@JUDGMENTTAG-ORDER
N.K. Patil, J.@mdashPetitioner herein assailing the correctness of the impugned communication cum order dated 10th November 2006 bearing No. PW.HOSA E9 7304 2006 KSR vide Annexure C and the impugned communication dated 28th November 2006 bearing No. PW.HOSA.E.9. 8196.2006.KSR vide Annexure F issued by the competent authority of the respondent, - Bank has presented the instant writ petition seeking certiorari or such other appropriate writ, order to direction and for grant of all consequential benefits.
2. The facts of the case in brief are that, petitioner herein was appointed by the process of Direct Recruitment by respondent - Canara Bank ('' Bank '' for short) to the post of ''Officer'' in Junior Management Grade Scale I and by an order of the Bank dated 10th December 1998, she was appointed as ''Probationary Computer Programmer'', an Officer in Junior Management Grade Scale I. Subsequently, the services of the petitioner came to be confirmed on her satisfactory completion of probationary period. Petitioner has maintained an unblemished record of service and due to her honesty, integrity and uprightness, she was promoted as ''Manager'' in Middle Management Grade II on 10th June 2006. The further case of the petitioner is that, there is neither any disciplinary proceedings pending against her nor any such proceedings are contemplated against her. The only restriction on the rights of an Officer to leave the services of Bank is guided by Sub-regulation (3) of Regulation 20 of the Canara Bank (Officers'') Service Regulations, 1979 (hereinafter referred as Officers'' Service Regulations, 1979).
3. The case of petitioner is that, her case is entirely covered and governed by Sub-regulation (2) of Regulation (20) of the Officers'' Service Regulations, 1979. Be that as it may.
4. Petitioner was on a look out for better prospects and therefore, on being offered a post in Mphasis, petitioner submitted a notice of resignation dated 28th October 2006 in the format prescribed by the Bank . A copy of the resignation application dated 28th October 2006 is herein produced as Annexure B to the writ petition. In her application, she has specifically stated that, she is unable to give three months'' notice since she has to join the new Company by 30th November 2006. In answer to the printed question in the format as to whether petitioner is willing to remit the amount in lieu of shortfall in notice, she has answered as ''YES''. Sub-regulation (2) of Regulation 20 of Officers'' Service Regulations, 1979 provides for a normal notice of not less than three months. Subsequently, the Bank has evolved a policy of accepting notice of less than three months, however, subject to condition that, on acceptance of notice of resignation of less than three months by the competent authority, the employee shall reimburse to the Bank the salary for the period of shortfall in the notice period. It is her specific case that, in the Department of Information Technology itself, Bank has accepted notices of resignation submitted by any number of Officers curtailing the notice period, subject to condition that, the Officer shall reimburse to the Bank the salary for the period of shortfall in notice period in the notice of resignation, petitioner has specifically explained that, she has to join the new Company by 30th November 2006 and hence, she is unable to give three months'' notice It is her further case that, petitioner has not received any specialized training by executing any bond except the routine training that every Officer in the Department of Information Technology is given. Implementation of Core Banking Solutions (CBS) was commenced by the Bank long ago in the year 2005 itself and even after such commencement of implementation of Core Banking Solutions, resignations submitted by any number of Officers in the Department of Information Technology have been accepted by the Bank and even curtailing the notice period. The same has been specifically pointed out vide Annexure G, produced along with the rejoinder filed by learned Counsel for petitioner, containing the names of Officers who have resigned/retired and transferred out of the Core Banking Solutions Project since June 2006, along with their designation, portfolio handled in CBS, date of relief and nature of relief.
