ORDER
1. The petitioner joined the services of State Bank of India in the year 1979 as Probationary Officer. On completion of the probationary period, the petitioner was appointed in Junior Management Grade Scale I. When the petitioner was working at Varanasi in the year 1989, he applied for 14 (fourteen) days leave from 4-12-1989 to 22-12-1989. After the expiry of the said period, the petitioner availed extraordinary leave on loss of pay from 23-12-1989 to 31-12-1989 and sick leave on medical grounds from 1-1-1989 to 12-2-1990. Thereafter, the petitioner submitted another application as per the instructions of the Regional Manager for extraordinary leave on loss of pay (hereinafter referred to as ‘EOL’)
from 13-2-1990 to 12-6-1990. The petitioner also submitted an application for his transfer to Bangalore. In reply to the request for grant of EOL, the Regional Manager vide his letter dated 16-5-1990 informed the petitioner that his request for EOL could not be sanctioned and he was further informed to report for duty immediately failing which action would be taken against him. The petitioner after receiving the above said letter submitted his reply. Thereafter, the Chief General Manager by his letter dated 12/14-12-1990 has intimated the petitioner that he has forfeited his appointment in terms of Rule 92 of the State Bank of India (Supervising Staff) Service Rules (hereinafter referred to as ‘Rules’). The said letter was served on the petitioner at Bangalore. The petitioner has filed this writ petition challenging the said action and also sought for declaration that Rule 92 of the Rules is violative of Article 14 of the Constitution of India and as such is unconstitutional.
2. The learned Counsel for the respondents in the statement of objections has stated that this Court has no jurisdiction to entertain the writ petition under Article 226 of the Constitution of India challenging the impugned order as the cause of action has arisen at Lucknow and at Varanasi within the jurisdiction of Allahabad High Court where the petitioner was working. Further, it is stated, since the State Bank of India has not been made a party, the petition is liable to be dismissed for misjoinder and non-joinder of necessary parties. It is further stated that since the petitioner has overstayed the leave, he is liable for forfeiture of his appointment and accordingly, he was informed by letter dated 12/14-12-1990 that he has forfeited his appointment in terms of Rule 92 of the Rules.
3. Before considering whether the action of respondents in ordering forfeiture of appointment of the petitioner is correct or not, I propose to consider whether this Court has jurisdiction to entertain this writ petition under Article 226 of the Constitution of India. The petitioner was working at State Bank of India’s Lucknow Circle when his services were ordered to be forfeited in terms of Rule 92 of the Rules. But, the said order was served on the petitioner at Bangalore. The contention of the learned Counsel for the respondents is that since the order was passed by the Chief General Manager at Lucknow, it is only the High Court of Allahabad that has the jurisdiction to entertain the writ petition. The impugned order, as stated earlier, was served on the petitioner when he was at Bangalore though the same was passed at Lucknow. Similar question came up for consideration before the Gujarat High Court in the case of Modern food Industries (India) v M.D. Juverkar . The facts in this case are almost identical to the facts in the above said case insofar as it relates to jurisdiction. The High Court of Gujarat considering several decisions of the Supreme Court has held as follows.-
“It is therefore plain from the above discussion that passing of a dismissal order is not enough, it cannot become effective unless
it is published and communicated to the concerned employee. If an order of dismissal remains on the file of the authority passing it, it would not have effect unless the concerned employee is informed about the same and told not to report for work. In the present case also if the dismissal order were to remain on the file of the Chairman-cum-Managing Director of appellant No. 1, Company at New Delhi and not be communicated to its Calcutta Unit, the employee would report for work and the Officer in Charge of the Calcutta Unit would obviously permit him to work. Only after the order is forwarded to Calcutta Unit, the Officer in charge of that unit would refuse to permit the concerned employee to render service in which case the said employee would have to be informed about the termination of his service. Therefore, one of the essentials of an effective dismissal order is communication thereof to the concerned employee and this, in our view, constitutes an important link in the chain of events constituting the cause of action. We are, therefore, of the opinion that the learned Single Judge was right in coming to the conclusion that since the impugned order of dismissal was served on the respondent-employee at Ahmedabad and the Ahmedabad unit of the Company was directed to pay 90 days’ notice pay to him, the respondent-employee was entitled to move this Court for an appropriate relief necessitated on the communication of the impugned order.
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We are pained to note that even after the clear pronouncement of the Supreme Court in Central Inland Water Transport Corporation Limited and Another v Bhojo Nath Ganguly and Another, holding Rule 9(i) of the Service, Discipline and Appeal Rules of the Corporation violative of Section 23 of the Contract Act and Articles 14 and 16 of the Constitution, the appellants have tried to support an order based on a similar rule not only before the learned Single Judge but also in appeal before us on the technical ground of maintainability of the petition. We fail to understand how it would advance the interest of the first appellant-Company if the respondent-employee is relegated to a suit or asked to approach the Delhi or the Calcutta High Court if the fate of the litigation stands concluded by the aforesaid decision of the Supreme Court. In fact without making it a prestige issue if the appellants had taken a timely decision they would not have been required to pay salary and allowances to the employee without taking work from him at least for the period subsequent to the decision of the Supreme Court”.
I am in full agreement with the view taken by the Gujarat High Court. In the case on hand also the impugned order was served on the petitioner at Bangalore and therefore, the petitioner is entitled to move
this Court for an appropriate relief under Article 226 of the Constitution of India.
