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D.M. Nagaraja Setty vs The Registrar Of Co-Operative ... on 30 July, 1998 cites

Jagdish Mitter vs Union Of India on 20 September, 1963

6. The first contention raised before us by the Counsel for the appellant (this contention was not raised before the learned Single Judge) is that the order Annexure-E is not an order of termination simplicitor/non-absorption, but having found undesirable to be absorbed in the employment of the transferee bank he was terminated thus jeopardising his successfully getting another employment. According to him the words 'not desirable employee to be absorbed in the employment of the transferee bank' casts stigma and in that sense should be held to be an order of dismissal and not mere order of discharge. Reliance was placed on a judgment of the Supreme Court in Jagdish Mitter v Union of India, in which it was held that where the services of Government employees were dispensed with after recording that he was not found to be desirable to be retained in Government Service to be stigmatic which amounts to be an order of dismissal and not mere discharge from service. The submission made is without any substance. Appellant continued in the services of the transferee bank without any interruption subject to Clauses 10 and 11 of the scheme of amalgamation. He continued in the establishment of the transferee bank subject to those conditions. The action to be taken was by the screening committee after examining the records regarding desirability to absorb the said employee in the employment of transferee bank. The relationship of master and servant did not come into existence. On amalgamation if the transferee bank refuses to take an employee of the transferor bank in its service by passing an order that he is undesirable, would not amount to termination of an employee. It is refusal to take an undesirable person in service. If the employee and employer relationship is subsisting then, an order of termination on the ground of 'undesirable' is liable for attack on the ground that it casts a stigma. But where no such relationship exists and the transferee bank refuses to take an employee of the transferor bank on the ground of undesirability, then it cannot be attacked on the ground that it is stigmatic. Appellant had not yet become the employee of the transferee bank. It is not a case of termination of service by an employer but, refusal to take/absorb a person in its employment. The fact that the transferor bank was in strained circumstances and there was a moratorium is not in dispute. Powers under Section 14B could therefore be invoked. While invoking those powers certain provisions were made in regard to the continuation of the employment on the establishment of the transferor bank with the transferee bank. When one bank is merged with another bank the new bank becomes the new employer. An employee could be permitted to continue in the services of the transferee bank only if the transferee bank is satisfied about the employee's suitability. An employee could not be continued in the services against the wishes of the new employer. Such of the employees who were not acceptable to the transferee bank could not be forced on it. All the same a fair and reasonable procedure had to be established for Screening to determine the desirability or otherwise of the employees for absorption in the transferee bank. For this the screening committee was constituted which was empowered to decide the questions relating to employment and other connected matters with it. Screening committee was to decide regarding the desirability of the absorption of the employee in the transferee bank. The recommendations were then to be referred to the Registrar for the purpose of fixing the date from which the services of the employees was to be terminated. The procedure adopted cannot be stated to be arbitrary as fair amount of representation was given to the representatives of the concerned parties.
Supreme Court of India Cites 9 - Cited by 216 - Full Document

K.I. Shephard & Ors. Etc. Etc vs Union Of India & Ors on 18 September, 1987

8. Reliance placed by the Counsel for the appellant on a decision in K.I. Shephard v Union of India, to contend that the order terminating the services of the appellant without affording an opportunity of hearing being violative of principles of natural justice, is not sustainable in law, is misplaced. In the said case the amalgamation scheme under Section 45 of the Banking Regulation Act provided that some employees should be excluded from employment. It was held that the employees who were excluded should have been given a right to hear and where such hearing is not given the Court can intercede to get such benefit and the employees could not be penalised in such manner. It was also held that requirement of specific mention of the names in the draft scheme who were excluded from the employment had not been complied with and hence the final scheme published was bad. As the interest of the affected employees were excluded from employment which was in contravention of principles of natural justice, the order was struck down. In the present case the appellant was allowed to continue in employment by the transferee bank subject to paragraphs 10, 11 and 12. Appellant received a copy of the order by which he was allowed to continue in service subject to paragraphs 10, 11 and 12 and appellant accepted the employment subject to those conditions. He was allowed to continue in services in terms of the clauses thereto and the screening committee having examined the matter finding that the appellant was not desirable to continue in service recommended to the Registrar of Co-operative Societies accordingly.
Supreme Court of India Cites 19 - Cited by 482 - M Rangnath - Full Document
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