Calcutta High Court
Shib Shankar Mukherjee vs Allahabad Bank & Anr on 17 December, 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 480 of 2007
G.A. No. 1996 of 2007
Shib Shankar Mukherjee
Vs.
Allahabad Bank & Anr.
For the Petitioner : Mr. Moloy Bose,
Mr. Saptangshu Basu,
Mr. Shibnath Bhattacharyya.
For the Respondents : Mr. Shaktinath Mukherjee, Sr. Adv.
Mr. Jawaharlal De.
Judgment on : 17.12.2008.
S.P. Talukdar, J.: The facts of the present case may briefly be stated as
follows:-
Respondent No. 1, Allahabad Bank, issued a Circular bearing No. 6582/PA/2000/27 dated 28th October, 2000 communicating the formulation of a "Scheme for Voluntary Retirement and Sabbatical Leave for Officers and Employees" (hereinafter referred to as the said 'Scheme') for its permanent employees who have completed and/or are completing 15 years of service or 40 years of age as on December 31, 2000. The said scheme, as a special measure valid up to 31st March, 2001 in the form of golden handshake provided an option to the said permanent employees to seek voluntary retirement and be entitled to an ex-gratia amount being 60 days' salary. Such scheme was with the object of assisting the bank to optimize the human resource and achieve a balanced age and skills profile compatible with its business strategies including constant upgradation of the skill, creating opportunities for lateral as well as vertical career progression in consonance with new business opportunities.
The petitioner duly fulfilled all the eligibility criteria as contemplated in the said circular and was not barred from being granted voluntary retirement by any of the restrictive covenants contained in the said scheme. The petitioner has been working as Chief Manager (EDP) for more than six years and for the last three years, he has been on virtual stagnation and has not received any increase in basic salary. In the promotion process held in 1999, he was not promoted to the next higher post of AGM, in spite of his eligibility and doctoral qualifications in computer science, while a generalist Chief Manager without any background or experience in computers was promoted to the post of AGM, computer department. This indicates that petitioner's service is not required in the interest of the bank. His job responsibilities do not justify his qualifications and the background, which he possesses. This demotivated to the petitioner to a great extent and it is, thus, difficult for him to contribute to the bank's computerization process in his present state of mind. The mother of the petitioner is old, ailing and bed-ridden being solely dependent on him. He is also required to attend certain cases pending in the Court at Calcutta involving his properties.
In such circumstances, the petitioner submitted an application on 18th December, 2000. After about three months i.e. on 13th March, 2001, he received a cursory letter bearing No. Admn/5/VRS/3369 purportedly issued by the Assistant General Manager (PA) thereby rejecting his request. Such rejection was not sought to be backed up by any rational or cogent explanation. The petitioner duly fulfilled all the eligibility criteria described in the said scheme. It was, thus, incumbent on the part of the respondent No. 1 to accept his request for voluntary retirement. The rejection of the request was mandatorily required to be by a reasoned order to be recorded in writing by the competent authority. Thus, the said communication dated 13.3.2001 is bad in law, illegal and null and void and the same is liable to be quashed.
This prompted the petitioner to approach this Court for redressal of his grievances. Respondent No. 1 contested the case by filing Affidavit-in-Opposition whereby all the material allegations made by the writ petitioner have been denied.
Referring to the earlier application being W.P. No. 815 of 2001 and the appeal arising therefrom being A.P.O. No. 165 of 2003, it was claimed that the competent authority, as directed, reconsidered the request of the petitioner for voluntary retirement under the Voluntary Retirement Scheme, 2000. Upon such reconsideration, the said authority decided that the service of the petitioner is necessary and essential for the interest of the bank. It refused to release the petitioner from the bank under the scheme in terms of Circular dated 28th October, 2000. Such rejection was made after recording the following reasons:-
i) It is observed that in accordance with paragraph 10(a) of the Bank's circular dated 28.10.2000 the acceptance of the Voluntary Retirement is the prerogative of the bank and the bank is authorized to accept the request for voluntary retirement or reject the same depending upon the exigencies/requirements of the bank;
ii) That on going through the service record of Sri Mukherjee, I observe that he is a qualified engineer having experience in Computer Science. He was appointed as directly recruited Specialist Officer straight way in Scale-III and thereafter he was promoted in Scale-IV of the bank;
iii) That in the banking industry of the country, computerization is an emerging field of utmost importance and day-by-day IT personnel are to play a vital and significant role. It is necessary that the skilled and experienced personnel appropriately guide and contribute to achieve the target of the bank to make it comparable with the foreign counterparts;
iv) The computerization is a developing arena of the bank and requires services of the skilled and experienced officer in this area. Their role, now a days, are absolutely necessary and important. Expertise, skill and experience in the area of computer applications takes a dominant role in the development of the bank;
v) That in consideration of Sri Mukherjee's knowledge and expertise, the bank has earlier utilized his services in training faculty for training the bank's personnel in this field and presently also utilizing his service in the important field of Computer Training at various Staff Colleges of the bank;
vi) That Sri Mukherjee's contribution to the bank and his knowledge in the area of Information Technology concerning the bank is now spreading over in the different parts of the bank and its offices. In the IT Training System, the Bank's Staff Colleges play a vital role and as such the continuity and consistency of skilled technical officials are very much important for the interest of the bank, dealing with public money in this emerging competitive field of Banking & Finance;
vii) That keeping in view all the aspects and considering the bank's interest in the area of computerization, particularly implementation of Centralised Banking Solutions, the services of Sri S. S. Mukherjee absolutely come within the very important function of the bank, more so, in this arena of Information Technology vis-a-vis new horizon of Banking world of the country which falls within the exigency of the bank, the services of Sri S. S. Mukherjee are very much required by the bank.
