Calcutta High Court
Bandana Dey vs United Bank Of India And Others on 18 April, 2019
Equivalent citations: AIRONLINE 2019 CAL 152, (2019) 4 SCT 17 (2019) 6 SERVLR 717, (2019) 6 SERVLR 717
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 167 of 2017
Bandana Dey
Versus
United Bank of India and Others.
For the petitioner : Mr. Sudeep Sanyal, Advocate
Mr. Sukanta Das, Advocate
Ms. Lopamudra Moitra, Advocate
Ms. Tutun Das, Advocate
For the respondents : Ms. R. N. Majumdar, Advocate
Mr. Sourav Chakraborty, Advocate Mr. Supratim Bhattacharjee, Advocate Heard on : 02.05.2017, 04.09.2018, 11.09.2018, 11.01.2019, 18.01.2019 Judgement on : 18.04.2019 The Court : The case of the petitioner is that her husband was engaged as a canteen boy of the United Bank of India (the bank, for short) in October, 1979. Subsequently by an appointment letter, 2 dated March 10, 2004, he was made a probationary relieving sub- employee at Chelod Branch of the said bank.
On September 6, 2006 the husband of the petitioner died. He is survived by his wife i.e., the petitioner herein and a son who was aged about two years. The petitioner made an application for appointment on compassionate ground on October 10, 2006. The respondents informed the petitioner to request the bank to consider payment of ex gratia lump-sum amount as the claim for compassionate appointment had been discontinued. The petitioner complied with all the formalities for the same. On December 4, 2007 the respondent no. 2 informed the petitioner that she is ineligible for the payment of ex gratia lump-sum amount.
By a communication, dated January 18, 2008 the respondents informed the petitioner that owing to adverse police report of her husband's character and antecedent his appointment was summarily terminated. At this she made a representation to the Chairman-cum-Managing Director of the bank about the competence of the bank to terminate the employment of a dead man after two years without considering the bank itself had asked the 3 petitioner to submit necessary documents for payment of ex gratia lump-sum amount.
The respondent no. 2 informed the petitioner that if any adverse police report was received on the character and antecedent of the employee subsequent to the appointment of the bank his service would be summarily terminated and it has followed the said procedure in the case. By a subsequent communication, the petitioner was further informed that the benefit under the concerned scheme is extended to the dependent members of a confirmed employee of the bank who expires while in service. The bank authorities informed the petitioner that since her husband was not a citizen of India on the date of his appointment she would not be entitled to any benefit of the scheme. The respondents alleged that her husband in his application had suppressed his nationality and gave a false declaration. Therefore, had he been alive his appointment would have been summarily terminated.
The petitioner made several representations and lastly by a lawyer's notice, dated September 26, 2016 she asked the respondents to release ex gratia payment in lieu of compassionate 4 appointment on the death of her husband. To this, the Bank again informed that due to false declaration made by her husband the petitioner's husband would have been terminated in terms of Clause 7(e) of the appointment letter had he been alive.
The petitioner has challenged the decision of the bank by this petition and has inter alia prayed for a writ in the nature of mandamus commending the respondents to do their statutory duties and to grant ex gratia lump-sum payment or appointment her on compassionate ground in terms of the relevant circular prevalent at the time of the death of her husband and for other ancillary reliefs.
The bank has contested the petition by filing an affidavit-in- opposition. It has been the contention of the respondents that the appointment of the deceased husband of the petitioner was established to be void by reason of his not being a citizen of India. As such the question of appointing the petitioner on compassionate ground did not arise. It has been established by the police verification report that her husband was not a citizen of India but of Bangladesh. Possessing a ration card or enlisting the name in the 5 voter's list or enrollment in the employment exchange did not establish that her husband was a citizen of this country. The husband of the petitioner was initially appointed by the canteen committee to which there was no representative from the side of the management. The canteen committee had its own independent status and terms and conditions of service. In the appointment letter for the post of probationary relieving sub-employee it was specifically provided that the appointment would be subject to receipt of satisfactory report on the character and antecedent from police authorities and if adverse report was received the service would be summarily terminated.
It has been specifically stated in the affidavit-in-opposition that long after the death of the husband of the petitioner, the respondent bank got the police verification report in which it was reported that he was not a citizen of India but was actually a citizen of Bangladesh. In view of such a report the appointment of the husband of the petitioner was void ab initio. Consequently the claim for any ex gratia payment or compassionate appointment has no basis. The bank prayed for dismissal of the writ petition. 6
In her affidavit-in-reply the petitioner had largely reiterated her stand in the writ petition and specifically mentioned that she is entitled to file the writ petition. She has stated that the appointment of her husband could not be termed to be void by reason of his not being a citizen of India. She relied on the voter's identity card to establish that her husband was a citizen of India. The doubtful police report was given eight months before her death. A departmental enquiry should have been initiated after affording the husband an opportunity of being heard. But the bank did nothing.
