Jammu & Kashmir High Court - Srinagar Bench
Parvez Ahmad Nengroo vs Union Territory Of J&K & Ors on 11 November, 2020
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Link)
WP(C) No.470/2020
CM Nos.978/2020 & 1960/2020
Reserved on: 15.10.2020
Date of pronouncement: 11.11. 2020
Parvez Ahmad Nengroo ...Petitioner
Through: Mr. Shariq J. Reyaz, Advocate
(Through video link)
v.
Union Territory of J&K & ors.
...Respondent(s)
Through: Mr. D. C. Raina, Advocate General, with Mr. B. A. Dar, Sr. AAG, and Mr. Sajad Ashraf Mir, GA, for R-1;
Mr. Sunil Sethi, Sr. Advocate, with Mr. Ravi Abrol, Advocate, for R2 & 4;
Mr. R. K. Gupta, Sr. Advocate, with Mr. Nitin Parihaar, Advocate, for R-3;
Mr. G. A. Lone, Advocate, with Mr. Roshan Khayal, Advocate for R-5.
(Through video link) Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge Judgment
1. The petitioner, Ex-Chairman of the Jammu and Kashmir Bank Limited, has filed this writ petition, principally, challenging communication no.FD/Bkg/21/2019 dated 08.06.2019 addressed by the Additional Secretary to the Government, Finance Department of the erstwhile State of Jammu & Kashmir, to the Company Secretary, J&K Bank Limited, conveying the decisions of the Government taken by it in exercise of the powers under Article 69(iii) of Articles of Association of the Bank, that the petitioner shall cease to be Director SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 2 on the Board of Directors of the Bank and, consequently, be no longer the Chairman-cum-Managing Director of the Board of Directors of the Bank (the Board), and further about nominating Mr. R. K. Chibber, respondent no.4 herein, as Director on the Board and his appointment as the interim Chairman-cum-Managing Director of the Board/Bank. The petitioner has also sought reliefs ancillary to the aforesaid main relief which would be referred to later in this judgment.
2. The Jammu and Kashmir Bank Limited (hereinafter, the Bank) is a Public Sector Undertaking Bank, initially incorporated under the Jammu and Kashmir Companies Regulations no.XI of 1920 on 01.10.1938. Clause 1 of the Articles of Association of the Bank states that it is a Government Company within the meaning of Section 2(45) of the Companies Act, 2013 and it is an instrumentality of the State. The Union Territory of Jammu and Kashmir is its major shareholder, holding 68.18% of shares in the Bank. In these circumstances, the Bank is under the control of the Government of the Union Territory. The erstwhile State Administrative Council vide its Decision no.148/20/2018 dated 22.11.2018 also decided that the Bank shall apply the provisions of the J&K RTI Act, 2009; that like any other Public Sector Bank, the activities of the Bank shall conform to the CVC Guidelines; and that the Bank shall be accountable to the State Legislature to the extent other PSU Banks at the national level are accountable to the Parliament. It was, however, clarified that for all policy formulation and decision making in the Bank, the Board of Directors of the Bank is the competent authority, and that the business operations of the Bank shall be undertaken and regulated as per the provisions of the Companies Act, 2013, Guidelines of RBI, SEBI and other Regulatory authorities. The above decisions of the State Administrative Council were communicated to the Chairman/CEO of the Bank by the Under Secretary to the Government, Finance Department, vide communication no.FD/BKG/2019/13 dated 12.02.2019 to be placed before the Board for implementation.
SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 33. Article 69(i) of the Articles of Association of the Bank under Chapter X with caption 'Directors' provides that the number of Directors shall not be more than fifteen or less than seven, and that not more than three of these shall be appointed by the Jammu and Kashmir Government, who will be called Government Directors; provided that no Director other than a Government Director shall be elected as Chairman of the Board. Clause (iii) of Article 69 further provides that Government Directors will continue in their offices so long as their appointment is not cancelled by the Government. Article 75 under Chapter XIII, captioned 'Rotation of Directors' provides that all the Directors shall retire by rotation except Government Directors who will continue in their offices so long their appointment is not cancelled by the Government.
4. The petitioner was initially appointed as Company Secretary of the Bank way back in 1998. In September, 2016, he was functioning as Executive President of the Bank. Since the term of office of the Chairman and CEO of the time was expiring, the Board, on the suggestion of the Commissioner/Secretary to Government, Finance Department, J&K, by Resolution no. 32 passed in its meeting held on 20.09.2016, proposed a panel of three candidates in order of preference for approval by the Reserve Bank of India as Chairman & CEO of the Bank with effect from 06.10.2016. The petitioner's name figured at serial no.1 of the said panel of candidates. The Reserve Bank of India (RBI), vide its communication DBRAppt.no.3903/08.39.001/2016-17 dated 30.09.2016, conveyed its approval in terms of Section 35B of the Banking Regulation Act, 1949 (BR Act) for appointment of the petitioner as the Chairman & CEO of the Bank for three years with effect from 06.10.2016 on the terms and conditions mentioned in Annexure to the said communication. This annexure gave the details of remuneration and other perks of the petitioner as Chairman and CEO of the Bank with effect from 06.10.2016.
SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 45. Consequent upon the accord of approval by the RBI to appointment of the petitioner as Chairman of the Bank, the Government of Jammu and Kashmir, vide order no.209-F of 2016 dated 03.10.2016, accorded approval of the State Government to his appointment as Government Director in pursuance of Article 69(i) of the Articles of Association of the Bank.
6. Following the aforesaid Government order no.209-F of 2016 dated 03.10.2016, the Board, in its meeting held on 06.10.2016, passed Resolution no.01 appointing the petitioner as Nominee Director of the Government on the Board with effect from 06.10.2016, and further, appointed him as Chairman & Chief Executive Officer (CEO) of the Bank for a period of three years with effect from 06.10.2016 on the terms and conditions enumerated in annexure to the RBI's letter in question.
7. It is seen that, subsequent thereto, the Board in its meeting held on 27.12.2018 passed a resolution according approval to the payment of pensionary / retiral benefits to the Chairman & CEO as per the provisions of the Compensation Policy of the Bank and as per the rules of the Bank from the date of his appointment as Chairman & CEO of the Bank, and, in this regard, to approach the RBI.
