JUDGMENT
Ashok Kumar Mathur, J.
1. The petitioner has filed the present writ petition challenging his order of termination dated 23rd April, 1983 (Annexure-1). The petitioner was employed as Clerk in the respondent Bank from 11th January, 1972. The petitioner worked in Central Accounts Department at Bikaner from 11-1-1972 to {4-2-1982 and thereafter at the Jasurar Branch till the order of termination was issued.
2. The petitioner has challenged this order by this petition and has also challenged the validity of para 5 of the Shastry Award, which was. entered into between certain Banking Companies and their Workmen given by the All India Industrial (Bank Disputes). Para 522 is reproduced as under:
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.
3. The petitioner has also challenged his order of termination on the ground of malafide, and violation of Articles 14 and 16 of the Constitution as well as Section 25G of the Industrial Disputes Act. A detailed reply has been filed by the respondent & an objection has been taken by the respondent Bank that the writ petition is not maintainable because the Shastry Award is not enforceable. Secondly that the validity of this award cannot be challenged because UOI & the Industrial Tribunal being not parties before this Court. Ground of estoppel has also been raised because the petitioner has accepted the cheque, therefore, it is not open for him to challenge. It has also been pointed out that the petitioner’s services were terminated on account of the fact that the petitioner has lost the confidence of the Bank and he is in habit of making false complaints:
4. I need not go into intricacies of the facts because simple question before me is whether the order of termination is sustainable or not. The order of termination Annexure-1 is reproduced as under ;
We have to advise that as you have forfeited the trust and confidence of the Bank, your services are hereby terminated with immediate effect. In terms of paragraph 522 of the Shastri Award, we are paying you 3 months’ pay and allowances being Rs. 4980.15P in lieu of notice. Though your termination cannot be deemed to be “retrenchment” within the meaning of Section 2(0) of the Industrial Disputes Act, 1947, yet with a view to avoiding any legal complications, you are hereby being paid one month’s wages being Rs. 1660.05P in lieu of one month’s notice in terms of Section 25F(a) of the Act ibid and a sum of Rs. 9130.30P being retrenchment compensation as required in terms of Section 25F(b) of the Act ibid. Three cheques for the aforesaid amounts are enclosed;
Please note that the amounts outstanding against you towards loans availed by you from the Bank will be adjusted out of the permissible amount of your Provident Fund and gratuity payable to you.
5. Recently their Lordships of the Supreme Court had an occasion to directly deal such question and their Lordships have held in most unabiguous words that termination of such kind is not sustainable in the present democratic set up. In this connection reference may be made to West Bengal Electricity Board v. Desk Bandhu Ghosh . The provision in the above case was almost analogus with the present case. The regulation is reproduced as under:
34. In case of a permanent employee, his services may be terminated by serving three months’ notice or on payment of salary for the corresponding period in lieu thereof.
This regulation is almost identical with the first paragraph 522 of the Shastry Award in the present, case which have been reproduced in foregoing paras. Their Lordships have observed as under:
4. We are not impressed with the submission of the learned counsel for the Board. On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked ‘hire and fire’ rule, the time for banishing which altogether from employer – employee relationship is fast approaching. Its only parallel is to be found in the Hentry VIII Class so familiar to administrative lawyers. In Moti Ram Deka v. North East Frontier Railway. . Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to Article 311(2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended Article 14 of the Constitution. Since then Article 14 has been interpreted in several decisions of this Court and confirment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this court as offending Article 14. In S.S. Muley v. J.R.D. Tata (1979)2 Serv. LR 438 : 1980 Lab IC(11) P.B. Sanwat, J. of the Bombay High Court considered at great length Regulation 48(a) of the Air India Employee’s Service Regulations which conferred similar power on the Corporation as Regulation 34 confers on the Board in the present case. The learned Judge struck down Regulation 48(a) and we agree within his reasoning and conclusion. In Workmen Hindustan Steel Ltd. v. Hindustan Steel Ltd. this Court had occasion to hold that a standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an enquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employee the workman was violative of the basic requirement of natural justice.
6. Similar view has been taken by the Full Bench of this Court in Bhanwar Lal etc. v. R.S.R.T.C. and Ors. 1984 RLR 619. Thus in the face of the present position of law as enunciated by their Lordships of the Supreme Court there is no go except to quash the order of termination.
7. Mr. Vyas appearing for the respondent Bank has raised number of objections like maintainability of the writ petition that the provisions of Award cannot be enforced. In this connection he has relied on K.M. Mukherjee v. State Bank of India 1969(1) LLJ 50 and S. Palani v. Indian Bank and Anr. 1980(1) LLJ 187. But all these arguments are devoid of any merit, in view of the clear proposition laid down by their Lordships of the Supreme Court.
8. The learned counsel for the respondent Mr. Vyas has raised ground of estoppel that the petitioner has accepted the cheque, therefore, he should be estopped from challenging his order of termination. In this connection Mr. Vyas has invited my attention to Borhan Kumar v. Assistant Personnel Officer , Pramod Ranjan Roy v. Chairman Life Insurance Corporation of India and Ors. and Nikunj Behari Bhattacharee v. The State of Tripura and Anr. AIR 1956 Tripura 33. This ground is also devoid of merit and in view of the clear proposition of law laid down by their Lordships of the Supreme Court, the acceptance of cheque by the employee in ignorance of law cannot estop from challenging the same. Recently their Lordships of Supreme Court in the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. have held as under:
That there can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustanance of all laws. Its provisions are conceived in public interest and are intended to serve a publice purpose. The high purpose which the Constitution seeks to achieve by confirment of fundamental rights is not only to benefit individuals, but to serve the larger interests of the community. No individual can barter away the freedom conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise that he does not possess or will not enforce any particular fundamental right cannot create an estoppel against him in that or any subsequent procedure.
The doctrine of estoppel is based on the principle and consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides on day to day transactions.
9. This in view of this position of law the principle of estoppel cannot prevent the petitioner from agitating his grievance by this writ petition. The learned counsel for the petitioner has also cited Behram Khursid Pesikaka v. State of Bombay Basheshar Nath v. Commissioner of Income Tax Delhi and Rajasthan and Ors. and Kameshwar Prasad and Ors. v. State of Bihar and Anr. . But in view of the fact that order of termination is in clear contravention of law and violative of Articles 14 and 16 of the Constitution, such kind of pleas of estoppel are irrelevant.
10. Next question that arises is whether Clause (1) of para 522 should be struck down or not In this connection Mr. Vyas has invited my attention to number of cases and has argued that this clause has been declared valid has further submitted that validity of this clause cannot be examined in the absence of the Union of India and the Central Industrial Tribunal being party before this writ petition. I need not go into the validity of this clause because in view of the clear proposition of law laid clown by their Lordships of the Supreme Court this Clause (1) of the Shastry Award has itself become meaningless and no order of termination on the basis of such clause can be sustained. Thus without examining the validity of clause 1 of para 522 of the Shastry Award, I hold that the order of termination passed by the Bank is absolutely illegal & deserves to be quashed. Moreover after the decision of Hon’ble Supreme Court in West Bengal Electricity Board v. Desh Bandhu Ghosh such clause has become redundant and if Bank still wants to adhere to such Henry VIII clause they may bless themselves.
11. In the result I quash the order of termination dated 23rd April, 1983. The petitioner is entitled to be reinstated with full back wages. There is no order as to costs.