The petitioner has denied that it was established by the police verification report which was conducted as a post pre-employment formality that her husband was not a citizen of India. After the Election Commission had issued the voter's identity card a dubious police verification report is not sufficient to prove that her husband was not a citizen of India. The police verification report was received by the bank when her husband was alive but the authorities did not take any action nor did they initiate any disciplinary proceeding against him. After his death when the relationship of employer and employee had ceased to exist it was not open to the respondents to 7 dismiss her husband from service. Since the alleged order of termination had not been annexed to the writ petition she has expressed her doubt about its existence. Since her husband was a confirmed employee, her service could not be terminated without a disciplinary proceeding.
Mr. R.N. Majumdar, the learned Advocate for the respondents, submitted that it had been established by the police verification report that the husband of the petitioner was not a citizen of India, but was a citizen of Bangladesh. The police report has also raised doubt about the educational qualification of the petitioner which, according to the respondents, made him ineligible for the post.
Mr. Majumdar relied on the judgment in the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, reported in (1994) 4 SCC 138, for a proposition that the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis. Mere death of an employee-in-harness does not entitle the family to a source of livelihood through a post. The government (as in that case) has to examine the financial condition of the family of the deceased and if it is satisfied that but for the 8 provision of employment the family will not be able to meet the crisis a job is to be offered to the eligible member of the family.
This judgment has been relied on by Mr. Majumdar in justification of the decision of the Bank and more particularly to prove that since the petitioner is getting family pension she is no in penury. Compassionate appointment is given to save a family from destitution.
When the respondent relied so much on the police verification report they plainly failed to answer the most important question which has arisen in this writ petition. The report was admittedly received by the bank on January 5, 2006 and not long after the employee's death as wrongly mentioned in the affidavit. The petitioner's husband died eight months after that and the bank never sought to answer what it was actually doing all these months. If they now consider that the appointment was void ab initio they could have initiated appropriate steps during the lifetime of the petitioner's late husband. Instead of doing that the authorities allowed him to work for eight months without letting him know that 9 the report of the police verification had been received and it was adverse to him.
The unusual conduct of the respondents did not end with that. When the petitioner made an application for appointment on compassionate ground the bank authority had informed her that as per the existing policy she might request the bank to consider payment of ex gratia lump-sum amount as the scheme for providing the employment to the dependents of the deceased had been discontinued. They also sent the copies of the application form and the format of the affidavit.
Surprisingly about two years later the holder of the same post informed the petitioner about the adverse police report.
If the bank wanted to take an action they should have done so when the petitioner's husband was alive. When the petitioner made an application for appointment on compassionate ground the Senior Manager P.A, (A.S) of the Bank sent all the documents to her with the advice of what she was required to do. The Bank never sought to explain this conduct. It is particularly shocking that the 10 holder of the post of Senior Manager for the first time broached the issue of adverse police verification report after about two years from the date of her application.
The bank with an elaborate infrastructure cannot feign ignorance of the receipt of the police report. If they argue that they were not aware of this report earlier they have to admit serious administrative lapse and lack of coordination. If on the other hand, it was known to them but still they had sent the documents to the petitioner for applying for ex gratia lump-sum amount they must be held to be on the wrong side of the morals. When the bank alleges suppression of material fact against husband of the petitioner it should have occurred to them that they themselves have practiced it by suppressing the police verification report from the petitioner's husband.
A far more important issue to be addressed is whether the bank could declare the appointment as void ab initio without giving the petitioner an opportunity to controvert the same. An adverse police report is no more than allegation of a certain state of things against somebody. The Bank had treated it as sacrosanct and 11 observed that what had been alleged against the deceased employee had been 'established' by the report. While taking this stand it totally failed to appreciate that no allegation can be said to be "established" against a man unless he is given an opportunity to rebut it. Even a charge-sheet submitted by the police after an investigation into a criminal incident has to be established in a regular trial where the accused is given an opportunity to defend himself. Thus the bank has no reason to treat report as unimpeachable and then to sit on it. The bank decided to deny the right of the petitioner at a time when her husband was not in a position to defend himself. The authorities cannot be praised for adopting the course of action first in dealing with a Group - D employee and then with his widow.
That apart, it is doubtful if the bank authorities had applied their mind to the police report. The report makes it very clear that it was more tentative nature than a final one. After disclosing the result of the enquiry the police authorities had referred the matter to the District Magistrate, North 24 Parganas, for further verification. On such a report they could never conclude anything without affording any opportunity to the late husband of the 12 petitioner to defend himself. It is not entirely unknown that whatever that is contained in a police report does not always tell the last truth.
