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Dev Ashish Bhattacharya Vs. Punjab National Bank and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in(1986)ILLJ98HP
AppellantDev Ashish Bhattacharya
RespondentPunjab National Bank and anr.
Excerpt:
- .....whereunder the services of the petitioner were terminated under condition no. 2 of the appointment letter (annexurep-1) on the ground that his services were no longer required by the respondent-bank. the termination order made it clear that the termination was by way of discharge simplicitor and that it shall not operate as a bar for any future employment. a pay order in the sum of rs. 928.27 p., being one month's salary accompanied the said communication. be it stated that both the letter dated 14th may, 1984 (annexure p-6) and the letter dated 19th may, 1984 (annexure p-7) were served upon the petitioner by the manager of the mandi branch of the respondent-bank under the cover of a letter dated 19th may, 1984 along with the pay order.5. in the present petition, the petitioner has.....
Judgment:

P.D. Desai, C.J.

1. Rule. To be heard today.

2. Mr. R.L. Sood, waives service of the Rule.

3. Pursuant to his selection through the Banking Services Recruitment Board (Delhi Group), the petitioner was appointed as clerk-cum-cashier in the respondent-bank under a letter dated 11th November, 1983 (Annexure P-l) and was posted at the Mandi Branch of the respondent-bank where he joined duty on 21st November, 1983. On 17th April, 1984, the services of the petitioner were terminated on the grounds set out in the termination order of even date (Annexure P-2). The petitioner challenged the termination order by instituting Civil Writ Petition No. 170 of 1984. The petition came on for preliminary hearing before this Court on 8th May, 1984 when the learned Counsel appearing on behalf of respondent-bank made a statement that the termination order would be withdrawn and that the petitioner would be reinstated in service forthwith with liberty reserved to the respondent-bank to proceed against him in accordance with law in regard to the subject matter of the withdrawn order. In view of the statement made, accordingly, the petition was dismissed as withdrawn on the same day.

4. On 9th May, 1984, two communications were addressed by the Regional Manager of the respondent-bank to the petitioner. Under Annexure P-3, the revocation of thetermination order dated 17th April, 1984 and his reinstatement in service in the post of clerk-cum-cashier with effect from the same day was conveyed to the petitioner. Under Annexure P 4, the petitioner was informed that in accordance with para. 495 of Chapter 15 of the Shastri Award, the bank desired to extend the probationary period of the petitioner for three months, that is, up to 21st August, 1984, and the petitioner was called upon to give his consent to the extension of the period of probation accordingly and to convey such consent on or before 16th May, 1984. In reply to the said communication, the petitioner sent a letter to the respondent-bank on 12th May, 1984 (Annexure P-5) stating, inter alia, that he was not willing to offer his consent to the extension of his probationary period since such action was 'contradictory' to the order dated 8th May, 1984, made by this Court while disposing of C.W.P. No. 170 of 1984 and that he apprehended that the respondent-bank would terminate his services again during the extended probationary period. The petitioner intimated in no unclear terms that he was prepared to join service only if he was reinstated unconditionally. A communication dated 14th May, 1984 (Annexure P-6) was thereupon addressed by the Regional Manager of the respondent-bank to the petitioner. The communication, inter alia, mentioned that the respondent-bank, while withdrawing the termination order, had reserved its right to proceed against the petitioner in accordance with law and that, therefore, it was within its right in extending the period of probation subject to the petitioner giving his consent thereto and that the apprehension entertained by the petitioner that his services would be terminated during the extended period of probation was 'absolutely baseless and ill-founded'. The petitioner was informed that the question of termination would arise only if he failed to improve upon his work and conduct which entirely was in the petitioner's hands. The ultimate paragraph of the communication read as follows:

Under the above detailed circumstances, you would be well advised to resume duties at the Mandi Branch at once, and to take appropriate action as deemed fit by you in relation to the extension of period of probation immediately. You may further be informed that in case you choose to, you may signify your consent in writing to such extension of probation on or before 18th May, 1984. This is imperative, since the Bank has no intention whatsoever of confirming you in service by default. Should you fail to signify your consent, as suggested above, then the Bank will be at liberty to take appropriate action in the matter as available to it under law.

