TaxTMI 
TaxTMI 
1998 (3) TMI 697
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....0-1997 as per the convenience of the learned Counsels appearing for the parties. 3. The facts relating to Special Civil Application No. 5552 of 1997: This petition has been filed on behalf of 23 petitioners in all. They all claim to have been appointed as clerks on the basis of the selections held in pursuance of the notice inviting applications published through advertisement dated 14-3-1996 for which interview call letters were issued on 16-12-1996 and the interviews were held on 28th, 29th and 30th, December, 1996. Initially appointment was given to them on probation and the orders were issued on 16-1-1997. The petitioners have also come with the case that their performance was considered by the respondent-Bank in the meeting of the Executive Committee held on 10-5-1997 and having found their work to be satisfactory, orders were issued on the very same day, i.e., on 10-5-1997 giving them regular appointment on permanent basis and also giving them the regular scale of clerk. It has been alleged that the election of the new Board of Directors took place in June/July, 1997 and there was a change of group of power in the Bank and instead of Shri Dilipbhai Nanubhai Sangha....
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....respondent-Bank in the meeting of its Executive Committee held on 10-5-1997 and on their performance being found to be satisfactory, orders were issued on 10-5-1997 itself giving them regular appointment on permanent basis and confirming them in the regular scale of clerk. It is alleged that the elections of the Board of Directors were held in June/July, 1997 and with the change in the group in power, in place of Shri Dilipbhai Nanubhai Sanghani, Shri Manubhai Kotadia took over as Chairman on 25/26-7-1997 and immediately thereafter the decision was taken on 28-7-1997 itself to terminate the services of the petitioners and accordingly orders were issued on 28-7-1997. However, at present these petitioners are continuing in service on the strength of the interim order of This Court dated 1-8-1997. 6. Special Civil Application No. 5627 of 1997 has been filed by 4 petitioners who claim to have been appointed as clerks on the basis of the selection held in pursuance of the notice inviting applications vide advertisement dated 14-3-1996, for which interview call letters were issued on 16-12-1996, interviews were held on 28th, 29th and 30th December, 1996. According to the petitioners, ....
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....cial Civil Application No. 6135 has been filed by one petitioner, who had been initially appointed in the Bank as Clerk on 1-9-1957 and in due course he reached the position of General Manager on 30-5-1994. On 22-6-1994 the Registrar was informed about the wide experience and good work of the petitioner and the Registrar then granted approval for his appointment on 19-9-1994. On 6-9-1995 the respondent-Bank granted 3 years' extension to the present petitioner after his retirement. The petitioner then tendered his resignation on 19-6-1997 and the same was accepted on 5-7-1997. On 8-7-1997 the Life Insurance Corporation was intimated about the amount of gratuity and the same was given to the Gratuity Trust by Life Insurance Corporation on 26-7-1997 and the same was credited into the petitioner's Account. It is also the case of the petitioner that he is holder of Savings Account No. 258 with the respondent-Bank. Election of the new Board of Directors were held in June/July, 1997 and Shri Manubhai Kotadia took over as the new Chairman on 25/26-7-1997 and in the first meeting of the Board of Directors held on 28-7-1997 a decision was taken to freeze the petitioner's account.....
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.... (ii) Affidavit-in-rejoinder dated 8-8-1997 (by petitioner No. 2) (iii) Affidavit-in-sur-rejoinder dated 11-8-1997 (by respondent-Bank) Special Civil Application No. 5627 of 1997: (i) Affidavit-in-reply dated 6-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 11-8-1997 (by petitioner No. 1) Special Civil Application No. 5628 of 1997: (i) Affidavit-in-reply dated 6-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 11-8-1997 (by petitioner No. 1) Special Civil Application No. 6135 of 1997: (i) Affidavit-in-reply dated 26-8-1997 (by respondent-Bank) (ii) Affidavit-in-rejoinder dated 26-8-1997 (by petitioner) (iii) Affidavit-in-reply dated 28-8-1997 (by respondent-Bank) (iv) Affidavit-in-rejoinder to the second affidavit-in-reply dated 12-9-1997 (by petitioner) 10. It thus appears that the respondent-Bank has sought to traverse the claim of the petitioners and sought to defend the impugned orders of the termination passed against the petitioners in Special Civil Applications Nos. 5552, 5573, 5617, 5627 and 5628 of 1997 and in Special Civil App....