Since the petitioner had worked even after the expiry of the maximum period of probation and since he had also been allowed to work for eight months after receiving the police report he was to be treated to be a confirmed employee of the bank. The Supreme Court in the case of State of Punjab Vs. Dharam Singh, reported in 1968 Lab.I.C 1409 had held that where an employee is appointed or promoted to a post on probation and is allowed to continue that post after completion of the maximum period of probation without an expressed order of confirmation he cannot be deemed to continue in that post as a probationer by implication. The same was the view of the Supreme Court in the case of Wasim Beg Vs. State of U.P. and Others, reported in (1998) 3 SCC 321.
Mr. Sanyal, the learned Advocate for the petitioner, submitted that the respondents never mentioned that the service of the petitioner's late husband had been terminated. If not, I quite agree that he was in service when he died. Even if the bank had passed 13 order of termination that was entirely an ineffective one and it was never served upon him. In Bikash Bhusan Ghosh and Others Vs. Novartis India Ltd. and Another, reported in (2007) 5 SCC 591, the Supreme Court held the order of termination takes effects from the date of communication of the said order.
In Deokinandan Prasad Vs. State of Bihar and Others, reported in AIR 1971 SC 1409, the Supreme Court rejected the contention that there was no question of removal from service as the concerned officer had ceased to be in service. It was held that an opportunity must be given to a person against whom such an order was proposed to be passed.
On the top of everything the stand of the bank seems to be extremely unkind tinged with a degree of insolence. It has been submitted by Mr. Majumdar and mentioned in the written notes of submission that it was open to the bank to stop payment of pension to the petitioner as the employment of her husband was void ab initio. The bank has shown good gesture by not resorting to that action.
14
It is surprising that a nationalized bank could take such a stand. Is the bank showing any mercy to the petitioner? If the appointment of her husband was void ab initio how is the Bank paying pension to her? In other words, in that case the bank was making unauthorized payment. Alternatively, the bank knows that the payment of pension has a legal sanction, otherwise it would not have been possible for it to make any payment at all. The bank had not shown any good gesture by not stopping her pension. It knows that it was not permissible under the law.
The further submission of the bank is that the petitioner was not entitled to payment of any ex gratia lump-sum amount as her husband was not a confirmed employee. Such a submission has no legal basis. For the reason mentioned above the petitioner's husband must be deemed to be a confirmed employee on the basis of law declared by the Supreme Court.
Mr. Majumdar relied on the case of R. Vishwanatha Pillai Vs. State of Kerala and Others, reported in AIR 2004 SC 1469. This judgment has clearly no application to the facts of the present case. The Supreme Court had decided that the order terminating service 15 of appellant could not be set aside on the ground of non-compliance of the procedure under Article 311 of the Constitution of India. Moreover, since the appointment was acquired by practicing fraud Article 311 of the Constitution of India was not attracted at all. But on facts the Supreme Court held that the safeguards provided in Article 311 of the Constitution of India that a government servant should not be dismissed or removed or reduced in rank without holding an enquiry in which he has been given an opportunity to defend himself stood complied with as instead of departmental enquiry, an enquiry had been conducted by the Scrutiny Committee. The Scrutiny Committee gave due opportunity to the appellant to defend himself. Therefore, issuing a fresh notice for proving the same misconduct which had already been examined by an independent body constituted under the direction of Supreme Court would be repetitive and futile.
In the present case, let alone giving any hearing to the deceased husband of the petitioner he was completely kept in the dark about any adverse police report and the authorities decided to act on it long after the death of the petitioner's husband. The issue is not so much which authority should give the hearing. The issue 16 is whether the deceased husband of the petitioner was at all given an opportunity to controvert the allegation contained in the police report.
Now that the respondents had taken no step after receiving the police report and the deceased husband of the petitioner is also not in a position to defend himself the bank authorities can never declare the appointment to be void ab initio or can even notionally terminate him from service. It is a fundamental principle of natural justice that no person should be condemned without hearing. In the case of Sridhar Vs. Nagarpalika, Jounpur, reported in AIR 1990 SC 307, the Supreme Court observed that an order of appointment confers a vested right in the appointee to hold the post. That right cannot be taken away without affording opportunity of hearing. Any order passed in violation of the principle of natural justice would be void.
Judged from that perspective, it must be held that the petitioner has been unjustly treated by the bank. 17
The bank is directed to take all possible steps for making payment of ex gratia lump-sum amount to the petitioner to which she is entitled in terms of the relevant scheme. In that case, the bank shall complete the process of payment of ex gratia lump-sum amount within a period of six weeks from the date of the communication of the order. This is, of course, subject to the petitioner's cooperating with the bank and furnishing the relevant data and information as may be required by the Bank authorities.
With the directions as above, the writ petition is disposed of. There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SAMBUDDHA CHAKRABARTI, J.) S. Banerjee