Kerala High Court
Sreekumar V.D vs Union Bank Of India on 4 January, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940
WP(C).No. 6452 of 2015
PETITIONER :
SREEKUMAR V.D.,
AISWARYA, EANGAPUZHA,
PUTHUPPADI P.O., KOZHIKODE,
KERALA-673 566,
EARLIER WORKING AS ASSISTANT MANAGER
MARKETING IN UNION BANK OF UNDIA,
LOAN POINT BRANCH, KOZHIKODE.
BY ADVS.SRI.S.PRASANTH (AYYAPPANKAVU)
SMT.VARSHA BHASKAR
RESPONDENTS :
1. UNION BANK OF INDIA,
REGIONAL OFFICE, KOZHIKODE-673 001,
REP. BY THE GENERAL MANAGER.
2. GENERAL MANAGER (P& HR),
DEPARTMENT OF PERSONNEL,
MANPOWER PLANNING AND RECRUITMENT DIVISION,
CENTRAL OFFICE, UNION BANK OF INDIA,
UNION BANK BHAVAN, 239,
VIDHAN BHAVAN MARG, NARIMAN POINT,
MUMBAIR-400 021.
3. UNION BANK OF INDIA,
UNION LOAN POINT BRANCH, KOZHIKODE,
REP. BY THE MANAGER,
COLOMBO COMPLEX M.MALI ROAD,
PALAYAM, KOZHIKODE-673 001.
BY ADV. SRI.A.S.P.KURUP, SC, UBI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-06-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
EL
WP(C).No. 6452 of 2015 (F)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT P1 : TRUE COPY OF THE APPOINTMENT LETTER ISSUED BY THE 2ND
RESPONDENT
EXT P2 : TRUE COPY OF THE INDEMNITY BOND EXECUTED BY THE PETITIONER.
EXT P3 : TRUE COPY OF THE APPOINTMENT LETTER DATED 04-01-2013 ISSUED BY
THE CORPORATION BANK TO THE PETITIONER.
EXT P4 : TRUE COPY OF THE BANK STATEMENT OF THE PETITIONER SHOWING THE
PAYMENT MADE TO THE 3RD RESPONDENT BRANCH.
EXT P5 : TRUE COPY OF THE REPRESENTATION DATED 29-09-2014 SENT BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXT P6 : TRUE COPY OF THE EXTRACT OF THE GUIDELINES FOR ADMINISTRATIVE
MINISTRIES/DEPARTMENTS AND PUBLIC SECTOR ENTERPRISES ISSUED BY
THE DEPARTMENT OF PUBLIC ENTERPRISES
RESPONDENT(S)' EXHIBITS
NIL
TRUE COPY
P.S. TO JUDGE
EL
9.7.2018
P.V.ASHA, J.
W.P.(C) No.6452 of 2015
Dated this the 26th day of June, 2018
JUDGMENT
The petitioner is aggrieved by the realisation of the sum of Rs.2,50,000/- from him on the ground that he left the respondent bank before completion of three years' service.
2. The petitioner was appointed as Assistant Manager in the Union Bank of India as per Ext.P1 order dated 19.09.2011. As per the terms of the appointment, the petitioner was required to execute a service indemnity bond undertaking to serve the Bank for a minimum period of three years or else a sum of Rs.2,50,000/- shall be paid to the bank in case he resigned from the services of the bank before completing the stipulated minimum service period of three years. He was directed to produce a blank non judicial stamp paper, issued in his name at the time of joining, of the appropriate value in accordance with the State Stamp Laws applicable to the State of his joining/posting. Accordingly, the petitioner executed Ext.P2 indemnity bond undertaking that he would pay a sum of Rs.2,50,000/- in case he leaves the bank before completion of three years and agreed that in the event of failure to make the said payment it can be realised by the bank from the benefits due to him and that the said amount will constitute a debt owing to the employer bank recoverable along with W.P.(C) No.6452/2015 :2: interest at 18% per annum from the date of breach of any of the conditions till repayment. While working as Assistant Manager the petitioner got appointment in the Corporation Bank as Probationary Manager, as per Ext.P3 selection memo. After remitting the sum of Rs.2,50,000/- petitioner got relieved from the Union Bank and joined the Corporation Bank. Thereafter he submitted Ext.P5 representation before the Regional Manager, Union Bank of India requesting for refund of the amount stating that the bank has not suffered any loss or incurred any liability on account of his relief. He also pointed out that the guidelines issued for public sector enterprises provides that the bond shall not be enforced in case the employee is joining another public sector undertaking. In that guidelines issued by the Department of Public Enterprises in DPE O.M.No.15(2)/2003-DPE(GM)/GL-57 dated 29.07.2004 it was directed to ensure that the requirement of obtaining a fresh bond from a person, where necessary, is fulfilled, the enterprise with whom the employee has executed the original bond may at the time of forwarding his application write to the organization etc. under whom the employee intends to take up another appointment intimating them about the bonded obligation of the individual and clarifying that in the case of his selection for the new post, he would be relieved subject to the condition that the new W.P.(C) No.6452/2015 :3: organisation take from him a fresh bond binding him to serve them for the balance of the original bond period. Therefore the learned counsel for the petitioner submits that since the petitioner's appointment was in another nationalized bank it was not necessary for the Union Bank to recover the bond amount from him. Therefore he is entitled to get the amount refunded.
3. The respondent bank has filed a counter affidavit stating that the petitioner who got appointment and enjoyed the benefit of Ext.P1 offer of appointment and executed an undertaking before the bank by furnishing an indemnity bond, is bound by the undertaking and to obey the terms and conditions contained in Ext.P1 order of appointment or in Ext.P2 bond. According to the bank, the bank has only acted in accordance with the terms of Ext.P1 offer of appointment as well as Ext.P2 bond. It is their contention that the enforcement of the bond is not either in violation of Article 19 of the Constitution of India or contrary to any public policy.
4. The learned counsel for the petitioner relied on a Single Bench judgment dated 08.08.2012 of the High Court of Kartanataka in WP(C) No.32844 of 2009, in which in identical circumstances the employee of the Vijaya Bank, who submitted resignation to take up another employment, had made payment of the sum of Rs.2,00,000/- in W.P.(C) No.6452/2015 :4: accordance with the terms of the offer of appointment and the indemnity bond he had executed, since he got relieved from the bank before completion of the requisite period. Even though the respondent bank contended that the petitioner therein was bound by the conditions of the bond, it was held that it was an unconscionable contract which cannot be enforced. Following the Division Bench judgment of that court in W.A.No.2736 of 2009 dated 09.12.2009, following the judgment in Central Inland Water Transport Corporation Ltd. Vs. Brojonath MANU/SC/0439/1986 :(1986) 3 SCC 156, the learned single Judge allowed the writ petition and it was held that the terms in the indemnity bond were unconscionable and unenforceable.
5. The case of the petitioner is also similar. As pointed out by the learned counsel for the petitioner the respondents do not have a case that the petitioner was imparted any special training or granted any special facility during the period of employment under the respondent bank, thereby effecting any loss to them in any manner. Though it is true that petitioner agreed to pay a sum of 2.5 lakhs, it is pertinent to note that an unemployed hand like petitioner would not have any other option except to agree to the terms when an appointment is offered to him. He would surrender before the unequal bargaining power of the W.P.(C) No.6452/2015 :5: employer by acceding to any demand. The observations of the apex Court, in Central Inland Water Transport Corporation's case, while considering the validity of rule 9(i) of the b