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....power to nominate such Directors, as provided in Section 80 of the Act, is satisfied. The Bank has to carry out its business within the parameters of the provisions of the Act and the objects for the incorporation of the respondent-Bank have been provided in Chapter II of the bye-laws. The objects are in the nature of doing the banking business. The manner of doing the business is based on co-operative movement. The bye-laws extensively provide as to what business the Bank shall carry out. The bye-laws provide for the constitution of the Board of Directors and their functions and duties also. The general guidelines provided by National Bank for Agriculture and Rural Development ('NABARD' for short) in respect of the Banks are that the Management cost of the Bank shall not be more than 2% of its overall functional cost. 1% cost of the functioning would be about Rs. 50/- lacs. In 1995-96, the expenses incurred by the respondent-Bank were about 2.41% towards the Management cost which has increased in the year 1996-97 to 3.41% and in case the present staff is continued it would go much higher. The function of the respondent-Bank is pure and simple business of banking and the ma....
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....f the rejoinder in Special Civil Application No. 5552 of 1997) Mr. Patel has submitted that the Central Government had introduced Comprehensive Crop Insurance Scheme from 1985-86 and as per this Scheme a District level Bank acts as the Nodal agency-Bank, i.e., agency for implementation of the said Scheme. Under the said Scheme the liability of indemnification is to be shared by the General Insurance Corporation of India which is a Government organization and the State Group Insurance Fund, which is to be created by the State Government itself. A copy of the Scheme has been enclosed as Annexure 'J' to the rejoinder referred to as above. Mr. Patel has submitted that a study of this Scheme would show that the respondent-Bank is acting as a direct agent for this Scheme of Crop Insurance introduced by the Government of India. Reference has been made to the various clauses of this Comprehensive Crop Insurance Scheme in support of the argument that the respondent-Bank is working as an 'agency' or 'instrumentality' of the State. Reference has also been made to several provisions of the National Bank for Agriculture and Rural Development Act, 1981 to highlight the na....
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....e Registrar in case of amalgamation, transfer, division or conversion of the Society. Section 17(e) vests in the Registrar power to direct amalgamation and re-organization of the Society in public interest. Section 20 provides for the cancellation of the registration by the Registrar on the conditions mentioned in this section. According to Section 76 the qualification for the appointment of the Manager, Secretary, Accountant or any other officer or employee of the Society and the conditions of service of such officers and employees shall be such as may, from time to time, be prescribed; prescribed means prescribed by the Rules. Under Section 2(18) "Rule" means Rules made under this Act. Section 76B provides for the removal of the officers by the Registrar as also clothes the Registrar with the power to direct the Society to elect or appoint a person or a qualified member in the vacancy caused by such removal. Section 81 provides for supersession of the Committees of a Society having Registrar as its member, and in respect of a Committee of a Society which does not have the Registrar as its member, it has been provided that if the Registrar is of the opinion that the Committee is m....
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....iety generally or preventing the affairs of the Society being conducted in a manner detrimental to the interests of the members, or of the depositors or the creditors thereof, it is necessary to issue directions to any class of Societies generally or to any Societies in particular, may issue directions to them, from time to time, and all Societies or the Societies concerned, as the case may be, shall be bound to comply with such directions. 14. The Gujarat Co-operative Societies Rules, 1965 (which will hereinafter be referred to as 'the Rules') have been framed to give effect to the various provisions of the Act including the sections to which reference has been made hereinabove, vesting powers on the Registrar and the manner in which the control is exercised by the Registrar with regard to the functioning of the Societies and their constitution, management and business. 15. Mr. Mangukia in support of his submissions on the question of maintainability of the petition that Amreli District Central Co-operative Bank Ltd., is not amenable to writ jurisdiction under Article 226 has placed reliance on the decision of the Supreme Court in Ajay Hasia v. Khalid Mujib Sehravard....