5. Petitioner was shocked and surprised on coming to know that, her resignation has been rejected, without any justification and contrary to the existing Regulations of the Bank. However, acting unreasonably and highhandedly, the Bank issued an order cum communication dated 10th November 2006 vide Annexure C, to the petitioner, wherein, the Bank not only refused to curtail the notice period, but also proceeded without jurisdiction and authority, stating that, the competent authority is not inclined to consider her request for resignation till March 2007. Upon receipt of the said communication, immediately, petitioner has submitted a detailed representation dated 15th November 2006 vide Annexure D, reiterating her request to consider her application for resignation, explaining the circumstances. The Bank has not passed any order on the representation dated 15th November 2006 submitted by petitioner till 27th November 2006, on which date, petitioner herself has sent another representation vide Annexure E in furtherance of her earlier representation, stating that, her resignation dated 28th October 2006 may be treated as three months'' notice as required under Sub-regulation (2) of Regulation 20 of the Officers'' Service Regulations, 1979 and that, she may be relieved from the services of the Bank at the end of Office hours on 27th January 2007. Before giving the said representation, petitioner took up the matter with the new employer, Mphasis and requested time till 27th January 2007 to report herself. In pursuance of the said two representations submitted by petitioner, the Bank has rejected the said request of the petitioner also and by its communication dated 28th November 2006 vide Annexure F, has stated that, the Competent Authority has reiterated the earlier stand. Being aggrieved by the impugned order cum communication vide Annexure C and impugned communication vide Annexure F as referred above, petitioner herein felt necessitated to present the instant writ petition.
6. The principal submission canvassed by learned Counsel appearing for petitioner is that, the Bank cannot insist the petitioner that, she should work in the Bank till the end of March 2007 contrary to there own Regulations, resulting in infringement of fundamental rights of the petitioner guaranteed under Article 19(1)(g) of the Constitution of India to practice any profession or to carry on any occupation, trade or business as contemplated under Article 19(6) of the Constitution of India and it also denies the petitioner, right to life and livelihood guaranteed to her under Article 21 of the Constitution of India in as much as it also forces the petitioner to work with the Bank against her will which is prohibited under Article 23 of the Constitution of India. It defeats the very rule of law contemplated under Article 14 and militates against mandate of Article 16(1) of the Constitution of India. Therefore, he submitted that, the impugned action of the Bank is capricious, whimsical, unfair, unjust, unreasonable, irrational and ultra vires the Regulations, and the same is also without authority of law and grossly illegal apart from being patently unconstitutional, void and unenforceable. It is the specific submission of the learned Counsel for petitioner that, in the present case, the Bank has no authority of law, whatsoever to reject the notice of resignation submitted by petitioner. Further he vehemently submitted that, the reasons assigned by the Bank for rejecting the notice of resignation submitted by petitioner is not only ultra vires Regulation 20, but is also patently discriminatory and untenable and that, the Bank cannot act contrary to its own Regulations by putting a spanner in the career prospects of petitioner. The Bank, in fact has relieved quite a number of Officers working in the Department of Information Technology itself on accepting their resignation and voluntary retirement as the case may be during the year 2006 long after commencement of implementation of Core Banking Solutions (CBS). To substantiate his submission, he placed strong reliance on the list of Officers, working in the Core Banking Solutions Project, who have been relieved by accepting their resignations since 2006. The said list is produced as Annexure G to the rejoinder filed by learned Counsel for petitioner in reply to the statement of objections filed by learned Counsel for Bank. The said list contains the name, designation, portfolio etc. of nearly ten employees in the same Project and that, another person has also been relieved very recently. Therefore, he submitted that, the rejection of the resignation of the petitioner by the Bank defeats the rule of law as contemplated under Article 14 of the Constitution of India and militates against mandate of Article 16(1) of the Constitution of India. To substantiate the said submission further, he placed heavy reliance on Sub-regulation (2) of Regulation 20 of the Officers'' Service Regulations, 1979. He submitted that, the only power which the Bank has is in respect of curtailment of notice period. Petitioner being faced with discriminatory rejection of her request for curtailment of notice period, sought relief at the end of notice period of three months. He further placed reliance on the judgment of the Apex Court in the case of Punjab National Bank v. P.K. Mittal reported in 1989 Su (2) SCC 175 and submitted that, in view of the well settled principles of law laid down by the Apex Court in the aforesaid judgment, the Bank has no authority of law to reject the notice of resignation submitted by petitioner. Further, he vehemently submitted that, this aspect has been considered by this Court in the case of Gopichander M.L v. AndhraBank reported in 2002 III LLJ 306 , wherein this Court has held that, "the sub Regulation does not provide for any acceptance or rejection of the resignation by the employer and therefore, by operation of law, resignation would become effective on the expiry of three months notice period. Further, he placed reliance on two other judgments of the Apex Court reported in
