Javed vs Syndicate Bank on 11 July, 2013

Bombay High Court

Javed vs Syndicate Bank on 11 July, 2013
Bench: B. P. Dharmadhikari, A.S. Chandurkar
wp4472.12.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

WRIT PETITION NO.4472 OF 2012

PETITIONER: Javed S/o Edirish Memon, aged

about 34 years, Resident of
C/o Shri S. Nisaruddin, Qtr.
No.L-57/3, Belly Shop, Railway
Colony, Near Shiv Mandir,

Motibag, Nagpur-440 004.

-VERSUS-

RESPONDENTS: 1 Syndicate Bank, Through its

General Manager (Personnel
ig Deptt), HO, Manipal 570104, Udipi
District (Karnataka State).
2 Syndicate Bank, through its
Deputy General Manager,
Regional Office, 90, Canal

Road, Ramdaspeth, Nagpur-440

010.
3 Central Bureau of
Investigation, Head Office
Zonal Bhopal Zone, Anveshan

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 1

 Javed vs Syndicate Bank on 11 July, 2013

Parisar, Char Imli, Main Road,

Bhopal.

Mr. R. S. Parsodkar, Advocate for the petitioner.

Mr. Anilkumar, Advocate for Respondent nos.1 & 2.
Mr. S. B. Ahirkar, Advocate for respondent no.3.

CORAM: B.P.DHARMADHIKARI AND A.S. CHANDURKAR,JJ.

DATE OF RESERVING THE JUDGNEMT ON: 2ND JULY, 2013. DATE OF PRONOUNCING THE
JUDGMENT ON: 11TH JULY 2013.

ORAL JUDGMENT : (Per A. S. Chandurkar, J)

1. Rule. Rule is made returnable forthwith and heard by consent of the parties.

wp4472.12.odt

2. Heard Shri Parsodkar for

Shri Anilkumar Advocate for respondent nos.1 & 2 and Shri S. B. Ahirkar, Advocate for respondent
no.3.

3. The facts relevant for adjudicating the present controversy are that the petitioner was appointed
as a Probationary Officer with the respondent no.1 - Bank on 27-9-2008. During his course of
employment with the respondent no.1 - Bank, the petitioner was selected for appointment on the
post of Dy. Advisor (Banking and Foreign Trade)in the Central Bureau of Investigation. This
appointment was to be on contract basis. The petitioner was informed about his aforesaid selection
on 19-4-2011.

The petitioner, therefore, on 3-5-2011, tendered his resignation from service to the respondent no.1.

The said request for resignation was, however, rejected by respondent no.1 on the ground that
investigation in an ATM fraud case was pending against the petitioner. Subsequently, the
respondent no.1 - Bank held disciplinary proceedings against the petitioner in terms of its Discipline

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 2

 Javed vs Syndicate Bank on 11 July, 2013

and Appeal Regulation, 1976. In these proceedings, the disciplinary authority held the petitioner
guilty of misconduct and imposed penalty of reduction of two stages in the time scale of his pay with
immediate effect for a period of two years. The aforesaid wp4472.12.odt 3/17 penalty was
implemented by the Bank vide communication dated 24-1-2012 and on the same date, the petitioner
accepted the aforesaid punishment and informed the same to the respondent no.1 - Bank.

4. The petitioner, thereafter, on 24-1-2012 sought to be relieved from the services of the respondent
no.1 - Bank on the ground that the disciplinary proceedings had been concluded and the
punishment had been accepted by him. On 14-3-2012, from the respondent no.1 - Bank relieved the
petitioner services. The memorandum of relieving dated 14-3-2012 reads as under:-

"Sri Javed Memon, Asstt. Manager

Emp.no.547857 stands relieved from
services of the bank today on

14.03.2012 after office hours in terms of RO:PSO letter no.220/NRO/PSO/F- 2204/2012 Dated
14.03.2012."

The aforesaid memorandum referred to Letter No.2120/NRO/PSO/F-2204/2012 dated 14.03.2012.