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....f the Society. However, the Supreme Court has found that for the purpose of determining the question as to whether any body or Corporation is an 'authority' within the meaning of Article 12 or not, the test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be made not as to how the juristic person is born but why it has been brought into existence. It may be a society registered under the Societies Registration Act or any other similar statute. Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. Mr. Mangukia next cited the decision of the Supreme Court in the case of Section Section Dhanoa v. Delhi Municipality 1981CriLJ871 . In this case, the question for consideration before the Supreme Court was as to whether the definition of public servant under Section 21(12) of the I.P.C. does not include a civil servant working on deputation with Co-operative Society and as to whether for his prosecution the....
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....utional and Parliamentary Studies. The Institute is registered under Societies Registration Act and the Supreme Court held that this Institute was neither an 'agency' nor an 'instrumentality' of the State so as to come within the purview of "other authority". It has also been observed that in a given case some of the features may emerge so boldly and prominently that a second view may not be possible. Reliance has also been placed by the learned Counsel for the respondent-Bank in the case of A.I.S.S.E. Association v. Defence Minister-cum-Chairman B.O.G., S.S. Society, reported in AIR 1989 SC 88. In this case the Supreme Court considered as to whether Sainik School Society is a State amenable to writ jurisdiction. The Supreme Court held that the employees of such Sainik School and Kendriya Vidyalaya form different classes and the plea of discrimination and equal pay equal work was not available. However, certain directions were given by the Supreme Court with regard to the conditions of the service of the employees. Mr. Mangukia placed strong reliance on V. I. Khalifa v. Satubha Tapubha Vaghela reported in, in which it has been held by the single Bench of This Court ....
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.... several cases have been considered and thereafter in para 15 it has been held that the point is finally concluded by a decision of the Division Bench of This Court in Letters Patent Appeal No. 375 of 1985 decided on 1/2-2-1994 wherein it was held that Gujarat State Fertilizer Co. Ltd. (G.S.F.C.) is not a State within the meaning of Article 12 of the Constitution. It has been thus held that Krishak Bharati Co-operative Ltd., cannot be said to be a State, or 'other authority' or 'instrumentality' of the State within the meaning of Article 12 of the Constitution of India and the petitions filed against it are not maintainable and on this ground alone the petitions were dismissed. The Division Bench while deciding this Letters Patent Appeal No. 375 of 1985 on the facts of that case came to the conclusion that manufacture of fertilizer was not a public duty, but is purely a manufacturing activity. It was a commercial undertaking run by the G.S.F.C. Ltd., and it manufactures and sells fertilizers just as other private and public sector Companies, who are in the same line. However, it appears that in this case the parties had arrived at an agreement between then which was....
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.... of Rajasthan High Court has held that the Central Co-operative Bank Ltd., Bharatpur was an instrumentality of the State for the purpose of Article 12 of the Constitution of India. In AIR1982Mad247 A. M. Ahamed and Co. v. Union of India the Division Bench of Madras High Court held that the National Agricultural Co-operative Federation of India Ltd., (NAFED) is a Co-operative Society registered under the Delhi Co-operative Societies Act, in relation to its activity as canalising agency for export of onions to Singapore and Malaysia is an 'authority' as contemplated by Article 12. It was also held on the basis that the activity of NAFED was as a canalising agency and in the Scheme of canalisation, it is really the Government which acts through the canalising agency. In 1991 (1) SLR 209 The Gurdaspur Central Co-operative Bank Ltd. v. The Presiding Officer, Labour Court, Gurdaspur and Ors. the writ petition was held to be maintainable against the Co-operative Society by the Punjab and Haryana High Court. In Hari Om v. State of M.P. and Anr. a Division Bench of the Madhya Pradesh High Court held that Madhya Pradesh Rajya Laghu Van Upaj (Vyapar Avam Vikas) Sahakari Sangha Maryadi....
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....ver, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute and whose powers and duties are defined by statute. So Government departments, local authorities, public authorities, and statutory undertakings, and Corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs." According to Supreme Court this is a striking departure from the English law, and under Article 226, writs can be issued to 'any person or authority' and further that it can be issued 'for the enforcement of any of the fundamental rights and for any other purpose'. Having reproduced Article 226 in this very para 82 at page 2207, the Supreme Court has noted the scope of this Article as has been explained by Subba Rao, J. in Dwarkanath v. I.T.O. [1965]57ITR349(SC) . While elaborating on this aspect of the matter, the Supreme Court has considered that Article 226 is couched in comprehensiv....