7. Per contra, learned Counsel appearing for respondent - Bank, inter alia, contended and substantiated that, the impugned order cum communication and impugned communication vide Annexures C and F issued by Bank are in strict compliance of the relevant Regulations of the Bank. He submitted that, the request of the petitioner could not be considered due to pendency of the work in the Core Banking Solutions Project, which is scheduled to be completed by the end of March 2007 and immediately after completion of the said Project, on 31st March 2007, petitioner''s case will be considered and she would be relieved from the services of the Bank. Further, he submitted that, the Bank, has, in a crystal clear manner clarified that, Bank has initiated the process of Core Banking Solutions and has to cover over 1500 branches under Core Banking Solutions (CBS) by March 2007 and the Officers inducted to work in the Department of Information Technology (DIT) set-up are well trained to discharge the specialized nature of work and leaving the Organization in the middle of the Project will hamper/delay in completing the Project. Therefore, he submitted that, having regard to the expertise of the petitioner in the said field and since she has been associated with the implementation of the Core Banking Solutions Project since the beginning and is well versed with the requirements/modalities, she has also been assigned with the important port folio of ''Patch Management'' without which, the various branches of the Bank already introduced to Core Banking System will experience innumerable difficulties and any failure in this regard will ultimately hamper the Project of Core Banking itself. As any new person introduced will require extensive training besides sound knowledge of Banking and hitherto computerization platforms like ALPM, IBBS, BANCS 2000 etc., it will not be feasible for the Bank at this stage to look out for new recruits/substitutes, as the same leads to delay and disruption in completion of the Core Banking Project in a planner manner and public at large will be affected. It is therefore most imperative that, the key persons involved in the Project including the petitioner remain at least till the end of March 2007, on which date the Project is scheduled to conclude and the same was conveyed to her in response to her request for resignation. The contention of the petitioner that she has not received any specialized training except the routine training that every Officer in the Department of Information Technology is given, cannot be accepted for the reason that, she has been given training in Direct Recruit Officers Programme - Phase I, I Develop 2000 Seminar, Computer - Unix, Advanced DBA (Data Base Administrator), Computer - Oracle, Cheque Truncation, Computer-Oracle, and Training on customer relationship Management- CBS. Therefore, he vehemently submitted that, all that the Bank is interested is, in the importance of the customer oriented Project conceived in public interest to provide benefits to the customers and that, individual interest must yield in favour of public interest and it is not as if the Bank is averse to her resignation or there are any other reasons to refuse her request except for the completion of a major Project conceived and put into practice which is in the mid way for public good. Further, he submitted that, when the petitioner was working as Data Base administrator, particularly, she was trained and promoted and she was not subjected to any transfer during the period despite her promotion only with a view to conceive the Project smoothly. The Bank has in unequivocal terms informed the petitioner that, the Project will need her services till at least the end of March 2007. Taking into consideration the totality of the case and importance of the Project, her request could not be considered and the same is not intentional, deliberate and that, the Bank has got all appreciation for the nature of work rendered by her and leaving the Project in midway would affect the public in general and the Bank in particular. Therefore, taking into consideration all these factors, the request of petitioner to relieve her on 27th January 2007 was refused and the said action of Bank is just and reasonable and is well within the parameter of the Regulations of the Bank and no much harm or injustice is caused to the petitioner. To substantiate the said submission, he placed reliance on particularly paragraph 112 of the judgment of the Apex Court reported in
8. I have heard learned Counsel appearing for petitioner and learned Counsel appearing for respondent - Bank for considerable length of time.
