BHOPAL CO OPERATIVE BANK LTD Vs. RAMESHCHAND SAXENA

JUDGEMENT

(1.) BEING aggrieved of the orders dated 18.8.98 passed by the Joint Registrar, Cooperative Societies, Bhopal in appeal case Nos. 77-27/97 & 77-29/97 the appellant has preferred this second appeal:

(2.) BRIEF facts giving rise to this appeal are that the respondent was appointed in the appellant bank temporarily until further orders on 4.7.69. He was not confirmed or made permanent by the appellant bank. As per order dated 5.2.81 the services of the respondent was terminated by giving him one month's salary in lieu of notice under rule 51 (5) of the service rules. Respondent challenged the validity of this termination order by filing a service dispute No. 4/81 under section 55(2) of the M.P. Cooperative Societies Act, for short hereinafter referred to as Act, before the Dy. Registrar, Cooperative Societies, Bhopal on the ground that his termination order is illegal and void because no any enquiry has been conducted against him nor he was afforded an opportunity of hearing before termination of his services. While serving in the appellant bank right from 1969 till Feb. 81 he has acquired the status of permanent employee and services of such permanent employees cannot be terminated in this fashion. This dispute case was transferred to the Asstt. Registrar, Bhopal. Learned Asstt. Registrar, Bhopal after recording evidence and hearing the parties passed the impugned order dated 23.5.97 and set aside the termination order of the respondent on the ground that he was a permanent employee and termination of his services without any enquiry is illegal. He also directed his reinstatement with benefit of back wages. Against this order both the parties preferred appeal before the Joint Registrar, Bhopal, who has maintained the order of the Asstt. Registrar and also modified the same to the extent that the appellant will pay the backwages to the respondent. But before such payment it should be ensured by the appellant that during the period of his termination the respondent was not gainfully employed elsewhere. Appellant bank has preferred this second appeal on the ground that the terms and conditions of his employment were very specifically mentioned in his appointment order. He would be governed by their terms and conditions. His appointment was temporary until further orders. He was not a permanent employee. His services were terminated under rule 51(5) of the service rules". Courts below have committed error of law in holding that the respondent was a permanent employee and in setting aside the termination order. Learned Courts below have also ignored this evidence that during the period of his enforced idleness the respondent was employed gainfully in Oilfed and he was not entitled to any back wages.

(3.) LEARNED appellant counsel contended that since the respondent was appointed temporarily until further orders and his appointment order (Annex. P-1) also contained the condition that his services would be liable to be terminated at any time without assigning any reason, he is bound by these terms and conditions of his appointment and as such termination order cannot be held to be illegal, as has been held by the Courts below. Secondly he contended that the respondent was not made permanent in the services of the appellant and therefore under rule 51(5) of the M.P. Cooperative Central Bank Employees Service Rules, 1977, for short hereinafter referred to as Rules 77. This rule provides that the services of a temporary employees can be terminated without assigning any reasons by giving him one month's prior notice or one month's pay in lieu thereof. Thus in view of the provisions of this rule also, the termination cannot be assailed to be illegal in any manner. But the Courts below have committed error of law in holding that the termination order without any enquiry against the respondent was illegal and that he had acquired the status of a permanent employee. Learned respondent counsel contended that the respondent after having put in 12 years of service cannot be said to be a temporary employee and he had acquired the status of a permanent employee. He also drew my attention to the statement of appellant's witnesses - Shri Saraf, who in his cross-examination has admitted that normally the services of the Samiti Sewak are to be treated to be permanent after one year's of his satisfactory service. Appellant bank has not issued any confirmation order of any Samiti Sewak in the past. On the basis of this admission the learned respondent counsel said that the respondent was a permanent employee, as stated by Shri Saraf, appellant's witness.