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....esh High Court after a thorough prospecting of the scope, the power of judicial review and to issue any prerogative writ, direction or order in exercise of the plenary power of the High Courts under Article 226 of the Constitution of India has summarised the judicial conscious as under: (i) The High Court's power under Article 226 of the Constitution is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any other purpose, even one for which another remedy may exist. (ii) Strictly speaking, the inhibitions recognised by the Courts in England upon the powers of the Courts to issue prerogative writs do not operate in India except as self-imposed restrictions by the Courts themselves; (iii) Wise and clear restraints on the use of extraordinary remedy have been indicated in various pronouncements of the Supreme Court and High Courts, and the High Courts will not go beyond those wholesome inhibitions. However, where the situation warrants or exceptional circumstances cry for timely judicial interdict or mandate, the Courts shall have the power to issue any writ, order or direct....
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.... the enforcement of the Government instructions entitling pay scale to non-Government employees at par with their counterpart in the Government Institutions were sought to be enforced against the Management of the private college. It was held that the employees are entitled for the enforcement of the parity. The Supreme Court in this case has concluded that when an element of public interest is created and the Institution is catering to that element, a teacher, being an arm of the Institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. The writ petition was accordingly held to be maintainable. In Misc. Mazdoor Sabha v. State reported in , the Division Bench of This Court (1993)ILLJ695Guj considered the question of maintainability of the writ petition under Article 226 of the Constitution of India in detail. The Division Bench considered that sewing thread division of Ahmedabad Jubilee Mills had stopped working and all the divisions are closed and, therefore, the employees of Diwan Chemtex Industries Ltd., were not to be given work after working hours with effect from 3-2-1988 and on this ground the services of all its emp....
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.... India or not, in view of the decisions of This Court in the case of V. 1. Khalifa v. Satubha Tapubha Vaghela (supra) and the unreported decisions in the case of L.K.L. Construction Co. Ltd. v. Krishak Bharati Co-operative Ltd. (supra) in Special Civil Application Nos. 259 and 260 of 1994 decided on 13-6-1994, the Division Bench decision of This Court in L.P.A. No. 375 of 1985 decided on 1/2 February, 1994, Special Civil Application No. 855 of 1996 decided on 6-8-1997 based on V. 1. Khalifa's case (supra) and the Division Bench Judgment of This Court reported in 1984 71 GLH 50 (supra), Special Civil Application No. 4255 of 1982 decided on 4-4-1984 and Special Civil Application No. 2885 of 1984 decided on 14-8-1984 referred in Paras 13-14 of the V. I. Khalifa's case (supra) and other decisions in this regard relied upon by Mr. Mangukia and several other decisions, which have been cited by Mr. Jayant Patel, it is clear that even if it is accepted as a proposition of law that a Co-operative Society or even a Company registered under the provisions of the Companies Act can be an "instrumentality" or "agency" of the State and it is not necessary that such body must be a creature....
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....e Reserve Bank of India is only for the purpose of banking business as required under the Banking Regulations Act. In Modern Food Industries (India) Ltd., Ahmedabad v. M. D. Juvekar (supra) the Division Bench of This Court was concerned with the case of a Government Company and in Narayan v. M. Section Co-op. Land Devep. Bank Ltd. (supra) the Bombay High Court considered the case of the Maharashtra State Co-operative Land Development Bank Ltd., which was a creature of the Statute. In M. K. Agarwal v. Gurgaon Gramin Bank reported in 1988 (1) SLR 790 the Supreme Court was directly concerned with the Gurgaon Gramin Bank and the State Rural Bank was constituted under Regional Rural Banks Act, 1976 and the Supreme Court found that it was made of State's 'flesh and bones' and was, therefore, an instrumentality of the State. Therefore, these decisions are of no avail in the present case. The decision rendered by the Division Bench of Rajasthan High Court in the case of Phool Chand, reported in 1986 (1) SLR 222 (supra), in which Bharatpur Central Co-operative Bank Ltd., Bharatpur was held to be an 'instrumentality' of the State, does support the contention of Mr. Jayant....