It was claimed that the Voluntary Retirement Scheme-2000 was a Non-Statutory Scheme and the decision regarding acceptance or refusal under the said scheme could not be subject matter of judicial review. The employee could not have derived any enforceable right nor the decision of the competent authority under the scheme could be shown to have violated any provision of the Constitution or any Statutory Rules. The subjective satisfaction of the bank that the service of an employee is required in the interest of bank, cannot be a subject matter of judicial review. Such respondent denied that the Scheme for Voluntary Retirement had given an option in absolute terms to public servant to opt for voluntary retirement or on the request made by an employee under the Scheme it is incumbent upon the respondents to consider such request favourably and the same cannot be rejected in the interest of the bank's service. Respondent categorically denied that such rejection of the application of the petitioner is discriminatory or any similarly circumstanced officer's application has been accepted.
Dismissal of the application with costs was so prayed for.
Before proceeding further, it is necessary to mention that the petitioner approached this Court earlier with an application under Article 226 of the Constitution thereby challenging the authority's refusal to extend the benefit of the Scheme for Voluntary Retirement. The said application being W.P. No. 815 of 2001 was disposed of by learned Single Bench of this Court by its judgment and order dated 14th June, 2002. While quashing the order of rejection of the claim of the petitioner, learned Court directed the appropriate authority under the scheme to decide in accordance with law the application of the petitioner within one month from the date of communication of the order.
The said judgment and order dated 14th June, 2002 was assailed by the respondent bank. Learned Division Bench of this Court by its judgment and order dated 27th September, 2006 dismissed the appeal and, thereby affirmed the order of the learned Single Bench.
Mr. Moloy Bose, appearing as learned Senior Counsel for the petitioner, submitted that the various points, as have been referred to by the respondent authority, were earlier settled thereby leaving no further scope for dealing with the same. Learned Division Bench held that the writ petitioner submitted his application opting for voluntary retirement within the time prescribed in the scheme. The writ petitioner cannot be made to suffer for the delay by the bank in refusing to accept the request of the writ petitioner on the ground that the prescribed period has expired. Learned Division Bench further affirmed the order of the learned Single Bench whereby direction was given upon the competent authority as per the scheme to take decision afresh. The stand of the respondent bank that the petitioner's request for voluntary retirement could not be accepted in the interest of the bank was not considered to be an acceptable explanation by the learned Division Bench, since the bank did not consider the petitioner as fit person for promotion in the promotional post in the computer section although he is a technical man in that field. It was further held by the learned Division Bench that the petitioner did not receive specialized training in information technology at the costs of the bank as envisaged under clause 10(b) of the said scheme to preclude the bank from accepting the offer of voluntary retirement. Learned Division Bench, thus, held that upon such ground the request of the writ petitioner should not have been refused.
It appears from the materials available on record that being so directed by the Hon'ble Court, the competent authority under Allahabad Bank Employees' Voluntary Retirement Scheme-2000 took up the matter and gave its decision on 24th November, 2006. In paragraphs- 1, 2 and 3 of the said decision at page 77, the authority referred to the earlier litigation and the orders passed therein. Paragraph- 4 relates to the service background and experience of the writ petitioner. Paragraphs- 5 and 6 relate to the need for computerization of the banking industry and how service of skilled and experienced officers is, thus, required.
For the purpose of effective adjudication of the controversy raised in the present application, I think the paragraph- 7 of the said decision is significant. The same is reproduced as :-
"In consideration of Sri Mukherjee's knowledge & expertise, the Bank has earlier utilized his services in training faculty for training the bank's personnel in this field and presently also utilizing his services in the important field of Computer Training at Staff College, Kolkata. His contribution to the bank and his knowledge in the area of Information Technology concerning the bank is now spreading over in the different parts of the bank and its offices. In the IT training system in the bank's Staff College, continuity & consistency are very much important for the interest of the bank, dealing with public money in this emerging competitive field of banking & finance.