4. The respondents in their statement of objections contended that this petition is liable to be dismissed on the ground of misjoinder and non-joinder of necessary parties since the State Bank of India which is the employer of the petitioner has not been made a party in this writ petition. The impugned order has been passed by the Chief General Manager who is the Appointing Authority. The Chairman of the State Bank of India also has been impleaded as respondent 1 in this writ petition. If that is so, the interest of State Bank of India has been represented by its Chairman and also by the Appointing Authority who has passed the impugned order. Therefore, it cannot be said that proper parties have not been made as parties in this writ petition. Hence, I reject the contention of the learned Counsel for the respondent that this petition is liable to be dismissed for misjoinder and non-joinder of necessary parties.
5. The next principal contention which arises for consideration in this writ petition relates to the validity of Rule 92 of the Rules. In order to examine this contention it is useful to examine Rule 92 of the Rules which reads as follows.-
“An employee, who overstays his leave, except under circumstance beyond his control, shall not be entitled to any salary or allowance for the period of his absence without leave, and shall also be liable for forfeiture of his appointment or to any of the penalties specified in Rule 49 of the Rules”.
From the reading of the above rule it is clear that if an employee overstays his leave except under circumstances beyond his control, he is liable for forfeiture of his appointment or to any of the penalties specified in Rule 49. In order to ascertain whether there are any justifiable circumstances for overstay of leave, an enquiry is necessary. The employer before ordering forfeiture of the appointment, ought to have formed an opinion that there were no justifiable circumstances for the employee to overstay his leave by holding an enquiry after notice to the employee. In the case on hand no opportunity has been afforded to the petitioner. The Supreme Court in the case of O.K. Yadau v J.M.A. Industries Limited had an occasion to consider similar provision with reference to the earlier decisions of the Supreme Court. In the said decision it is held as follows.-
“In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant’s plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any
conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice”.
The Supreme Court in the case of Hindustan Paper Corporation v Purnendu Chakrobarty and Others has held as follows.-
“Mr. P.P. Rao, Senior Counsel appearing for the appellant-Corporation fairly, in our view rightly, conceded that the Rule, namely Rule 23(vi)(E) has to be construed by reading into it the principles of natural justice. Otherwise, by reading it literally, it would amount to arbitrary and unreasonable vesting of authority and liable to be struck down. According to the learned Counsel, if only the first respondent had properly responded to the show-cause notice the Corporation might not have taken the extreme step of cutting off the lien of the appointment of the first respondent with the Corporation.
We consider that in view of this concession made by the learned Counsel on behalf of the appellant-Corporation that the said Rule must be read and given effect to, subject to the compliance of the principles of natural justice, it cannot be said that the Rule is arbitrary or unreasonable or ultra vires Article 14 of the Constitution. In other words, before taking action under the said clause, an opportunity should be given to the employee to show cause against the action proposed and if the cause shown by the employee is good and acceptable, it follows that no action in terms of the said clause will be taken. Understood in this sense, it cannot be said that the said clause is either unreasonable or violative of Article 16 of the Constitution”.
In the case of Uptron India Limited v Shammi Bhan and Another the Supreme Court had an occasion to consider Clause 17(g) of the Certified Standing Order which is similar to the impugned Rule (Rule 92
of the Rules). Clause 17(g) which is the subject-matter of the above said decision reads as follows.-
“The services of a workman are liable to automatic termination if he overstays on leave without permission for more than seven days. In the case of sickness, the medical certificate should be submitted within a week”.
Considering the said clause with reference to all earlier decisions, the Supreme Court has held as follows.-
“Conferment of “permanent” status on an employee guarantees security of tenure. It is now well-settled that the services of a
permanent employee, whether employed by the Government or Government company or Government instrumentality or statutory corporations or any other “authority within the meaning of Article 12, cannot be terminated abruptly and arbitrarily, either by giving him a month’s or three months’ notice or pay in lieu thereof or even without notice, notwithstanding that there may be a stipulation to that effect either in the contract of service or in the Certified Standing Orders.
There is another angle of looking at the problem. Clause 17(g), which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that “the services are liable to automatic termination”. This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime, fallen ill? These are the questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave”.
In my opinion, in view of the decision referred to above, it is just and necessary that the principles of natural justice had to be read into the offending Rule i.e. Rule 92. Even otherwise from the reading of Rule 92 of the Rules it is clear that the management has to establish that the overstay of leave was not due to the circumstances beyond the control of the employee, before ordering forfeiture of appointment. Admittedly, no opportunity has been afforded to the petitioner and no enquiry has been held in order to come to the conclusion that there were no circumstances beyond the control of the petitioner for his absence. The petitioner is a permanent employee of the State Bank of India. Therefore, the services cannot be terminated without following the principles of natural justice.
6. From the facts of this case it is seen that the petitioner insisted for a transfer to Bangalore relying upon certain circulars. In the statement of objections, it is stated that the petitioner is a lucrative investor and investment advisor and the reason for his shifting to Bangalore is to carry on business at Neo Emergient Investment Centre than as a person following his wife. Though this statement is made, no material has been produced to show that the petitioner is a lucrative investor. But, at the same time, the petitioner has not produced any material to show that he was not engaged in any job or business after the forfeiture of his appointment. The conduct of the petitioner in insisting for transfer, in my opinion, disentitles any monetary benefit. Further, it is the petitioner who has to blame himself for the impugned action. Under these circumstances, I find that the petitioner is not entitled for back wages.
7. In the result, I pass the following order.-
(i) Writ petition is allowed;
(ii) The letter No. PER IR 3679, dated 12/14-12-1990 issued by respondent 2 is quashed;
(iii) Respondents are directed to reinstate the petitioner in the services of the Bank within one month from today;
(iv) The petitioner is not entitled for back wages.