The relevant extract of the aforesaid letter No. 2120/NRO/PSO/F-2204/2012 dated 14.03.2012 is as
follows:-

"As you are aware, there was an instance of loss/theft of ATM (Debit) cards to be
issued to our customers and misuse of those debit cards to an extent of Rs.199900/-
at Bilaspur branch from 21.12.2009 to 14.05.2010.

The Bank has filed a complaint before the local Police Authority to cause an investigation. You were
working as Asst. Manager of the said branch during that period. The matter is under investigation
by the local Police wp4472.12.odt 4/17 Authority. During the course of investigation, the Bank will
be called upon to ensure the presence of any/ll the employees/officers working at that point of time
and hence your presence would be required by the Police Authorities for purpose of
investigation/questioning. Therefore, you should make yourselves available for the same by keeping
the Bank informed about your whereabouts/all movements under copy to the Station Head of the
Bilaspur Police Station. The Bank has reported the said fraud to Reserve Bank of India also and
Reserve Bank of India has also been monitoring the progress in investigation at regular intervals.

Under above circumstances the ig Competent Authority has accepted your resignation without
prejudice to the contention mentioned above. Accordingly you are relieved/discharged from the
services of the Bank on acceptance of your resignation but subject to the condition mentioned
above."

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 3

 Javed vs Syndicate Bank on 11 July, 2013

5. In view of the aforesaid relieving letter, the petitioner further sought information under the
provisions of The Right to Information Act, 2005 as regards pendency of any enquiry against him
and further details about his relieving. The same were answered by the respondent no.1 - Bank.

On 25-6-2012, the respondent no.3 - CBI informed the petitioner that the competent authority had
cancelled the petitioner's appointment on the post of Dy. Advisor (Banking and Foreign Trade) on
contract basis. Thereafter, the petitioner on 3-8-2012 sought restoration of his services with the
respondent no.1

- Bank. The respondent no.1 - Bank informed the wp4472.12.odt 5/17 petitioner on 14-8-2012 that
as he had resigned from service, there was no question of he being again restored in service. On this
basis, the petitioner has approached this Court challenging the order of relieving dated 14-3-2012
issued by the respondent no.1 - Bank and has sought reinstatement in service with back wages.

6. The respondent no.1 - Bank in its reply has submitted that the petitioner having been relieved
from service after there was no relationship of master and servant, and acceptance of his
resignation, he could not be reinstated in service. It was stated that the relieving order was
unconditional and the petitioner was merely informed that in future, he would be required to
cooperate in the proceedings in the Court of law as a witness. The respondent no.3 in its reply has
stated that the order of the respondent no.1 - Bank relieving the petitioner conditionally, had been
considered by the competent authority and after going through the conditions imposed therein, it
had been decided to cancel the appointment of the petitioner.

7. Shri Parsodkar, the learned Counsel for the petitioner urged that relieving order dated 14-3-2012
was conditional in nature and it required the petitioner to observe the stipulations contained in
wp4472.12.odt 6/17 the letter referred to in the memorandum of relieving. He further relied upon
the answers given to the petitioner under the provisions of The Right to Information Act, 2005 in
which it was stated that the petitioner had not been clearly relieved from the service of Syndicate
Bank. He, therefore, urged that in view of the aforesaid conditional relieving, the respondent no.3
cancelled the petitioner's appointment and hence, the petitioner was entitled to restoration of his
services with the respondent no.1

- Bank.

ig The learned Counsel has relied upon the Judgments of the Hon'ble Apex Court in the case of
Srikantha S.M. Versus Bharath Earth Movers Ltd., reported in (2005) 8 Supreme Court Cases 314
and Power Finance Corporation Ltd. Versus Pramod Kumar Bhatia, reported in (1997)4 Supreme
Court Cases 280.

8. Shri Anilkumar learned Counsel for the respondent nos.1 & 2, on the other hand, opposed the
submissions made on behalf of the petitioner.