Keeping in view all the aspects and considering the bank's interest in the area of computerization, I am convinced that the services of Sri S. S. Mukherjee absolutely come within the very important function of the bank, more so, in this arena of information technology vis-a-vis new horizon of Banking world of the country which falls within the exigency of the bank. And the services of Sri S. S. Mukherjee are very much required by the bank.
In such view of the matter, because of the exigencies/requirement of the Bank, I find the services of Sri S.S. Mukherjee is necessary and essential for the interest of the bank and as such I am not inclined to release the said Sri S. S. Mukherjee from the Bank under the Scheme for Voluntary Retirement in terms of the aforesaid Circular dated 28.10.2000 and accordingly, I reject the application dated 18.12.2000 for voluntary retirement of Sri S. S. Mukherjee."
Mr. Bose on behalf of the petitioner submitted that the only thing left open for adjudication at this stage is whether such impugned order dated 24th November, 2006 can pass the test of judicial scrutiny. It was emphatically submitted that there is no scope for exercise of jurisdiction in an arbitrary manner. It has to be exercised properly and in a just manner.
Deriving inspiration from the decision in the case of Manjushree Pathak Vs. The Assam Industrial Development Corporation Ltd. & Ors., as reported in AIR 2000 SC 2769, it was contended by Mr. Bose that the discretion of the authority in taking a decision is not unfettered but it has to be exercised judiciously.
On the other hand, Mr. Saktinath Mukherjee, appearing as learned Senior Counsel for the respondent authority, contended that there is very little scope for the writ Court to interfere. It was submitted that no employee could claim voluntary retirement as of right. Relying upon the decision in the case of Bank of India & Ors. Vs. O.P. Swarnakar & Ors., as reported in (2003) 2 SCC 721, it was contended that the relevant scheme clearly indicates that the matter relating to voluntary retirement constitutes an invitation to treat and not a proposal or an offer, the acceptance of which by an employee could fructify in a concluded contract.
The Apex Court in the backdrop of the facts and circumstances of the cases which were heard at a time along with the case of Bank of India observed that when no consideration passes from either side, it is rather the bank's acceptance of the employee's proposal that would constitute a promise and culminate in an enforceable contract. The Apex Court, after analyzing the facts of the cases before it, observed that it was open for the employee to withdraw his option for the scheme before acceptance of the same.
Mr. Mukherjee further referred to the decision in the case of Board of Trustees, Vishakhapatnam Port Trust & Ors. Vs. T.S.N. Raju & Anr., as reported in (2006) 7 SCC 664, while submitting that voluntary retirement cannot be claimed as a matter of right. It is not a proposal or an offer but it is an invitation to treat and the applications filed by the employees constitute an offer. Unless accepted in writing the application for voluntary retirement cannot be effective. In the said case, the Apex Court further held that High Court cannot direct its acceptance but can only direct its consideration.
Mr. Bose, while replying to the argument advanced on behalf of the respondent authority, submitted that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. He seems to have derived support and strength in this regard from the decision in the case of State of West Bengal Vs. Hemant Kumar Bhattacharjee & Ors., as reported in AIR 1966 SC 1061.
It was further argued that the earlier decision of the Division Bench in connection with the grievance of the writ petitioner under no circumstances could be ignored by the respondent authority and it was not just right on the part of the said authority to reject or turn down the prayer of the writ petitioner on an identical ground. While referring to the decision in the case of Rafique Bibi (Dead) by LRS Vs. Sayed Waliuddin (Dead) by LRS & Ors., as reported in (2004) 1 SCC 287, it was contended by Mr. Bose that no authority is permitted to act in an unjust or improper manner. Though it was submitted on behalf of the respondent bank that there is no allegation of malice, referring to the fact that the scheme under reference is a non-statutory one, it was contended that its alleged violation could not by any stretch of imagination be said to be any violation of constitutional provision or any statutory rule.
It cannot be disputed that the Court cannot direct an authority to allow the application seeking voluntary retirement of an employee. The discretion rests with the authority. The Court can very well direct consideration of the same. Question that arises is whether such consideration can be arbitrary? Answer is, no - certainly not.
It is not enough that the authority concerned considers the matter. The result of such consideration must reflect proper application of mind. While applying the mind, the authority concerned cannot afford to be unfair, unjust or irrational.
Mr. Mukherjee, of course, relying upon the decisions as referred to earlier, submitted that the writ Court cannot intervene in a situation like the one as made out in the present case, since there is no infringement of any legal right, far less any constitutional right.
As observed by Lord Halsbury in Quinn V. Leathem, [1901] AC 495:
"Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found."