Though this communication was issued on 14th May, 1984, somehow it did not reach the petitioner till 19th May, 1984, that is, a day after he was required to intimate his consent to the extension of the probationary period. In fact, the communication was received by the petitioner along with another communication dated 19th May, 1984 (Annexure P-7), issued by the Regional Manager, whereunder the services of the petitioner were terminated under Condition No. 2 of the appointment letter (AnnexureP-1) on the ground that his services were no longer required by the respondent-bank. The termination order made it clear that the termination was by way of discharge simplicitor and that it shall not operate as a bar for any future employment. A pay order in the sum of Rs. 928.27 P., being one month's salary accompanied the said communication. Be it stated that both the letter dated 14th May, 1984 (Annexure P-6) and the letter dated 19th May, 1984 (Annexure P-7) were served upon the petitioner by the Manager of the Mandi Branch of the respondent-bank under the cover of a letter dated 19th May, 1984 along with the pay order.

5. In the present petition, the petitioner has challenged his termination on several grounds.: It is not necessary for us to pronounce upon the validity of all those grounds because, in our option, the petitioner is entitled to succeed on the short ground that he was not afforded any chance to exercise the option which was offered ; to him under letter dated 14th May, 1984 (Annexure P-6) and that the respondent-bank has acted unreasonably and arbitrarily in serving upon the petitioner the communications dated 14th May, 1984 (Annexure P-6), and 19th May 1984 (Annexure P-7) simultaneously.

6. The foregoing narration of facts clearly indicates that even after the communication dated 12th May, 1984 (Annexure P-5)'was addressed by the petitioner to the respondent-bank seeking unconditional reinstatement, the respondent-bank was inclined to dispel the doubts entertained by the petitioner and to give him an opportunity to agree to the extension of the probationary period in terms of para. 495 of Chapter 15 of the Shastri Award. The ultimate paragraph of the communication dated 14th May, 1984 (Annexure P-6), which has been extracted above, clearly shows that that was the stand of the respondent-bank at the material time. By the said communication, the petitioner was required to give his consent on or before 18th May, 1984. However, the communication never reached the petitioner on or before the said day. It was actually served on him on the day next following simultaneously with an order terminating his services. The conduct of the respondent-bank in serving both these communications on the petitioner under the cover of the same letter and at the self-same moment is, to say the least, unreasonable and arbitrary. Iffor any reason which had come into existence subsequently, that is to say, after the issue of the communication dated 14th May, 1984 (Annexure P-6), the respondent-bank had changed its mind with regard to seeking the petitioner's consent to the extension of probationary period, it could have withdrawn or withheld the service of the said letter. The fact that this was not done clearly indicates that on the part of the respondent-bank, the offer had remained open till the time it was served. However, the conduct of the respondent-bank in serving the communication containing the offer after the expiry of time limit for the acceptance thereof and in simultaneously serving the termination order is difficult of reconciliation by any process of rationalisation. The respondent-bank appears to have expected the petitioner to perform an impossibility by offering to extend his period of probation provided he agreed thereto within the stipulated time limit, but, at the same time, by communicating the offer after expiry of such time limit. Besides, the communication of such offer simultaneously with the service of termination order made it impossible for the petitioner to accept the offer even after the expiry of time limit or to seek extension of the time limit to convey his acceptance. Lex non cogita impossibilia: The law forces not to impossibilities. Taking into consideration all the material facts and circumstances of the case, no conclusion other than that the respondent-bank has acted in an arbitrary and irrational manner is possible in the instant case.

7. For the foregoing reasons, the petition is allowed. The order dated 19th May, 1984 (Annexure P-7), terminating the services of the petitioner is quashed and set aside. As a result of the quashing and setting aside of the said order, the services of the petitioner will be deemed not to have been terminated and the petitioner will be regarded as having been continued in service and will be entitled to all the consequential benefits. This direction, however, is subject to the condition that by his letter dated 21st May, 1984, Annexure P-11, the petitioner will be taken to have signified his consent to the extension of this probationary period before the expiry thereof in terms of para. 495 of Chapter 15 of the Shastri Award. The extended period of probation will be taken to be conterminous with the period of three months from the date of his joining duty pursuant to the order herein made by this Court. In other words, the extended period of probation will continue till the expiry of the period of three months from the date of the petitioner's joining the duty pursuant to the order herein made by this Court. The direction given accordingly by this Court will supersede the provisions of para. 495 of Chapter 15 of the Shastri Award to the extent necessary. The petitioner will be deemed to have signified his consent to extension of probationary period accordingly. The petitioner will report for duty at the Mandi Branch of the respondent-bank on 21st July, 1984. It is clarified that the respondent-bank will be at liberty to deal with the case of the petitioner in accordance with law. Rule made absolute in terms aforesaid.


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