8. Pursuant to the above resolution of the Board, it appears that the Company Secretary of the Bank approached the RBI vide communication no.JKB/BS/F-01/2018-19/225 dated 16.04.2019. The RBI, responding to the aforesaid communication dated 16.04.2019, vide their communication DBR.Appt. no.9712/08.39.001/2018-19 dated 15.05.2019, in terms of Section 35B of the Banking Regulation Act, 1949, conveyed its approval to the Bank's proposal for contribution towards the pension of the petitioner at 10% of his basic pay of Rs.4,29,000 per month with effect from 06.10.2016 in terms of para 4 of the Bank's Compensation Policy and the Pension Regulation Act, 1995 with direction that the excess contribution made till then be suitably adjusted. While giving the aforesaid approval, the RBI SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 5 cautioned the Bank that henceforth no provision conferring any benefit or providing any amenity or perquisite, in whatever form, whether during or after the termination of the term of Chairman and CEO, shall have effect unless the same was made with RBI's previous approval in terms of Section 35B of the Banking Regulation Act, 1949. The RBI in their aforesaid communication dated 15.05.2019 further noticed, recorded and pointed out the inconsistencies observed by it in the Bank's Compensation Policy vis-à-vis the RBI Compensation Guidelines dated 13.01.2012, and advised the Bank to rectify the said inconsistencies in line with the Compensation Guidelines of the RBI and exhibit compliance.
9. It is not known what action(s) were taken by the Board concerning the inconsistencies pointed out by the RBI in the Bank's Compensation Policy and whether any compliance was exhibited, as had been required of the Bank by the RBI.
10. Meanwhile, it appears that on 08.06.2019 the Anti Corruption Bureau (ACB), Srinagar, received a complaint from one Syed Kounsar Baihaqi D/o Gh. Mohd Baihaqi R/o Dandoosa alleging backdoor appointments of Banking Attendants/Assistant Banking Associates in the Bank on which FIR no.10/2019 for offences U/Ss 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, Svt., 2006 and Section 120-B RPC was registered at Police Station, ACB, against the petitioner and some other officers of the Bank.
11. Simultaneous with the receipt of the aforesaid complaint by the ACB, the Additional Secretary to the Government, Finance Department, issued the impugned communication dated 08.06.2019 to the Company Secretary of the Bank, conveying to him the Government decisions that the petitioner shall cease to be Director on the Board of Directors of the Bank and consequently be no longer the Chairman- cum-Managing Director of the Board; and that Mr. R. K. Chibber is nominated as the Director on the Board and may further be appointed as the interim Chairman-cum-Managing Director of the Board.
SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 612. The writ petitioner does not state what action was taken by the Board on the aforesaid communication dated 08.06.2019 of respondent no.1, except that no notice was given to the petitioner before the decision of his cessation as a Director and consequent removal as Chairman and CEO was taken by respondent no.1, no reasons were disclosed for such cessation and removal, nor was an opportunity given to him to make representation against any such reason, and that the said decision is vitiated for non-compliance of the basic principles of fairness and natural justice. However, the respondents in their objections/reply to the writ petition have stated what action was taken by the Board pursuant to the aforesaid communication dated 08.06.2019 and the same would be referred to later in this judgment.
13. As already mentioned, the petitioner is aggrieved of the aforesaid communication dated 08.06.2019 and has challenged the same in this petition.
14. According to the petitioner, he made representations addressed to the Chief Secretary of the erstwhile State and the Chairman & CEO of the Bank stating, inter alia, that he had not reached the age of superannuation and that despite his termination as Chairman & CEO, he substantively continued to be in the employment of the Bank and sought disbursal of his salary. In response thereto, the President, Human Resources Development Department of the Bank vide his communication dated 09.07.2019 informed the petitioner that he is deemed to have retired from the services of the Bank as Executive President with effect from 06.10.2016. Against the said communication dated 09.07.2019 of the President (HRD) of the Bank and for setting aside the same, the petitioner made a representation dated 12.07.2019 to the Financial Commissioner, Finance Department, Government of J&K.
15. The petitioner is also stated to have served a legal notice dated 23.12.2019 through his counsels, UKCA and Partners, Advocates and Solicitors, E-2 Kailash Colony, New Delhi, on the Bank, its Board of SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 7 Directors and the Government of Union Territory of J&K through its Financial Commissioner reiterating his stand that he had not reached the age of superannuation, and that despite his termination as Chairman & CEO, he substantively continued to be in the employment of the Bank, and, thereby calling upon them to release forthwith the salary and all monetary benefits, including perquisites due and payable to him and for recalling the order dated 08.06.2019 relating to cessation of the petitioner as the nominee Director of the Government, and communication dated 09.08.2019 intimating to him that he was deemed to have been retired from service of the Bank with effect from 06.10.2016.
16. According to the petitioner, after service of the aforesaid legal notice by the petitioner on the respondents, the Anti Corruption Bureau filed the charge sheets of the FIR no.10/2019 for offences U/Ss 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, Svt., 2006 and Section 120-B RPC vide Challan Nos. 3 & 4 against him and others before the Court of Special Judge, Anti Corruption, Srinagar.
17. Meanwhile, it is stated by the petitioner, the Bank pursuant to its decisions taken in its Annual General Meeting held on 26.09.2019, made amendments in certain Articles of Association of the Bank, whereby it created a new position of Managing Director of the Bank.
18. The petitioner filed this writ petition on 19.02.2020. During the pendency of this writ petition, viz. on 27.03.2020, certain more developments took place. The Bank issued an advertisement notice inviting applications from qualified candidates for the position of its Managing Director on full-time basis. The closing date was stipulated to be 03.04.2020 (5 P.M.). A revised notice was repeated on 24.04.2020 with closing date as 02.05.2020 (5 P.M.).
19. Pursuant to the selection process undertaken consequent upon issuance of the aforesaid advertisement notice(s), the Additional Secretary to Government, Finance Department, vide communication SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 8 no.FD-Bkg/12/2020 dated 15.05.2020 addressed to the Secretary of the Bank informed the Secretary of the Bank about the decision of the Government appointing Mr. Zubair Iqbal, Senior Vice President of HDFC Bank, as a Government nominee Director on the Board of the Bank for a period of three years or till further orders, whichever be earlier and, consequent thereto, stating that the Board may appoint / elect him as the Managing Director of the Bank. The Additional Secretary to Government, Finance Department, J&K by another communication, bearing even number and date addressed to the Company Secretary of the Bank conveyed to the Bank that the Government, in exercise of the powers under Article 69(i) of the Articles of Association of the Bank, had decided that Mr. R. K. Chibber, shall be a Non-Executive Director on the Board of the Bank for a period of three years or till further orders, whichever be earlier and, consequent thereto, the Board may appoint / elect him as the Chairman of the Board of the Bank.