9. After careful evaluation of the entire material available on record and after considering the rival submission made by learned Counsel appearing for the parties, the points that arise for consideration in the instant case are:
I] WHETHER the impugned communication cum order and the impugned communication issued by the competent authority of the respondent - Bank vide Annexures C and F are sustainable in law?
II] Whether the respondent - Bank is justified in not accepting the resignation of petitioner contrary to the mandate of Sub-regulation (2) of Regulation 20 of the Canara Bank Officers'' (Service) Regulations, 1979?
10 Reg. Points (i) and (ii): After careful perusal of the impugned communication cum order dated 10th November 2006 and the communication dated 28th November 2006 vide Annexures C and F respectively issued by the competent authority of the Bank, it is manifest on the face of the reasons assigned for not accepting the resignation submitted by the petitioner that, the respondent - Bank has committed an error of law, illegality and material irregularity. It is significant to note that, as per Sub-regulation (2) of Regulation 20 of the Officers'' Service Regulations, 1979 "An Officer shall not leave or discontinue his service in the Bank without first giving a notice in writing of his intention to leave or discontinue his service or resign. The period of notice required shall be 3 months and shall be submitted to the competent authority as prescribed in these regulations.
Provided further that the competent authority may reduce the period of 3 months or remit the requirement of notice."
Therefore, under Regulation, an employee Officer may choose to resign from the services of the Bank but sub-regulation mandates that before resigning or leaving the services of the Bank, to serve a notice in writing of such proposed intention of resignation. The employee officer is entitled to choose a date with effect from that date his or her resignation would be effective and give notice to the employer accordingly. The only restriction is that the proposed date should not be less than three months from the date on which the notice is given of the proposed resignation. The proviso contemplates that in a case where the employee officer desires that his resignation should be effective even before the expiry of three months or without notice being given to him, the prescribed authority on such a request may either reduce or waive the notice period, if it considers fit to do so. This sub-regulation does not provide for any acceptance or rejection of the resignation by the employer. Therefore, by operation of law, resignation would become effective on expiry of three months notice period. In the instant case, petitioner has specifically pointed out in her representation that, three months notice will expire on 27th January 2007. The Bank authority has no other option but to relieve the petitioner from the services of the Bank as per mandate of the Regulation as referred above. Therefore, the stand taken by the respondent in their objections and reasons assigned in the impugned order cum communication vide Annexure C cannot be sustained.
11. Further, as rightly pointed out by learned Counsel for petitioner, Regulation 20(2) of Punjab National Bank (Officers'') Service Regulations, 1979 had come up for consideration before the Apex Court in the case of Punjab National Bank v. P.K. Mittal 1989 Su (2) SCC 175 and the same is in para materia with Sub-regulation (2) of Regulation 20 of the Officers Service Regulations, 1979 which is in force in the respondent - Bank, wherein the Apex Court has held thus:
We have given careful thought to this contention of the learned Counsel and we are of the opinion that the High Court was right in the conclusion it reached. Clause (2) of the Regulation 20 makes it incumbent on an officer of the Bank, before resigning to serve a notice in writing of such proposed resignation and the clause also makes it clear that the resignation will not be effective otherwise than on the expiry of three months from the service of such notice. There are two ways of interpreting this clause. One is that the resignation of an employee from service being a voluntary act on the part of an employee, he is entitled to choose the date with effect from which his resignation would be effective and give a notice to the employer accordingly. The only restriction is that the proposed date should not be less than three months from the date on which the notice is given of the proposed resignation....
...It would have normally automatically taken effect on either of those dates as there is no provision for any acceptance or rejection of the resignation by the employer, as it to be found in other rules, such as the Government Services Conduct Rules.
