a body a State.’
21. Going one step further, the Hon'ble Bench in the case of Zee Telefilms
(supra) noticed that the Board of Control for Cricket in India (BCCI) discharged
WP.No.5934 of 2009
public duties that were in the nature of State functions and thus remedy under
Article 226 of the Constitution of India is always available to an aggrieved person.
Thus, even if the Authority concerned was private, if it exercises public functions,
the doors of this Court in writ jurisdiction would be open in such circumstances.
22. The question to be answered in this case is thus, whether the scope of
the phrase ‘public functions’ would include the termination of services of the
petitioner before me. This issue, no doubt, can be answered only upon an
interpretation of the contract of service qua the petitioner and the Bank. However
bearing in mind the specific issue that arises in this case, it would be an over
simplification if I were to merely close this issue as falling within the domain of
private functionality of the bank.
23. A far larger question arises in this case and this is the interpretation of
Regulation 20 (2) of the Service Rules, as applicable to, and qua all the bank
employees. The petitioner would argue that upon completion of notice period of
ninety days, he is entitled to exit the Bank and such exit must be accepted without
demur, except if the request for resignation had been rejected. While, in principle
accepting the aforesaid interpretation, the Bank carves out a caveat in this
WP.No.5934 of 2009
particular case, arguing that such entitlement had been overridden by the conduct
of the petitioner.
24. The restricted interpretation placed upon Regulation 20 by the Bank
would touch upon the service of all employees in the respondent organization. In
stating so, I am conscious that (i) there was no disciplinary action at the juncture
when the petitioner sought resignation, (ii) the operation of the Regulation is
automatic and (iii) the application of the petitioner has not been rejected by the
bank within the notice period of 90 days, or at all. As at this juncture, it ceases to
be one of private contract and is amenable to judicial review. I thus hold this writ
petition to be maintainable.
25. Coming to the merits of the matter, Regulation 20 (2) provides for an
omnibus entitlement to resign from the services of the Bank upon condition that a
notice period of three months shall be given by the employee. The proviso only
serves to enable the competent Authority to reduce the notice period or to remit
the requirement of notice altogether. It does not state anywhere that the employee
may be kept ‘on wait’ or ‘on hold’ till such time the Bank takes a decision on his
notice for resignation.
WP.No.5934 of 2009
26. Thus, in my view, the appropriate interpretation of Regulation 20 (2) is
that a notice for resignation, once tendered, would operate automatically and the
employees is under no obligation to continue in the services of the Bank from the
91st day from date of service of the notice upon the competent Authority. The only
exception would be a situation where the request for resignation is rejected. In this
case, admittedly, there has been no rejection of the request for resignation till date.
27. Letter dated 18.04.2007 which states that the petitioner is deemed not to
have been relieved until there was a specific communication about the acceptance
of the resignation, is in my view, contrary to the express language and intent of
Regulation 20. Nowhere does Regulation 20 envisage such procedure or process
wherein the employee is to be kept on tenterhooks about whether his letter of
resignation had been accepted or not. The Regulation proceeds on accepted norms
of service that once a request for resignation had been tendered, it is accepted
unless rejected within the stipulated notice period.
28. I am supported in the above view by Regulation 3 that makes an
exception in the case of an Officer in whose case disciplinary proceedings are
pending. In such a case any request for resignation shall be subject to express
approval by the competent authority. Thus, a clear distinction has been made by
WP.No.5934 of 2009
the Bank between those cases of employees with unblemished service and those
with charges pending against them. It is acceptable that in a latter situation, an
employee should not be permitted to escape the impact of disciplinary proceedings
simply by tendering his resignation and in such a circumstance, the operation of
the request for resignation is not automatic but shall take effect only if expressly
accepted by the Authority.
29. In this case, there were no disciplinary proceedings pending as on
05.03.2007 when the petitioner submitted his letter of resignation and the draft of
memo of charges has been issued to the petitioner only on 19.06.2007. Even those
have, admittedly, been dropped.
30.The mere fact that the petitioner has acquiesced to the transfer order
should in my view not be held against him. It is quite possible that the petitioner,
having put in close to two decades of service with the Bank, perhaps, complied
with the transfer order without appreciating the impact that his conduct would
have. His conduct was merely that of a cooperative employee and this must not
work to his detriment.
31. The petitioner was in service till 04.10.2007 and in my view, is entitled
to salary for that period. This would have no bearing whatsoever on the validity
WP.No.5934 of 2009
of the resignation sought for by him or the application of Regulation 20 (2) in his
case.
32. His absence from 05.10.2007 till date of termination cannot be held to
be unauthorised and has to be seen in the context of his request for resignation, the
express language of Regulation 20 and the subsequent cooperation by him in
assisting the audit at Coonoor and serving at the International Business Branch at
Chennai till 04.10.2007.
33. Order of termination dated 02.06.2008 is set aside and consequential
benefits shall be computed and paid over to the petitioner within a period of four
(4) weeks from today. This Writ Petition is allowed. Connected Miscellaneous
Petition is closed. No costs.
28.10.2021
Index:Yes/No
Speaking/Non Speaking order
kbs/rkp
To
1.Central Bank of India,
Rep. by its Chairman &
Managing Director,
Head Office, Chander Mukhi,
Nariman Point, Mumbai – 400 023.
WP.No.5934 of 2009
Dr.ANITA SUMANTH, J.
kbs/rkp
2.The General Manager,
Central Bank of India,
Zonal Office, Montieth Road, Chennai – 600 008.
3.The Assistant General Manager,
Central Bank of India,
Regional Office,
Rahejha Complex III Floor,
69, Anna Salai, Chennai – 600 008.
W.P. No.5934 of 2009
and
M.P. No.1 of 2009
28.10.2021