20. Pursuant to the above, the Company Secretary of the Bank addressed communication dated 17.05.2020 to the National Stock Exchange and the BSE Ltd. informing them about the approval of the Board to the appointment of Mr. Zubair Iqbal as Managing Director of the Bank subject to the approval of the RBI thereto, and of Mr. R. K. Chibber as the Non-Executive Chairman of the Bank for a period of three years, both subject to the approval of and to be effective from the date of approval of their appointment by the RBI, including approval for the related amendments to the Bank's Articles of Association.
21. Consequent upon the above, said Mr. Zubair Iqbal filed EMG- CM no.78-A/2020 seeking impleadment as party respondent in the writ petition. His application was allowed by order dated 29.05.2020, impleading him as the 5th respondent in the writ petition. On the same date, the petitioner expressed his intention to file an application for amendment of the writ petition which he did. The said application, SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 9 being CM no.1961/2020, was allowed by order dated 19.06.2020 and the amended writ petition was taken on record.
22. In the amended writ petition, the petitioner, feeling aggrieved of all the aforesaid communications, orders, actions and developments, has made the following prayers:
"i. A writ in the nature of Certiorari or any other appropriate writ, order or direction of like nature quashing the impugned notice dated 08.06.2019 as being illegal, arbitrary and unreasonable and being passed in utter violation of the Banking Regulation Act and the Articles of Association of the Respondent No.2 Bank and thus non-est and invalid in law.
ii. A writ in the nature of Certiorari or any other appropriate writ, order or direction quashing the impugned communication dated 09.07.2019 as being illegal, arbitrary and unreasonable and thus non-est and invalid in law.
ii-a: Writ in the nature of Certiorari or any other appropriate writ quashing the impugned process initiated vide Advertisement Notices dated 27.03.2020 and 24.04.2020 for appointment against the non-existent post of Managing Director as well as the impugned appointment of the Respondent No.5 as Managing Director of Respondent No.2 Bank, be also issued in favour of the petitioner and against the Respondents;
iii. A writ in the nature of Mandamus or any other appropriate writ, order or direction reinstating the petitioner as the Chairman and CEO of the Respondent No.2 Bank in order to serve the remaining time of his tenure as Chairman and CEO of the Respondent No.2 Bank.
iv. A writ in the nature of Mandamus or any other appropriate order or direction in the nature of writ of mandamus declaring the appointment of Respondent No.4 as Chairman and CEO as illegal and unlawful being in violation of the Banking Regulation Act and the Articles of Association of the Respondent No.2 Bank.
v. In alternative to prayer (iv) (supra) a writ in the nature of Mandamus or any other appropriate writ, order or direction commanding the Respondent No.2 Bank to accommodate the petitioner at a Board SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 10 Level Post in the Respondent No.2 Bank till his superannuation from the Respondent No.2 Bank.
v-a: Writ in the nature of Mandamus or any other appropriate Writ commanding/directing the Respondents in particular Respondents 2 to 4 to treat the impugned process as well as the appointment of the Respondent No.5 to the post of Managing Director of the Respondent No.2 non-est in law and to desist refrain and forbear from giving effect thereto and/or carrying into effect in any manner disregarding / offending against the statutory mandate contained in Section 35B(b) of the Banking Regulation Act, 1949, be also issued in favour of the petitioner and against the Respondents;
vi. A writ, order or direction in the nature of Mandamus directing the Respondent No.2 Bank to forthwith release the monthly salary along with all perquisites and benefits due and payable to the petitioner in law. vii. Any other writ, order or direction that this Hon'ble Court deems just and proper to issue in the attendant facts and circumstances of the case be also issued in favour of the petitioner and against the Respondents. Costs of the petition be also awarded to the petitioner."
Broadly summarising, the petitioner claims that the impugned communications, orders, actions of the respondents are arbitrary, illegal and in utter disregard of the Banking Regulation Act, Articles of Association of the Bank and the Service Manual of the Bank.
23. The case of the petitioner is that termination of the tenure post of Chairman and CEO required the mandatory prior approval of the RBI, respondent no.3 herein, in terms of Section 35B of the BR Act and that its provisions have an overriding effect over the Articles of Association of any Banking Company or any resolution passed by any Banking Company; that the power of removal of Chairman & CEO of a Banking Company prior to completion of his tenure is vested only with respondent no.3, i.e., the RBI and that exercise of such power entails serving of notice upon the incumbent Chairman, affording him reasonable opportunity of being heard and making effective representation against his removal; that as per the provisions of BR SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 11 Act and the Articles of Association of the Bank no power is vested in the Board of Directors, muchless respondent no.1, acting unilaterally to remove a serving Chairman from his office. Reference in this regard is made to Sections 10B and Section 36AA of the BR Act. It is further stated that the RBI has not exercised its supervisory powers under the BR Act.
24. The further case of the petitioner is that even as per the extant Articles of Association of the Bank, if the petitioner would have ceased to be a nominee Director of respondent no.1, the said cessation would have no impact over the Chairmanship of the petitioner in the Bank, and that notwithstanding such cessation as nominee Director, the tenure post of the petitioner as Chairman would continue till the expiry of the said tenure in the ordinary course or unless removed by respondent no.3 in pursuance of the provisions of the BR Act. Reference in this connection is made to clause (B) of Article 118 of the Articles of Association of the Bank. It is also his case that the decision of his removal as Chairman was not only in blatant violation of the BR Act, but was also in utter disregard of the Articles of Association of the Bank.