In the instant case, petitioner has submitted notice of resignation on 28th October 2006. Petitioner has sought curtailment of two months notice period and the same was not agreed to by the Bank. The only power which the Bank has is, in respect of curtailment of notice period. It is the case of petitioner that, when her request for curtailment of notice period was rejected, she has sought for relieving her at the end of statutory notice period of three months. The Bank has no authority of law whatsoever, to reject the notice of resignation submitted by petitioner in the prescribed format nor is it the case of respondent - Bank that, petitioner''s notice of resignation is liable for refusal by the Bank as mentioned under Sub-regulation (3) of Regulation 20. Hence, the action of Bank is unsustainable. When the Bank itself has relieved nearly a dozen of Officers working in the Bank in the Information Technology wing itself, on accepting their resignation or voluntary retirement, as the case may be, during the year 2006, much after the commencement of Core Banking Solutions Project, the reasons assigned for rejecting the notice of resignation submitted by petitioner are not only totally ultra vires the Sub-regulation (2) of Regulation 20 of the Officers'' Service Regulations, 1979, but is also patently discriminatory and hits Article 14 of the Constitution of India.
12. Petitioner has not suppressed anything in her resignation application submitted by her in the prescribed format dated 28th October 2006 vide Annexure B. She has specifically pointed out at item No. 4 in the said application the reason for Voluntary Retirement/Resignation as "Better Prospects - Mphasis, Koramangala, Bangalore as Project Lead". Nor it is the case of respondent - Bank that, they are exercising power under Sub-regulation (3) of Regulation 20. The only reason given by Bank is that, the Bank has initiated the process for implementation of Core Banking Solutions (CBS) and has to cover 1500 branches under Core Banking Solutions by March 2007 and that, the Officers inducted to work in Department of Information Technology (DIT) set up are well trained to discharge the specialized nature of work and leaving the Organization in the middle of the Project will hamper/delay the completion of the project. The said reason assigned for rejecting the resignation application submitted by petitioner is not at all justifiable when the respondent - Bank itself has accepted nearly a dozen of Officers working under the Core Banking Solutions Project, as per the list of Officers, so relieved from the services of the Bank, vide Annexure G to the rejoinder filed by learned Counsel for petitioner in reply to the objections filed by Bank. The said list consists often Officers, who are being relieved of the services of the Bank and it is orally submitted that, one more Officer working in the same wing (DIT) has been relieved very recently by the Bank. Therefore, it does not lie in the mouth of respondent - Bank to say that, since specialized training in respect of the Core Banking Solutions has been given to petitioner, she cannot be relieved till the end of March 2007 when the fact is otherwise, as stated above. The petitioner is before this Court, seeking enforcement of her rights under the Officers'' Service Regulations of the Bank. Therefore, the reliance placed by learned Counsel for respondent - Bank regarding convenience cannot be the basis for rejection of statutory rights of petitioner. In reply to the said stand taken by learned Counsel for respondent, learned Counsel for petitioner placed reliance on the judgment of the Division Bench of this Court regarding convenience reported in Santhanam v. Union of India and Anr. decided on 24th March 1969 reported in 1969 (1) Mys. L J 591 Santhanam reported in 1969 MLJ 591 wherein the Division Bench of this Court has held that, the plea of inconvenience cannot be accepted, as in interpreting the Rule 14(8), the inconveniences that may be caused to respondent cannot be taken into consideration. The observation of the Apex Court while interpreting Rule 14(8) in one other decision is as under:
Indeed, it is the duty of the Court to give full effect to the language used by the legislature. It has no power either to give that language a wider or narrower meaning than the literal one, unless the other provisions of the Act compel it to give such other meaning.
Therefore, by applying the principles underlying the aforesaid observation of the Supreme Court, it is crystal clear that, the terms of the Rule are clear and the petitioner has a right to seek the assistance of any other Government Servant. If the ratio of the aforesaid principles of law laid down by the Division Bench of this Court coupled with the well settled law laid down by the Apex Court is taken into consideration and after evaluation of the relevant material available on file, including the existing Regulations of the Bank, I find that, the terms of Sub-regulation (2) of Regulation 20 of the Officers'' Service Regulations, 1979 is amply clear and petitioner is therefore entitled to be relieved from the services of the Bank as per the relevant regulations of the Bank. But, in the case on hand, unfortunately Bank has rejected the application of resignation submitted by petitioner on irrelevant grounds and much contrary to their own Regulations and their action in relieving similarly situated Officers like the petitioner herein. Nor it is the case of respondent - Bank that there is any disciplinary proceedings pending adjudication or contemplated against the petitioner. If there is no such disciplinary proceedings pending against the petitioner, then, the respondent ought not to have come in the way of the petitioner''s future prospects and her decision to join the new Company, by pursuing her career in the specialized subject of her choice.