Talking about precedent Lord Denning said :
"If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. They will be lost in 'The codeless myriad of precedent.
That wilderness of single instances.' The common law will cease to grow. Like a coral reef it will become a structure of fossils."
It was further observed :
"Let it not be thought from this discourse that I am against the doctrine of precedent.
I am not. It is the foundation of our system of case law. This has evolved by broadening down from precedent to precedent. By standing by previous decisions we have kept the common law on good course. All that I am against is its too strict application, a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must follow it certainly, so as to reach your end. But you must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches, else you find yourself lost in the thickets and the brambles. My plea is simply to keep the path to justice clear of obstructions which impede it."
(Ref: Lord Denning - a biography, 2nd Edn., Edmund Heward) Borrowing words from Lord Halsbury, it can be said that a case is only authority for what it actually decides.
It may, however, be said that the law must be certain. Yes, as certain as may be. But it must be just too. While interpreting law, a Court cannot afford to remain indifferent to the cause of justice. Our system of delivery justice does not necessarily expect the legal minds reacting to the prison of precedents (of precedents which they recognize as unjust) like a child who has shut himself in a room and screams to be let out - presumably by the legislature.
In this context, it may be relevant to refer to the following observation of Lord Hailsham :-
"The fact is, and I hope it will never be necessary to say so again, that in the hierarchical system of Courts which exist in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tier."
In the context of the present case, it may very well be mentioned that the position of law is well settled by the Apex Court and there can be no dispute that merely by filing an application seeking voluntary retirement, may be in response to any scheme introduced by the authority concerned, an employee does not get a legally enforceable right. But none can, perhaps, deny him an opportunity of being considered. And, it is to be considered in the particular perspective.
The contention of Mr. Bose that the ground for rejecting the application for compassionate appointment as mentioned in the impugned order is deceptively similar, if not identical, to the ground for earlier rejection. Since this Court did not consider the said ground as a valid and sustainable one, it was not just on the part of the authority to take recourse to the same while rejecting such prayer for compassionate appointment.
In the considered opinion, this Court is of the view that the stand, as taken by Mr. Bose, is practically unassailable. And, by accepting the said contention, it cannot be said that this Court has sought to defy the doctrine of precedent.
The present case has a rather significant characteristic. The ground of rejection of the application filed by the petitioner seeking voluntary retirement seems to be that his service is necessary and essential for the interest of the bank. The competent authority was, thus, not inclined to release the petitioner from the bank under the scheme for voluntary retirement.
As earlier referred to, learned Division Bench did not consider such an explanation as acceptable particularly in view of the fact that the bank did not consider the petitioner as a fit person for promotion in the promotional post in the computer section although he is a technical man in that particular field or work. It was also considered by the learned Division Bench that the reasoning given that service of the petitioner is essentially required is also not acceptable. It may be mentioned that the authority concerned did not assign any other reason worth mentioning while rejecting the prayer of the writ petitioner for voluntary retirement.
Professor Wade in his treaties on administrative law stated:-
"The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law."
In public law the central principle is that a public authority must properly perform the public function assigned to it by law. It must not exceed the powers which have been entrusted to it: and it must duly perform the duties which have been laid upon it. It is the duty to inquire fairly and impartially and to decide in accordance with the law. There is duty to exercise a discretion reasonably and then to come to a reasonable decision.
In the present case, it cannot be held by any stretch of imagination that there was a fresh appreciation of the grievances of the petitioner by the competent authority. It cannot also be said that such authority acted in good faith or in just and proper manner.
Thus, the manner in which the application dated 18.12.2000 seeking voluntary retirement was dealt with by the authority concerned, and not once, but being so directed by the learned Division Bench of this Court, even on the second occasion, cannot be said to be beyond the scope of judicial scrutiny.
A public authority must act sensibly and in a transparent manner. The stand to be taken by the authority must not be mala fide or arbitrary. It cannot afford to reflect any bias or malice. Unfortunately, the order impugned does not pass the said test and such order is also found to be in violation of the principles of natural justice.
The present application being W.P. No. 480 of 2007 succeeds and be allowed. Consequently, this disposes of the application being G.A. No. 1996 of 2007.
The impugned order dated 24.11.2006 is, thus, quashed.
It appears from the materials available on record that the petitioner approached the Chairman & Managing Director by way of filing an appeal. The said authority, however, relied upon the decision taken by the General Manager (PA) & Competent Authority and did not choose to interfere. Since this aspect was not raised at the time of hearing of the argument, this Court does not consider it necessary to refer to the same. The respondent authority is further directed to consider the application dated 28.10.2000 within a period of eight weeks from the date of communication of the order and certainly in the light of observation made hereinbefore.
Action to be so taken or order to be so passed must be duly communicated to the writ petitioner within a further period of four weeks.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)