25. It is also the case of the petitioner that appointment of respondent no.4 as interim Chairman was manifestly illegal and in contravention of the Articles of Association of the Bank, the BR Act and the provisions of the Companies Act, 2013. In this connection, referring again to Clause (B) of Article 118 of the Articles of Association of the Bank, it is submitted that appointment of a Chairman, whether interim or permanent, subject to the concurrence of the RBI, is a power vested only with the Board of Directors of the Bank, not respondent no.1, even though it might be the largest shareholder of the Bank. It is averred that appointment of respondent no.4 as Chairman of the Bank is illegal, unlawful and void ab initio.
26. Respondents have filed their respective replies/objections to the writ petition. Respondent no.1 is the Union Territory of Jammu and SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 12 Kashmir through Commissioner/Secretary to Government, Finance Department. Respondent no.1 has taken a preliminary objection to the maintainability of the writ petition, stating that the appointment of the petitioner as Chairman and CEO of the Bank was a contractual appointment which came to be cut short by a period of four month, and that no writ can be filed for enforcement of a contractual relationship. It is further stated that the petitioner was appointed as Chairman and CEO for a period of 3 years with effect from 06.10.2016 which term was to come to an end on 05.10.2019. He ceased to be the Chairman & CEO with effect from 08/09.06.2019. He has filed the present writ petition in February, 2020, i.e., much after the date on which his contractual tenure would have expired. Therefore, the writ petition has become infructuous ab initio. It is also stated that the petitioner had an alternate remedy of filing statutory appeal available to him under Section 10B(7) of the BR Act, which he has failed to avail of; therefore, he cannot maintain the writ petition.
27. While admitting the facts, briefly stated hereinabove, respondent no.1 in the reply has given the chronology of the relevant dates and events. Most of these dates and events are covered by the facts already narrated above. However, few of the dates and events which have not been stated by the petitioner in his writ petition may be noted.
28. It is stated that on 08.04.2008, on the basis of Ganguly Group Recommendation, the RBI issued a communication directing the Bank to take action for splitting posts of Chairman and Managing Director / Chief Executive Officer. This was not done by the Bank. On 02.09.2015 the Securities and Exchange Board of India made the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, Regulation 17(1B) whereof provided that with effect from 01.04.2020 the top 500 listed companies shall ensure that the Chairperson of the Board of such listed companies be a non-executive Director; and not be related to the Managing Director or the Chief Executive Officer. It is stated that the SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 13 Bank was one amongst the 500 listed entities at that point of time, and that on 10.01.2020 the deadline of 01.04.2020 was extended to 01.04.2022. It is averred that it was on 26.09.2019, that is, after the petitioner ceased to be the Chairman of the Board of the Bank, that, in the 81st Annual General Meeting of the shareholders of the Bank, approval of the members of the Bank was accorded to the alteration of the Articles of Association of the Bank whereby posts of Chairman and Managing Director were split which decision was approved post facto by the RBI via mail on 26.05.2020. In effect and in essence, inaction is, thus, attributed to the petitioner.
29. It is further averred that in response to the advertisement notices dated 27.03.2020 and 24.04.2020 issued, inviting applications for the position of Managing Director, 37 applications were received. However, only 18 candidates were shortlisted by the Search Committee. The interview of the shortlisted candidates was conducted by the Search Committee / Screening Committee, comprising three members, constituted vide Government order no.22-F of 2020 dated 16.01.2020, and pursuant to the recommendations made by the said Committee, the Government decided to appoint respondent no.5 herein as nominee Director on the Board of Directors of the Bank with effect from 15.05.2020 for a period of three years or till further orders, whichever be earlier,. Further, the Board, pursuant to relevant provisions of the BR Act and Articles of Association of the Bank and subject to approval by the RBI, resolved and approved the candidature of Mr. Zubair Iqbal for the office of Managing Director of the Bank for a period of three years. It is averred that appointment of respondent no.5 as Managing Director of the Bank is not violative of any statutory obligation.
30. It is further stated that while the petitioner's writ petition was pending, he also applied for the position of Managing Director so notified by the Bank, but he could not make it to the list. The case of the respondent is that the petitioner having applied for and participated SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 14 in the selection for the position of Managing Director, is now estopped by doctrine of estoppel, by his own conduct, to throw challenge to the appointment of respondent no.5 as Managing Director of the Bank.
31. Further, averments are made with regard to involvement of the petitioner in criminal case FIR No.10/2019 registered with Police Station, Anti Corruption Bureau, Kashmir, for commission of offences punishable under sections 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, Svt. 2006 and Section 120-B RPC. It is stated that as soon as these serious allegations against the petitioner with respect to his involvement in backdoor appointments in the Bank came to surface, the Government in the Finance Department took the decision to remove him as Government Director as well as Chairman and CEO of the Bank and communicated its decision to the Company Secretary vide communication No.FD/Bkg/21/2019 dated 08.06.2019. It is stated that the petitioner was a Government Director and it was a privilege granted to him by the Government, and that the Government had every right and power under law to withdraw the said privilege at any time. Reference in this regard is made to Clauses (i) and (iii) of Article 69 and Article 75 and of the Articles of Association of the Bank.
32. It is also stated that consequent upon receipt of the aforesaid communication dated 08.06.2019, the Board of the Bank in its meeting held on 08.06.2019 itself passed two resolutions, being BR No.02 and B.R. No.03. By BR No.02, the Board resolved that the petitioner ceased to be Director on the Board of the Bank and, consequently, as Chairman & CEO of the Bank with effect from 08.06.2019. By BR No.3, respondent no.4 was appointed as the nominee Director of the Government of Jammu and Kashmir on the Board of the Bank with effect from 08.06.2019 and on the very same day the Bank, vide communication no.F/01/BS-2019/253 dated 08.06.2019, forwarded the said Board Resolutions to the RBI for approval in terms of Section 35B of the Banking Regulation Act, 1949, and the RBI conveyed its SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 15 approval for appointment of respondent no.4 as interim Chairman and Managing Director of the Bank for a period of three months with effect from 10.06.2019 which was extended, thereafter, from time to time. It is stated that the mandate under Section 35B of the BR Act was fully followed and fulfilled and that there is no irregularity committed in the appointment of respondent no.4.
33. It is also averred that the RBI in response to communication bearing Ref. No.F/01/BS/2019/253 dated 08.06.2019 of the Company Secretary of the Bank had, by implication, granted approval as, according to respondent no.1, the day a Chairman ceases to be the Government Director, he simultaneously ceases to be the Chairman of the Bank and this, according to respondent no.1, is the collective purport and intent of Articles nos. 69(i), 69(iii), 75 and 118(B) of Articles of Association of the Bank.