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....BARD, which had been held to be an 'authority' under Article 12 gives finance to the Gujarat State Co-operative Bank Ltd., and the Gujarat State Cooperative Bank Ltd., in turn finances the respondent-Bank for the purposes of distributing the same finance to the various primary level Co-operative Societies. This, according to Mr. Patel, is a Governmental function discharged by the respondent-Bank. (ii) The respondent-Bank is a District level Federal Bank and is also a specified Co-operative Society under Section 74C of the Act to which special importance is given by the Bank and under Section 74C the Government has the power to appoint a member of the Board or Director of the respondent-Bank and, therefore, the respondent-Bank should be taken as an 'agent' or 'instrumentality' of the State. (iii) The Central Government had introduced Comprehensive Crop Insurance Scheme from 1985-86 and as per this Scheme a District level bank acts as the Nodal agency-Bank, i.e., the agency for implementation of the said Scheme and under the said Scheme the liability of indemnification is to be shared by the General Insurance Corporation of India, which is a ....
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....ancy. (xi) The State Government and the Registrar has the powers to remove the Committee and appoint a Committee under Section 81. (xii) The Administrator under Section 81(2) has powers to exercise all or any of the functions of the Committee or of any officer of the Society and to take all such action as may be required in the interest of the Society, subject to the control of the Registrar. Mr. Patel has submitted that the aforesaid submissions have not been considered and dealt with in any of the earlier decisions on this point and all these submissions require an effective adjudication in detail. His contention is that on the basis of the aforesaid submissions, the respondent-Bank is certainly discharging functions of public importance related to Government functions, which is a relevant factor so as to classify the respondent-Bank as an 'agency' or 'instrumentality' of the State. 21. I have considered the aforesaid submissions. I find that even with the aid of the submissions, as aforesaid, it is not possible to hold that the functions, as aforesaid, discharged by the respondent-Bank are of public importance closely related to Government....
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....vernmental functions, whether any monopoly rights have been conferred by the State or protected by the State, but on consideration of the various submissions, which have been made by the parties in the present case, the Court is of the considered opinion that the respondent-Bank does not withstand the touchstone laid down by the Supreme Court and our own High Court and it does not meet the test so as to come within the ambit of 'other authorities' or 'agency' or 'instrumentality' of the State within the meaning of Article 12 of the Constitution of India. 22. However, the matter does not end here. The question still remains as to whether in the facts and circumstances of the case, any writ, order or direction can be issued against the respondent-Bank under Article 226 of the Constitution of India. Mr. Jayant Patel appearing on behalf of the petitioners has resolutely argued that the scope of Article 226 is wider than that of Article 32 of the Constitution of India. The jurisdiction of the Supreme Court under Article 32 can be invoked only in cases where there is a breach of the fundamental right and fundamental rights can be enforced only against those bod....
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....form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. Hence, as a principle the issue of any order or direction in the nature of mandamus cannot be denied on the ground that the body against which the writ is sought to be issued is not an 'authority' or 'agency' or 'instrumentality' of the State under Article 12 nor it can be denied on the ground that the duty to be enforced is not imposed by the statute. The following quotation on the development of this law by Professor De Smith has been referred by the Supreme Court in Para 21 of the judgment as under: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. (Judicial Review of Administrative Action 4th Edn. p. 540). The Supreme Court has shared this vie....
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....ment of public interest is created and such bodies do cater to that element of public interest and the employees of such Society are certainly the arms of such Co-operative Societies, through which the co-operative movement is taken care of and in such cases it cannot be said that there is no creation of the element of public interest. Reference has also been made to Vazir Sultan Tobacco Company Ltd. 's case (supra), a Division Bench decision rendered by the Andhra Pradesh High Court, in which the reasoning given in the aforesaid Supreme Court decisions has been summarised as has already been quoted in the earlier part of this order. And the last but not the least case cited by Mr. Patel in this regard is a Division Bench decision of our own High Court reported in (supra), which has also been discussed in the earlier part of this order and in view of the authoritative pronouncements by the Division Bench of This Court in this Misc. Mazdoor Sabha 's case (supra), This Court has no hesitation in holding that in a given case a writ order or (1993)ILLJ695Guj direction can be issued against a co-operative society like the respondent-Bank even if it is not an 'authority' ....