According to the learned Counsel, the petitioner having been relieved from service on 14-3-2012,
there was severance of relationship of master and servant between the petitioner and the

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 4

 Javed vs Syndicate Bank on 11 July, 2013

respondent no.1 -

Bank. It was further stated that the petitioner was trying to take advantage of the replies given to the
information sought under the provisions of The Right to Information Act, 2005 and the same would
not come wp4472.12.odt 7/17 to the aid of the petitioner. Relying upon the submissions filed before
this Court, it was stated that there was no condition imposed in the relieving order and even
otherwise, the petitioner was duty bound to have attended the proceedings before the Court of Law
as a witness. The learned Counsel relied upon the Judgment of the Gujarat High Court in the case of
Manubai Chhaganbhai Thakore Vs Union of India and 2 others, reported in (2008) IILLJ 226. Shri
Ahirkar, learned Counsel appearing for the respondent Central no.3 submitted that the competent
authority of the Bureau of Investigation had cancelled the appointment of the petitioner on account
of the conditional relieving order issued to the petitioner.

9. Having heard the learned Counsel for the respective parties and after having considered the entire
material placed on record, we are of the opinion that the petitioner is entitled to the relief of
reinstatement.

10. The petitioner during his course of employment with the respondent no.1 - Bank was selected on
the post of Dy. Advisor (Banking and Foreign Trade) in the Central Bureau of Investigation. His
selection is dated 19-4-2011. In view of the aforesaid selection, the petitioner tendered his
resignation on 3-5-2011 to the wp4472.12.odt 8/17 respondent no.1 Bank. The aforesaid resignation
was, however, not accepted by the respondent no.1 - Bank on account of the disciplinary proceedings
that were initiated against the petitioner. Subsequently, these disciplinary proceedings were
concluded in which the petitioner was held guilty of misconduct and was imposed punishment of
reduction by two stages in the time scale of his pay for a period of two years.

The petitioner accepted the aforesaid punishment and informed the respondent no.1 - Bank
accordingly. He, thereafter, reiterated his request to be permitted to resign as the disciplinary
proceedings had concluded.

He further informed the Bank that the notice period of three months be waived and he be relieved so
as to enable him to join the Central Bureau of Investigation. The relieving order dated 14-3-2012
refers to letter No.220/NRO/PSO/F-2204/2012 dated 14.03.2012 and states that the petitioner was
relieved in terms of said letter. Perusal of the aforesaid letter clearly indicates that the petitioner's
resignation had been accepted, but was made subject to the conditions imposed therein. As the
memorandum of relieving refers to aforesaid letter, it was, but natural for the prospective employer
i.e. the respondent no.3 to have perused the said letter. It is in view of the conditions imposed in the
letter accompanying the memorandum of relieving that the respondent no.3 decided to cancel
wp4472.12.odt 9/17 the petitioner's appointment. It is, therefore, clear that but for the conditions
mentioned/observations made in the said letter, the petitioner would have been employed with the
respondent no.3 - Central Bureau of Investigation on contract basis as he had already been selected
on the post of Dy. Advisor (Banking and Foreign Trade). The fact that the said accompanying letter
has weighed in the mind of the competent authority of the respondent no.3 is clear from its reply
filed before this Court in response to that if the writ petition. It can, therefore, be safely said the

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 5

 Javed vs Syndicate Bank on 11 July, 2013

petitioner would have been simply relieved without referring to the accompanying letter, there
would have been no occasion for the respondent no.3 to cancel the petitioner's appointment.

11. In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta
and others, reported in (1999)3 Supreme Court Cases 60, the Hon'ble Supreme Court considered the
question as to whether stigma could be gathered by referring back to the proceedings referred to in
the order of termination. In the said case, the order of termination referred to three earlier letters.
The Hon'ble Apex Court was called upon to examine if those three letters referred to in the order of
termination contained anything stigmatic wp4472.12.odt 10/17 though the order of termination
itself did not contain anything offensive. Referring to the decision in Indra Pal Gupta V Managing
Committee, Model Inter College, reported in (1984) 3 SCC 384, it was observed as under:

"34. It will be seen from the above case that the resolution of the Committee was part
of the termination order being an enclosure to it. But the offensive part was not really
contained in the order of termination nor in the resolution which was an enclosure to
the order of termination but in the Manager's report which was referred to ig in the
enclosure. The said report of the Manager was placed before the Court along with the
counter. The allegations in the manager's report were the basis for the termination
and the said report contained words amounting to a stigma. The termination order
was, as stated above, set aside.