34. Respondent no.1 has further stated that in terms of Section 2(1) of the Jammu and Kashmir Bank (Employees) Pension Regulations, 1995 (the Pension Regulations), the petitioner is deemed to have retired from the services of the Bank with effect from the day he came to be appointed as Chairman of the Bank, i.e., on 06.10.2016. After accepting the appointment as Chairman and CEO of the Bank, he could not remain in employment as Executive President of the Bank and is deemed to have released his lien over the said post. In this connection, it is stated that the Bank vide communication dated 09.07.2019 duly informed the petitioner that he was deemed to have retired from the services of the Bank with effect from the date he was appointed as Chairman of the Bank on 06.10.2016 and, as such, no disciplinary proceeding were required to be taken against him in the matter by the Bank after he had retired.
35. It is also stated that there is no provision for issuance of prior notice to the petitioner before taking the decision of his cessation as Director on the Board of Directors and consequent removal as Chairman and CEO of the Bank, and that he has no legal right to SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 16 challenge his removal from the said position as he was a Government Director appointed by the Government which is also a prerequisite to be the Chairman and CEO of the Bank.
36. As regards the prayer of the petitioner for accommodating him on a Board Level Post in the Bank till his superannuation from the Bank, it is stated that such a relief cannot be granted to the petitioner in light of the provisions of law contained in Section 10A 2(A) ii of the BR Act.
37. Respondent nos.2 & 4, i.e., the Bank and its incumbent Chairman, in their joint reply have similarly taken objection to the maintainability of the writ petition, stating that the petitioner's appointment as Chairman & CEO was contractual appointment; that none of the fundamental rights of the petitioner have been violated; that the petitioner had the alternate remedy of filing statutory appeal under Section 10B(7) of the BR Act which he has not done; that the petitioner is involved in a criminal case, FIR No.10/2019 involving serious offences under Prevention of Corruption Act relating to backdoor appointments made in the Bank etc.
38. It is further averred by these respondents in the preliminary objections that the petitioner accepted the decisions of the Government and that of the Board regarding his removal from the position of Chairman and CEO of the Bank in consequence of which he submitted an application dated 09.07.2019 to the Chairman of the Bank in which he accepted that he had demitted the office of the Chairman of the Bank and sought release of salary in his favour on the ground that, prior to his appointment as Director/Chairman and CEO of the Bank, he was holding the status and position of Executive President in the Bank and that he had not attained the age of superannuation and had submitted leave applications to the Chief Secretary and to the Chairman of the Bank in response whereto he was informed that after appointment as Chairman and CEO, he is deemed to have retired as Executive President with effect from 06.10.2016. It is also stated that SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 17 having fully accepted the factual and legal position, the petitioner applied for grant of terminal benefits/retiral benefits vide application dated 16.09.2019 along with the requisite documents necessary for grant of such benefits. It is stated that the petitioner is guilty of suppressing these material facts from the Court.
39. Respondents 2 and 4 in their reply have further stated that the petitioner also applied for the position of Managing Director, but he was not found suitable by the Screening Committee and did not figure in the shortlisted candidates. Therefore, having participated in the selection process, but failed, he cannot challenge the selection and appointment of respondent no.5 as Managing Director.
40. Concerning the resolutions passed by the Board on 08.06.2016, it is stated that on 08.06.2019 itself the Bank vide communication bearing Ref. No.F/01/BS-2019/253 dated 08.06.2019 forwarded the Board Resolutions to the RBI for approval in terms of Section 35B of the BR Act, and the RBI considered the said Board Resolutions and conveyed its approval for appointment of respondent no.4 as interim Chairman and Managing Director of the Bank for a period of three months. Copy of the approval of the RBI dated 09.06.2019 has been placed on record of the reply as Annexure R6.
41. In the para-wise replies, the Bank has made averments almost akin to the statements made by respondent no.1 in its objections/reply. It is stated that the petitioner after having accepted the appointment as Chairman and CEO of the Bank could not remain in employment of the Bank as its Executive President; he is deemed to have retired from the service of the Bank with effect from 06.10.2016. In this connection, reliance is placed on Clause 2(i) of Chapter 1 of the Pension Regulations.
42. So far as contribution towards the pension of the petitioner @ 10% of his basic pay of Rs.4,29,000/- in terms of para 4 of the Bank's Compensation Policy and the Employees' Pension Regulations read SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 18 with the Board Resolution dated 27.12.2018 and approval thereto accorded by the RBI dated 15.05.2019 is concerned, it is stated by the Bank that Regulation 2(1) of the Pension Regulations makes it clear that when an officer of the Bank accepts his appointment as Chairman of the Bank, he is deemed to have retired from the services of the Bank from the date he assumes the charge as Chairman.
43. It is reiterated by the Bank that respondent no.1 being the major shareholder of the Bank, holding 68.18% of shares in the Bank, has got the right to cancel appointment of nominated Director. It is averred that there is no provision envisaging issuance of prior notice to the petitioner before taken the decision of cessation as Director on the Board of Directors and consequent removal from the post of Chairman & CEO of the Bank.
44. As to the plea of the petitioner that prior approval of the RBI for termination of Chairman is required to be obtained, it is stated that such approval is necessary only for making the termination of appointment of Chairman already made by the Board to be effective. It is stated that the RBI in response to communication dated 08.06.2019 of the Company Secretary had granted the said approval, albeit by implication.
45. In para 29 of its reply, the Bank has detailed out the processes undertaken in the appointment of respondent no.4 as the non-executive Director on the Board of the Bank and Chairman of the Bank for three years or till further orders, whichever be earlier.
46. So far as reference to Article 118(B) of the Articles of Association of the Bank by the petitioner is concerned, the Bank states that invocation thereof is misconceived and misplaced. It is further stated that after the communication dated 08.06.2019 was issued by the Government and the Board Resolution dated 08.06.2019 were passed, the petitioner, ipso facto, ceased to be the Government Director on the Board and no longer remained Chairman of the Bank.
SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 1947. Respondent no.3, the RBI, in its reply has also taken a preliminary objection that the petitioner involves investigation of disputed questions of facts of a contractual nature, and that it is not maintainable. On merits it is stated that the BR Act empowers the RBI to supervise and regulate the Banking Institutions in the country. In terms of Section 10B(9) of the BR Act, notwithstanding anything contained in Section 10B, where a person appointed on a whole-time basis, as Chairman of the Board of Directors or the Managing Director dies or resigns or is by infirmity or otherwise rendered incapable of carrying out his duties or is absent on leave or otherwise in circumstances not involving the vacation of his office, the banking company may, with the approval of the RBI, make suitable arrangements for carrying out the duties of Chairman or Managing Director for a total period not exceeding four months. On merits, it is stated that there was no specific proposal before the RBI for approval of termination of appointment of the Chairman, and that respondent no.2 had sought approval of the RBI for an arrangement viz. the interim CMD's appointment. From a regulatory perspective, it was necessary for the RBI to ensure that the interests of the depositors / banking company were safeguarded; thus the proposal for the appointment of an interim CMD was granted approval. It is further stated by the RBI that the regulatory / statutory approvals required are primarily for safeguarding depositors' interest and the RBI does not sit in judgment over the legality of actions taken by a banking company in pursuance of its contracts with its employees. Further referring to Section 10B of the BR Act, it is stated that there is no approval of the RBI required for splitting the post of a Chairman appointed on a whole-time basis to a post of a Chairman appointed on a part-time basis and a post of a Managing Director appointed on a whole-time basis.
48. Respondent no.5 is the present Managing Director of the Bank, having been so appointed in consequence of the selection process SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 20 conducted pursuant to advertisement notices dated 27.03.2020 and 24.04.2020 issued by the Bank, the recommendations of the Search Committee/Screening Committee constituted by the Government vide order no.22-F of 2020 dated 16.01.2020, and the resolutions passed by the Board in that behalf pursuant to the Government's recommendations made vide communication dated 15.05.2020 in that behalf. The said respondent has contested the claim of the petitioner insofar as his appointment as Managing Director is concerned.
49. The petitioner has also filed rejoinders to the replies filed on behalf of the respondents. Respondent no.3, i.e., the RBI, has also filed a surrejoinder to the rejoinder filed by the petitioner to its reply.
50. I heard learned counsels for the parties and considered the matter.
51. As seen above, the respondents have taken preliminary objections to the maintainability of this writ petition. Therefore, this Court is of the view that it would be appropriate to first deal with the preliminary objections raised on behalf of the respondents. In the event it is found that the writ petition is not maintainable, the merits would not need to be gone into.
52. The preliminary objection is taken primarily on the ground that nomination of the petitioner as Government Director on the Board of the Bank and its Chairman and his cessation from such positions falls in the realm of contractual relationship and, therefore, for contractual remedies the petitioner ought to approach appropriate forum, not this Court in its writ jurisdiction. Reference in this connection is made to the judgment of the Bombay High Court in Chanda Deepak Kochhar v ICICI Bank Limited, MANU/MH/0386/2020. To buttress this submission, it is submitted that the petitioner, no doubt, was working as Executive President in October 2016 but, having accepted the appointment as Chairman and CEO of the Bank, he could not remain in employment of the Bank as its Executive President and is deemed to SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 21 have retired from the service of the Bank with effect from 06.10.2016, the date he was nominated as the Government Director on the Board and appointed as Chairman of the Bank. It is submitted that in his capacity as being the Government nominated Director and appointment as Chairman of the Bank, he was not an employee of the Bank, but his position as such fell in the realm of contractual relationship. Reference in this regard is made to Regulation 2(l) of Chapter 1 of the Pension Regulations. This fact was communicated to the petitioner in terms of communication dated 09.07.2019 by the President, HRD, of the Bank in response to his application dated 10.06.2019 addressed to the Chief Secretary of the erstwhile State of J&K, now the UT of J&K, copy whereof had been sent to the Chairman and MD of the Bank.
53. On behalf of the petitioner, it is submitted that the concept of the deemed retirement is a tool for computing qualifying service for the purposes of calculation of pension under the Pension Regulations and has absolutely no application in the present factual scenario, and that this expression does not find any place in the Service Manual of the Bank. It is submitted that for the purpose of pensionary benefits, in law, elevation of an employee from a career level post to the Board level position is to be deemed to have entailed a break in service and for the purpose of counting qualifying years for pension only the period served by an employee upto the career level posts is to be taken into account and the date of elevation of an employee to a Board level position is deemed to be the date on which the said employee retired from the service of the Bank and the period after such elevation is thus excluded for purpose of computing qualifying years of service. The specific averment made by the petitioner in this regard in para 45 of the writ petition is quoted hereunder:
"45. That with respect to the legal position qua the concept of 'deemed retirement', it is submitted that for the purposes of pensionary benefit, the elevation of an employee from a Career Level Post' (positions held in a SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 22 Bank below the Board of Directors) to 'Board Level Post'(Position on the Board of Directors) is deemed in law to have entailed a break in service and for the purpose of qualifying 'qualifying years' for pension, only the time served by an employee at career level posts' is counted and the date of elevation of an employee to a 'Board Level Post' is deemed to be the date on which the said employee retired from the services of the Bank and the period after such elevation is thus excluded for the purpose of computing 'qualifying years' of service. "
(Underlining supplied) In my view, the stand so taken on behalf of the petitioner clinches the issue, in that it is, thus, admitted by the petitioner that with his nomination as Director on the Board of the Bank and his appointment as Chairman-cum-Chief Executive Officer, he is deemed to have retired from the said date, of course, according to him, for purpose of computing qualifying service for the purpose of pension. So, if the petitioner is deemed to have retired as an employee of the Bank with effect from 06.10.2016, the date he was nominated as the Government Director on the Board and appointed as Chairman of the Bank, the question is what would his relationship with the Bank be during the period he would remain or remained as nominated Director on the Board of the Bank and its Chairman-cum-Chief Executive Officer, especially so when, admittedly, this period is to be excluded while computing the qualifying service?