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....tioners before This Court and, therefore, these petitions cannot be thrown on the objection of suppression of facts. Even the objection with regard to alternative remedy cannot be sustained because in such like matters when the order is passed against the petitioners, they would be deprived of invoking the jurisdiction of This Court under Article 226 when there is no other alternative adequate equally efficacious remedy. In absence of any such equally efficacious remedy, the Court does not find it a fit case to throw away these petitions on the question of alternative remedy and this objection is not found to be tenable. Thus, all the preliminary objections raised on behalf of the respondent-Bank fail. 24. Coming to the merit of the case, in five out of six petitions, i.e., Special Civil Application Nos. 5552, 5573, 5617, 5627 and 5628 of 1997, the grievance has been raised against the termination of the petitioners and in the 6th petition, i.e., Special Civil Application No. 6135 of 1997 the prayer has been made by the Ex-General Manager of the respondent-Bank so as to allow him to operate his Savings Bank Account No. 258. I would, therefore, first deal with the 5 Special Civil....
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....in the regular scale vide orders issued on the same date, i.e., 10-5-1997. While they were so continuing as Mantris, their services were terminated on 28-7-1997 in the same manner as the services of the 23 petitioners, concerned in Special Civil Application No. 5552 of 1997. Four petitioners, who are concerned in Special Civil Application No. 5617 of 1997, were appointed as Clerks on the basis of the selection held in pursuance of the notice inviting application through advertisement dated 14-3-1996 for which interviews were held on 28th, 29th, 30th, December, 1996 and on the basis of their selection, they were also appointed on probation vide orders dated 16-1-1997. Thereafter, the Executive Committee met on 10-5-1997 and orders were issued on 10-5-1997 itself giving them regular appointment on permanent basis and confirming them in the regular scale of clerk. Their services were also terminated on 28-7-1997 in the like manner, as aforesaid. The 4 petitioners, who are concerned in Special Civil Application No. 5627 of 1997, were also appointed as Clerks on the basis of the selection held in pursuance of the notice inviting applications dated 14-3-1996 in the same manner as aforesa....
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....ged irregularities committed by the predecessor Board of Directors and the Executive Committee while inviting applications contrary to the requirements of the Bank, while holding selections, while issuing initial appointment orders and thereafter making them regular etc., and it has also been stated with regard to the 5 petitioners concerned in Special Civil Application No. 5628 of 1997 that while they were working as daily wagers since November 1996 they were made permanent by the predecessor Board of Directors on 19-7-1997 only. In any case, the factum of the appointment of these 45 employees as Clerks, Mantris and Peons on 16-1-1997,12-3-1996,16-1-1997 and 15-5-1997 and making 5 daily wager peons, who were working as such since November 1996, as permanent on 19-7-1997 and their termination on 28-7-1997 is not disputed. 26. Whatever may have been the objections with regard to the selections and appointments given to these petitioners, the fact is that these 45 petitioners had been given appointments in the respondent-Bank and they were continuing in the service of the respondent-Bank from the dates, as aforesaid, irrespective of the fact whether they are treated as ad hoc or t....
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....be given at the discretion of the Board of Directors. Every employee, if he desires will voluntarily retire from service of the Bank after completion of 30 years of his service. (8) An employee before retirement shall be granted the privilege leave due to him on his applying for it or salary and allowances in lieu thereof. The averments made in Para 2.2 of the Special Civil Application have been replied in Para 28 of the affidavit-in-reply dated 4-8-1997 filed by the respondent-Bank, which reads as under: 28. With reference to averments made in Para 2.2 of the petition, I offer no comments. I crave leave to refer to and reply upon the provisions of the Order at the time of hearing of this petition. It is, therefore, clear that the factum of the registration of the bye-laws and the bye-law 22 with regard to termination of employment, as has been quoted by the petitioners, has not been disputed. According to Standing Order No. 22(1) appointment of the permanent employee or probationer can be terminated by one month's notice or on payment of one month's wages in lieu of notice. The reason for termination under clause (1) is required to be recorded in wr....