35. The above decision is, in our view, a clear authority for the proposition that the
material which amounts to stigma need not be contained in the order of termination
of the probationer but might be contained in any document referred to in the
termination order or in it annexures. Obviously, such a document could be asked for
or called for by any future employer of the probationer. In such a case, the order of
termination would stand vitiated on the ground that no regular enquiry was
conducted. We shall presently consider whether, on the facts of the case before us,
the documents referred to in the impugned order contain any stigma."

12. The facts of the present case are somewhat similar in the sense that the relieving order dated
14-3-2012 though may appear to be innocuous, it refers to letter No. 2120/NRO/PSO/F-2204/2012
dated wp4472.12.odt 11/17 14.03.2012. The petitioner was relieved in terms of said accompanying
letter. This accompanying letter refers to the petitioner's working as Assistant Manager during the
period from 21-12-2009 to 14-5-2010 at the Bilaspur Branch wherein instance of loss/theft of ATM
(Debit) cards was reported. It was further stated that the said fraud had been reported to the
Reserve Bank of India which had been monitoring the progress in the investigation. It was but
natural that the competent authority of the respondent ig no.3 was relieving order and the letter
accompanying with it.

called upon to look into the As a prospective employer, the respondent no.3 chose to cancel the
appointment of the petitioner in view of the observations made and conditions imposed in the
accompanying letter dated 14-3-2012. Hence, drawing support from the Judgment in Dipti Prakash
Banerjee (Supra), we hold that the act of the respondent no.1 - Bank in relieving the petitioner in

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 6

 Javed vs Syndicate Bank on 11 July, 2013

terms of accompanying letter No. 2120/NRO/PSO/F-

2204/2012 dated 14.03.2012 was totally uncalled for and the same affected his future prospects of
employment. The petitioner though selected for appointment, had to face the indignation of its
cancellation.

13. It is further necessary to consider the fact that the petitioner had been proceeded against
wp4472.12.odt 12/17 in the departmental proceedings by the respondent no.1 - Bank and had been
punished for the misconduct.

By imposing the punishment of reduction by two stages in the time scale of pay, the petitioner was
continued in the employment. It can, therefore, be assumed that the respondent no.1 - Bank did not
find the misconduct of the petitioner to be so grave so as to warrant his removal/dismissal from
service.

Further, the only reason for resigning from service was the petitioner's selection by the respondent
no.3

- CBI on the post of Dy. Advisor (Banking and Foreign Trade). It is obvious that if the petitioner
would not have been selected for appointment with the respondent no.3, then there was no reason
for him to tender his resignation.

14. In so far as information supplied to the petitioner or to persons on his behalf by the Respondent
No.1 - Bank is concerned, the same would also be required to be viewed in the context of the
accompanying letter dated 14-3-2012. The information sought on behalf of the petitioner on
7-5-2012 and answers given thereto on 15-5-2012 are as under:-

[b] Whether any internal/ Y

external enquiry is
pending either at
Nagpur or at Bilaspur?

[c] Whether Mr. Javed Menon No.

has been clearly
relieved from the
service of Syndicate Bank?

wp4472.12.odt

[c] Whether any police Yes

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 7

 Javed vs Syndicate Bank on 11 July, 2013

enquiry is pending
against Mr.Javed
Memon, from your end?