54. The word 'retirement' means termination of one's employment or career; retirement may be voluntary or involuntary. Obviously, in the instant case, the petitioner had the choice to decline the nomination as Director on the Board and to be the Chairman and CEO of the Bank. But he accepted the position and thereby, by operation of the relevant Regulation(s), of his own volition agreed to be deemed to have retired from the employment of the Bank. He, thus, having seceded his relationship with the Bank as its employee, the period during which he remained as nominated Director on the Board and Chairman and CEO of the Bank would not constitute employment to be governed by the SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 23 service conditions of the Bank. If that be so, as it actually is, the only relationship of the petitioner with the Bank while being a Government Director on the Board and Chairman/CEO of the Bank cannot but be contractual in nature.
55. Despite the above clearly admitted position, the claim of the petitioner is that, nay, so far as he is concerned, his employment with the Bank continued unabated and uninterrupted. It is pleaded that the concept of deemed retirement has no relation with one's service and is even otherwise not applicable to Chairman/CEO and whole-time Directors who are serving employees of the Bank and had subsequent to their service in the Bank at a career level post been elevated to a Board Level Post in the same Bank. In other words, it is submitted that the definition of the expression "deemed to have retired" given in the Pension Regulations is not attracted in the case of Chairman/CEO and whole time Directors of the Bank. To buttress this submission, reliance is placed on one of the bulleted paragraphs of Clause 4 of the Compensation Policy of the Bank which specifies the components of compensation as could be provided by the Bank to its employees. Reference in this connection is also made to the resolution of the Board dated 27.12.2018 and approval dated 15.05.2019 thereto accorded by the RBI.
56. In this regard, one thing has to be borne in mind that neither the position of Director, nor of the Chairman/CEO or the Managing Director are promotional posts in the service of the Bank. So, nomination of the petitioner as Government Director on the Board or his appointment as Chairman/CEO of the Board of the Bank is not an elevation in the sense of promotion as construed in ordinary service parlance. Now, before coming to Clause 4 of the Compensation Policy, the resolution of the Board dated 27.12.2018 and approval thereto dated 15.05.2019 accorded by the RBI, it may be mentioned here that pursuant to Articles 71 and 72 of the Articles of Association of the Bank, particularly clause (e) of Article 72, the Board of Directors has SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 24 framed the service conditions, entitled the Pension Regulations. Rule/Regulation 2 thereof defines various terminologies used therein. It says 'in these regulations, unless the context otherwise requires'. Sub-rule (k) of these Regulations defines the expression 'Date of Retirement'. It reads as under:
"(k) 'Date of Retirement' means the last date of the month in which an employee attains the age of superannuation or the date on which he is retired by the Bank or the date on which the employee voluntarily retires; or the date on which the officer is deemed to have retired."
So, the 'date of retirement', inter alia, means the date on which an officer is 'deemed to have retired'. When is an officer 'deemed to have retired' is mentioned immediately below Sub-rule (k) in Sub-rule (l) as under:
"(l) 'deemed to have retired' means cessation from services of the bank on appointment by State / Central Government as a whole-time Director or Managing Director or Chairman in the bank or in any other bank."
A conjoint reading of the aforesaid two provisions of the Pension Regulations, which constitute the service conditions of the employees of the Bank, makes it clear that date of retirement means the date on which an officer is deemed to have retired which expression, in turn, means cessation from the services of the Bank. Once the cessation from the services of the Bank takes place, there is no question of anybody, muchless of the petitioner, continuing unabated and uninterrupted in the service of the Bank.
57. Coming to the specific bulleted paragraph of Clause 4 of the Compensation Policy of the Bank, relied upon by the petitioner to canvass that pension schemes being not applicable to the whole time Directors and Chairman / CEO of the bank, the definition of the expression "deemed to have retired" given in the Pension Regulations is not attracted in the case of the petitioner, the object of the Policy in question as given out by it needs to be understood. In that connection, SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 25 let its preamble be gone into. Clause 1 of the Compensation Policy is captioned 'Introduction' and it reads thus:
"1. Introduction The policy defines the broad guidelines to be followed by the Bank in context of compensation to be paid to the employees across all levels within the organization, including the top management in consonance with the guidelines issued by the Reserve Bank of India vide its Circular No.DBOD No.BC.72/29.67.001/2011-12 dated January 13, 2012, the policy specifies the structure of various components within the overall compensation package and the nature & ceilings on certain specific components as required under regulations."
A bare perusal of the Preamble of the Policy is indicative of the fact that it defines the broad guidelines to be followed by the Bank in context of compensation to be paid to the employees across all levels, including the top management, within the organization. This Court has already recorded a finding hereinabove that the petitioner in his capacity as being the Government Director and/or the Chairman/CEO of the Bank was not an employee of the Bank, nor from amongst its top management, he having been deemed to have retired on 06.10.2016. So, from the very Introduction of the Policy, it becomes manifest that the guidelines mentioned in the Compensation Policy are not applicable to the Chairman/CEO. This is one aspect of the matter. So far as Clause 4 of the Compensation Policy is concerned, it delineates the Components of Compensation. It reads as under:
"4. Components of Compensation For the purpose of this policy, compensation shall refer to any form of benefits, monetary or non-monetary, provided to employees in exchange of their contribution and service to the organization, specifically, it shall be refer to
- Fixed salary (including fixed supplements)
- Performance-based remuneration (variable salary)
- Other benefits including insurance, etc.
- Pension contributions. "SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 26
The paragraph of Clause 4 relied upon by the petitioner reads as under:
"- Chairman and Whole Time Directors shall not be covered under pension schemes unless Whole Time Directors have been appointed from amongst the serving managements and covered as regular employees of the Bank. Such benefits, however, shall be available to Whole Time Directors only upto the time of normal superannuation and in case they are continued with beyond retirement, the pension benefit shall be culminated."
