S.G. NANDI Vs. MANAGER, UNITED COMMERCIAL BANK

JUDGEMENT

(1.) This Rule is directed against an order dated 22nd Feb., 1977 passed by the Manager, United Commercial Bank by which the petitioner's salary for the month of Feb., 1977 was withheld on the principle of 'no work no pay' on account of his absence from office seat and failure to attend his duties during the month of Feb., 1977. That order was passed without prejudice to any other action which the bank authorities may deem fit to take against him on account of these lapses. In the first two paragraph of the said order it is stated that the petitioner had been absenting' from the office seat and neglected his work in office for a considerable time in spite of it having been circulated by the staff circular dated 26.7.76 that it was incumbent upon every employee, whether he was an office-bearer or executive committee member or an active member of the local union, that facility of union work by any employee during office hours had been totally discontinued. Despite the petitioner having been advised orally on many occasions not to be away from office seat and to work in full measure during the working hours of the bank. It was regrettable that the petitioner did not pay any heed to such instruction of the bank and had been continuing to avoid and neglect work while making his attendance in the office. The petitioner was given another opportunity to amend his conduct and attend to and discharge his allotted duties in the bank. The petitioner was further warned that at any time during the office hours if he was found neglecting his duties, the bank would take serious note of it and would be constrained to take such action against him both for absence from office seat and neglect of allotted duties as the authorities might deem fit and proper. The petitioner was appointed to the post of a clerk in 1960 in the then United Commercial Bank Limited. Thereafter he was promoted to the post of officer-employee on and from 1st Sept., 1976 and he is now working as officer employee, in the United Commercial Bank. The petitioner is the Joint Secretary of All India United Commercial Bank Staff Federation registered under the Indian Trade Union Act. It is stated in the petition that the petitioner attends his office regularly and signs attendance register and does his duties including duties as an All India Leader of the Union. It is contended in the petition that payment of salary is a condition of service and as such there is no scope for application of the principle of 'no work no pay' by the authorities. Mr. Mukherjee appearing on behalf of the petitioner in support of the Rule contended that the salary is a property and the stoppage of the payment of the salary is an infringement of the fundamental right guaranteed under Art 19(1)(b) of the Constitution. According to Mr. Mukherjee the petitioner holds a public employment being an employee of a nationalised bank and any interference with the status of an employee in public employment should be in conformity with the regulation governed by the terms and conditions of the petitioner's service and also by the principles of natural justice.

(2.) Clause (2) of Sec. 12 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 provides that the employee of an existing bank shall become an employee of the corresponding new bank on the same terms and conditions and on the same rights and would continue to enjoy these terms and conditions until the employment of the employee is terminated under the new Bank. Clause (d) of subsection (2) of Sec. 19 of the Act authorises the making of regulations dealing with the terms and conditions of service of the employees. Two such regulations have been made in Oct., 1976. One is United Commercial Bank Officer Employees (Conduct) Regulation 1976 and the other is United Commercial Bank Officer Employees (Discipline and Appeal) Regulation 1976. Regulation 13 of the Conduct Regulation provides that no officer employee shall absent himself from his duty or be late in attending office or leave the station without having first obtained the permission of the competent authority. Regulation 24 provides that the breach of any of the provisions of these regulations shall be deemed to constitute' a misconduct punishable under the United Commercial Bank Officer Employees' (Discipline and Appeal) Regulation, 1976. It is contended by Mr. Mukherjee that the impugned order dated 22nd Feb., 1977 is a colourable exercise of arbitrary power in as much as what was impossible to do directly by framing charges for misconduct under Conduct Regulation of 1976 could not be done indirectly by administering a warning and withholding the payment of salary for the month of Feb. 1976. Mr. Ginwalla appearing on behalf of the respondent contended that stoppage of salary for the month of Feb., 1977 was not a penal action. It was neither illegal nor mala fide or ill-motivated. By that order the employer was merely enforcing its common law rights under the contract of service between it and the petitioner in not granting him salary for the period during which he did not work. According to Mr. Ginwalla non-payment of salary by an employer does not amount to any infringement of right to property and moreover the petitioner could not invoke the writ jurisdiction of this court under Art. 226 of the-Constitution against the impugned order in as much as that order was not passed in contravention of the Regulations. Relaince was placed by Mr. Ginwalla on the decisions of the Supreme Court in Lekhraj Sathramdas Lalvani Vs. N.M. Saha, Deputy Custodian cum Managing Officer, Bombay & Ors. reported in AIR 1966 SC 334 , Banchhanidhi Rath Vs. The State of Orissa and others reported in AIR 1972 SC 843 and on a decision of this court in Regional Director (Food), Ministry of Food and Agriculture-Eastern Region, Government of India Vs. Arjan Singh Bhangoo, reported in 73 CWN page 267 . In Lekhraj's case the Supreme Court held that appointment of a person as a Manager by the Custodian by virtue of his power under Sec. 10(2)(b) of the Administration of Evacuee Property Act is contractual in nature and there is no statutory obligation as between the latter and former. Any duty or obligation failing upon a public servant out of a contract entered into by him could not be enforced by the machinery of writ under Art. 226 of the Constitution. In Regional Director's case a Division Bench of this Court held that contract for service could not be specifically enforced. For non-performance of such a contract the relief is in damages. The relationship of a contract for transport of goods is not capable of enforcement of rights and obligations under Art. 226 of the Constitution. In Banchhanidhi's case the Supreme Court held that there was no right to remain in service if such a right was claimed in terms of a contract or out of a custom, it cannot be enforced in a writ application.

(3.) In the instant case, no material was placed before me to show that the condition of the petitioner's service was regulated by any contract. It was true that the stoppage of the salary for a particular month does not come within the definition of "minor penalty" in terms of the Regulation. It has been held by a Division Bench of this Court in United Commercial Bank Vs. V.J.T. Vyas reported in 1976 (1) CLJ page 498 that Banking Companies (Acquisition and Transfer of Undertaking) Act of 1970 is a social legislation intended to take over the business and management of commercial Banks. The employees of such banks come within the purview of public employment. Regulation apart, the employment under the nationalised bank is public employment and as such an employee gets a status. So in the instant case the petitioner gets a public employment. I have said, that the Regulations have been framed in terms of Sec. 19 of the Act. Regulation 26 of the Conduct Regulations lays down : every provision in any agreement or resolution corresponding to any of the Regulations herein contained and in force immediately before the commencement of these regulation and applicable to the officer employees is hereby repealed. Assuming for the agreement's sake that the petitioner's service was regulated by any contract, after the enforcement of the regulation the contract, if any, was superimposed by the statutory regulation and accordingly the terms and conditions of the petitioner's service must be regulated within the four corners of the two Regulations namely the Conduct Regulation and the Discipline and Appeal Regulation. In the impugned order certain allegations have been made against the petitioner regarding his conduct. Obviously, such conduct directly contravens regulation 13 of the Conduct Rules and constitutes a "misconduct" under regulation 24. It seems that the authorities, without taking recourse to the regulations passed an order stopping the payment of the salary of the petitioner for the month of Feb., 1977. An obligation is imposed by the regulations upon the bank to follow the procedure as laid down in the two Regulations. But the Bank, without taking recourse to the Regulations, arbitrarily passed an order withholding the salary of the petitioner for the month of Feb., 1977.