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....f the respondent-Bank against the manner in which the vacancies were advertised and the selections were held and the appointments were given to these petitioners by the predecessor Board of Directors, one fails to understand as to how the new Board of Directors immediately upon entering the office took up the matter as if it was the first item on their agenda to terminate their services and the same was put into action and sought to be accomplished on the same date, i.e., on 28-7-1997. In such like matters, when the country is facing the grave problem of unemployment, employment is a very valuable right related to livelihood. If at all the new Board of Directors had found in a period short of 3 days of its taking over, that the selections and appointments given to the petitioners were improper or that there was any irregularity committed by the earlier Board of Directors in appointment of these petitioners or that their selection was not in accordance with law or that appointments had not been given to them in accordance with the bye-laws, and the services of these petitioners were required to be terminated for any reason including the grounds of lack of eligibility on the part of ....
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....is selection or appointment suffers from any infirmity or that it was irregular or that an employee did not possess a particular requirement in respect of eligibility pertaining to age, qualification or experience, that by itself would not divest him of the right of opportunity. Merely by alleging that any fraud has been committed or perpetrated, it cannot be assumed that in fact a fraud had been committed. Those cases in which any fraud is committed or a false document is given or by making a false assertion or withholding of a disclosure, which could have disentitled him from seeking employment, would stand on a different footing and therefore, it is not necessary for This Court to consider the cases, which have been cited on behalf of the respondent-Bank in which the decisions have been taken on the premises that a fraud had in fact been perpetrated. The essence of the matter is that the petitioners in the present cases had appointments based on selection and were continuing in the employment since 1996/1997, as have been given in the earlier part of the order and therefore, if their services were sought to be terminated on any of the grounds, which are now disclosed before This....
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....rounds on which the action is sought to be taken to his prejudice. It has more to do with the duty with which the authority deciding to take action is charged, such requirement of giving opportunity, giving action inspired notice or following the principles of natural justice, may be burdensome to some minds but that price, a small price indeed has to be paid, if at all, we mean the rule of law to prevail. The Court has, therefore, no hesitation in holding that the petitioners were entitled to an opportunity of hearing, at least an action inspired notice, and the minimum requirements of principles of natural justice. Admittedly, none of these requirements have been complied with by the respondent-Bank at the time of passing the termination orders with regard to these 45 petitioners, upon whom the termination was inflicted at a stretch on the same day, i.e., on 28-7-1997 so as to make this order a fait accompli against them and, hence their termination as such cannot be sustained in the eye of law. 29. It may also be mentioned that during the course of hearing a suggestion was made to the learned Counsel for the respondent-Bank that if the Bank so chooses it was open for them to ....
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....d custom also the respondent-Bank was under an obligation to follow the principles of natural justice before passing the orders and appraise the concerned petitioners as to on what ground their services were sought to be terminated. In Praga Tools Corporation v. C.V. Imanual, reported in (1969)IILLJ479SC the Supreme Court has observed that the writ could be issued against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body and according to the observations of Subba Rao, J. in Dwarkanath v. Income Tax Officer, reported in , Article 226 confers a wide power on the High Courts to reach injustice wherever it is found and, therefore, This Court considers it to be a fit case for issue of the writ against the respo [1965]57ITR349(SC) ndent and accordingly all these Special Civil Applications are allowed and the termination orders passed qua each of the petitioners in these 5 Special Civil Applications on 28-7-1997 are hereby quashed and set aside and it is ordered that all the petitioners shall be entitled to all consequential benefits. Rule is made absolute in all these 5 Special Civil Applications, i.e., Spe....
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....en further stated that the petitioner was very close to the Chairman and, therefore, his resignation had been got accepted by the Executive Committee though no such business was on the agenda. It is further stated that the petitioner was favoured by making payment of terminal benefits without verifying whether the petitioner would be liable to any liabilities or not and the order of payment of gratuity is illegal, the Board had decided without going into the validity of the Payment of the Gratuity Act. If the petitioner gives appropriate security, he may be permitted to withdraw the said amount. 32. It is thus obvious that the real dispute is about the security which had not been furnished by the petitioner in terms of the document dated 15-5-1996, which had been annexed as Annexure R/l with the affidavit-in-reply dated 28-8-1997 and the respondent-Bank is of the opinion that the petitioner was guilty of some misconduct. On behalf of the petitioner, it has been stated that he had given the security of the amount for which he was required to give security at the time of his appointment and even now he was prepared to give the security for a sum of Rs. 20,000/- as has been mention....