From a conjoint reading of the above two paragraphs of Clause 4 of the Compensation Policy, it becomes self evident that whereas the Policy provides for provision of pension contributions for the employees of the Bank, any such pension schemes shall not be applicable to the Chairman and whole time Directors of the Bank. Thus, the paragraph relied upon by the petitioner has nothing to do with the definition of the expressions 'date of retirement' or 'deemed to have retired' and, in any case, it does not exclude attraction of such definitions to a person nominated as Government Director or appointed as Chairman / CEO from the serving management. The paragraph relied upon by the petitioner, in fact, cuts at the very root of his argument, in that the first sentence of this para says "Chairman and whole time Directors shall not be covered under pension schemes unless whole time Directors have been appointed from amongst the serving management and covered as regular employees of the Bank". Once it is admitted by the petitioner that he is not covered under the pension schemes, and rightly so, that automatically tantamount to admission on his part that he in his capacity as being the Government Director on the Board and Chairman/CEO was not an employee of the Bank. If that be so, as it, in fact, is, the contention that the petitioner continued to be an employee of the Bank unabated and uninterrupted is self defeated and contradicted. Furthermore, the second sentence of the bulleted paragraph cited by the petitioner states that 'such benefits', i.e., the pension benefits, shall be available to whole time Directors only upto the time of normal superannuation and in case they are SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 27 continued with beyond retirement, the pension benefit shall be culminated. This sentence also, thus, goes against the plea of the petitioner, in that it says that if a person is continued as whole time Director beyond the date of retirement, his pension benefit shall be culminated. So, once the petitioner retired with effect from 06.10.2016, his pension culminated on that date. Consequently, he ceased to be an employee of the Bank and, therefore, would not be subject to its service conditions.
58. So far as the resolution of the Board dated 27.12.2018 is concerned, let it be seen what the resolution actually had said. it reads as under:
"Resolved that the approval of the Board be and is hereby accorded to the payment of pensionary / retiral benefits to the Chairman & CEO as per the provisions of the Compensation Policy of the Bank and as per the rules of the Bank, from the date of his appointment as Chairman & CEO of the Bank and RBI be approached accordingly in this regard."
On the face of it, there seems to be nothing wrong in the resolution, in that the Board had not said that pensionary / retiral benefits be granted to the petitioner outside the Compensation Policy and the Rules of the Bank. In fact, the name of the petitioner is not mentioned in the resolution and, in any case, neither the Compensation Policy nor the rules of the Bank allow any such benefit. It is not known under what circumstances the Company Secretary of the Bank had written communication no.JKB/BS/F-01/2018-19/225 dated 16.04.2019 to the RBI seeking approval to the grant of pensionary / retiral benefits in favour of the petitioner in his capacity as being the Chairman / CEO of the Bank, but one thing is clear that the RBI is simply a regulatory/supervisory authority; it has nothing to do with the Rules of the Bank or the service contract between the Bank and its appointees. Therefore, the approval granted by the RBI to the aforesaid resolution would not override the express provisions of the Compensation Policy and/or the Rules of the Bank. It is reiterated here that it is the positive SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 28 case of the petitioner that Chairman and whole time Directors of the Bank are not covered under pension schemes and that is what Clause 4 of the Compensation Policy provides.
59. The sum total of the above discussion is that the nomination of the petitioner as Director on the Board and his appointment as Chairman-cum-Chief Executive Officer of the Bank was contractual in nature and not governed by any Statute or the service conditions ordinarily applicable to the employees of the Bank. In Chanda Deepak Kochhar v ICICI Bank Limited (supra), the Division Bench of the Bombay High Court has held that contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. It is also to be borne in mind that Mandamus is limited to enforcement of public duty. In that view of the matter, this petition, insofar as it challenges communication no.FD/Bkg/21/2019 dated 08.06.2019 addressed by the Additional Secretary to the Government, Finance Department, of the erstwhile State of Jammu & Kashmir, to the Company Secretary, J&K Bank Limited, conveying the decisions of the Government taken by it in exercise of the powers under Article 69(iii) of Articles of Association of the Bank, that the petitioner shall cease to be Director on the Board of Directors of the Bank and, consequently, be no longer the Chairman of the Board of Directors of the Bank, is held to be not maintainable. The remedy lies in the civil court.
60. Next, the case of the petitioner before this Court is that even when he was nominated as Government Director on the Board and was appointed as Chairman-cum-Chief Executive Officer of the Bank, he continued to be in service of the Bank unabated and uninterrupted and, therefore, continued to be governed by the service conditions of the Bank, and that since the Bank, being an instrumentality of the State, is amenable to the writ jurisdiction of this Court, this petition challenging communication dated 09.07.2019, which conveyed to him that he is deemed to have retired from the service of the Bank with effect from SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 29 06.10.2016, is maintainable. In that context, this Court has recorded its finding that in terms of Rule/Regulation 2(k) and 2(l) of the Pension Regulations, the petitioner is deemed to have retired from the Service of the Bank with effect from 06.10.2016, therefore, his tenure as being the Chairman & CEO of the Bank is not governed by the Service Rules of the Bank. Consequently, any dispute sought to be raised by him in relation thereto, including challenge to communication dated 09.07.2019, cannot be gone into by this Court in its writ jurisdiction. In that view, this writ petition to that extent as well is not maintainable.
61. Since all the other reliefs prayed for by the petitioner in this petition are relatable to the two prayers for issue of the writs of Certiorari to quash the two communications dated 08.06.2019 and 09.07.2019, this petition for these reliefs as well would not survive before this Court in its extra ordinary writ jurisdiction.
62. So far as the prayer of the petitioner for a direction to the respondents for release of all perquisites and benefits due and payable to him in law is concerned, it is seen that Chapter II of the Pension Regulations contain and provide for the application and eligibility of the said Regulations. It is admitted that he was in the service of the Bank till 06.10.2016, the date he was deemed to have retired from the service of the Bank. This Court could make a direction that in the event he is eligible to pensionary benefits under the Pension Regulations in question in lieu of his service till 06.10.2016 and he applies in accordance therewith for grant of such pensionary benefits, the Bank authorities shall consider the case of the petitioner in accordance with the applicable rules and pass appropriate orders, but, since this Court is dealing with the petition in limine and leaving the petitioner free to approach the civil court for seeking his main reliefs, such a direction may amount to treading into the merits of the case and may prejudice the petitioner in the civil court in seeking his all the reliefs. Therefore, by way of abundant caution no direction is made in that regard.
SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document 3063. In view of all what is said above, this petition is dismissed in limine alongwith all connected CMs as not maintainable before this Court, leaving the petitioner free to approach the civil court for seeking enforcement of his contractual relationship and/or redressal of his contractual dispute(s) with the Bank. This also disposes of the connected CMs.
64. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar 11.11.2020 Syed Ayaz Hussain, Secy
i) Whether the judgment is approved for reporting: Yes
ii) Whether the judgment is speaking: Yes SYED AYAZ HUSSAIN 2020.11.11 11:42 I attest to the accuracy and integrity of this document