Similarly, the information sought on behalf of the petitioner on 5-7-2012 and supplied by the
Bilaspur Police Station on 7-7-2012 reveals that neither any complaint or First Information Report
was lodged against the petitioner nor was any investigation under progress against the petitioner.
The above facts reveal that though no police enquiry was pending against the petitioner, the answer
given was otherwise. Similarly, though no enquiry was pending against the petitioner, the answer
given was otherwise. It is only in the last communication dated 14-8-2012 that the Respondent No.1
Bank stated that there was no complaint filed by it against the petitioner. It can thus be seen that in
absence of any proceedings under the Criminal Law having been initiated against the petitioner,
there was no reason whatsoever to observe in the accompanying letter dated 14-3-2012 that the
petitioner should make himself available by keeping the Bank informed about his
whereabouts/movements with copy to the Station Head of Bilaspur Police Station. The respondent
no.1

- Bank in its reply, however, has stated that even otherwise without such observations being made in
the accompanying communication, the petitioner was otherwise duty bound to attend the Court of
Law in wp4472.12.odt 14/17 matters where he was likely to be a witness. If this be so, there is all the
more reason for the Bank not to have put those conditions in the accompanying letter. It is,
therefore, clear that the petitioner's selection has been cancelled only on account of contents of
accompanying letter No.2120/NRO/PSO/F-

2204/2012 dated 14.03.2012.

15. By referring to the instance of loss/theft of ATM (Debit) Cards in the accompanying letter,
despite the fact that no complaint had been lodged agaisnt the petitioner with the police authorities,
the Respondent No.1 - Bank unnecessarily jeopardized the selection of the petitioner with the
Respondent No.3 - CBI. Considering the entire factual scenario, we have no hesitation in holding
that the petitioner's relieving in terms of accompanying letter dated 14-3-2012 was wholly
unjustified and uncalled for.

16. In so far as the reliance placed on behalf of the Counsel for the petitioner on the decision of the
Hon'ble Apex Court in the case of Srikantha (Supra) is concerned, it can be seen that the ratio of the
said Judgment is not applicable to the facts of the present case. In the said case, after tendering
resignation, the concerned employee was, thereafter, granted Casual Leave for subsequent
wp4472.12.odt 15/17 period and in those circumstances, it was held that the acceptance of
resignation and thereafter denying work to said employee was illegal. Similarly, the Judgment in the

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 8

 Javed vs Syndicate Bank on 11 July, 2013

case of Power Finance Corporation Limited (Supra) has no application to the facts of the present
case in as much as in the said case the voluntary retirement of the concerned employee had not
become effective. In so far as the Judgment relied upon by the learned Counsel for the respondent
no.1 of the Gujarat High Court, it can be seen that been in the said case, the resignation of the
employee had accepted unconditionally and had been communicated to the concerned employee
and in that situation, it was held that the resignation having been accepted the same could not be
subsequently withdrawn. The said Judgment cannot come to the aid of the respondent no.1 in the
view taken by us above.

17. We, therefore, hold that the action of the respondent no.1 - Bank in referring its letter No.
2120/NRO/PSO/F-2204/2012 dated 14.03.2012 in the memorandum of relieving dated 14-3-2012
was totally uncalled for in the facts of the present case and the same has resulted in depriving the
petitioner of future employment. On said count, the memorandum of relieving dated 14-3-2012 will
have to be declared as illegal and arbitrary thereby entitling the petitioner to be reinstated in service
with the wp4472.12.odt 16/17 respondent no.1 - Bank.

18. Though there is a prayer for grant of back wages, no arguments in support of the said prayer
were advanced before us. In the facts of the case, we are not inclined to grant said relief of back
wages to the petitioner.

19. The writ Petition is, therefore

allowed and the memorandum of relievi

14-3-2012
ig is set aside

respondent no.1 - Bank to reinstate the petitioner on with a direction to the the post of Assistant
Manager with continuity in service.

20. Rule is made partly absolute accordingly.

21. In the facts of the case, there will be no order as to costs.

JUDGE JUD
//MULEY//

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 9

 Javed vs Syndicate Bank on 11 July, 2013

wp4472.12.odt

Indian Kanoon - http://indiankanoon.org/doc/186386624/ 10