13. Further, the Apex Court in the case of Reserve Bank of India and Anr. v. Cecil Dennis Solomon and Anr. (supra) has observed that, "In service jurisprudence, the expressions "superannuation" "voluntary retirement", "compulsory retirement" and "resignation" convey different connotations. Voluntary Retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that, in case of resignation, it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in the case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal''s case, (supra), while interpreting Regulation 20(2) of the Punjab National Bank Regulations, the Apex Court held that "resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of resignation by the employer."
14. As rightly put by learned Counsel for petitioner, the nature of work of petitioner in Patch Management is that of a clerical job and bulk of which would arise in the night shift between 10 P.M. and 6 A.M. and some of which would also arise in the afternoon shift from 2.00 P.M. to 10 P.M. and there is absolutely negligible patch work in the morning shift from 6 A.M. to 2 P.M. and that, petitioner has always been only in the morning shift and has never worked in the branch of the Bank and that, the assertions of the Bank about the knowledge of the petitioner about Banking are clearly false. Further, it is the case of petitioner that, she has not been trained by the Bank in any legacy systems such as BNCS 2000, IBBS and ALPM when there are large number of other Officers in the respondent - Bank who have undergone those training and who have tendered their resignation and voluntary retirement and the same are accepted and relieved from the services of the Bank. Petitioner is not seeking any favour from the respondent - Bank to redress her grievance for enforcement of the Regulations as referred above. Therefore, the submission made by learned Counsel for respondent regarding convenience cannot be accepted and denial of the statutory right of the petitioner, especially when her services in the Bank has been appreciated and that, now she wants to better her prospects, is not just and proper. Therefore, the respondent - Bank ought to have accepted the resignation and relieved the petitioner from the services of the Bank instead of issuing the impugned communication cum order vide Annexure C, which is highly unjustifiable. Therefore, I am of the considered view that, the reasons assigned for rejecting the application of resignation submitted by petitioner cannot be sustained. When the petitioner has submitted a detailed representation dated 15th November 2006 vide Annexure D and specifically pointed out that, she has shown an extraordinary level of dedication towards the Bank and specifically towards the Project and that, she would like to leave the Bank as a parting image of her service and that, she is a sincere worker with consistently good records till date and she has not had any disciplinary issues with the Bank and also specifically pointed out that, as on date, there are no outstanding bonds that she has signed with the Bank, and since June 2004, she has been working in the Core Banking Project and has worked selflessly and voluntarily, the respondent - Bank ought to have looked into the genuine and valid reason assigned by petitioner and considered her case to enable her to better her prospects. Instead of that, the Bank, upon receipt of the said representation, has issued the impugned communication dated 28th November 2006 vide Annexure F, rejecting her request in one line stating that, the authority has reiterated the earlier stand and lodged the representation at their end. The said reasons given in the communication at Annexure F is also not justifiable, especially when the Bank has considered the request of several other employees similarly situated like the petitioner by accepting their voluntary retirement or resignation as the case may be and there are several employees at the disposal of the respondent - Bank for the said purpose. This is nothing but vindictive attitude of the Bank towards the petitioner in not taking into consideration the ground reality and request of petitioner. The Bank, being the statutory Organization, being aware of the well settled principles of law laid down by the Apex Court and this Court in series of matters and having the assistance of the well trained legal luminaries, ought not to have forced the petitioner to invoke the extraordinary jurisdiction of this Court to redress her grievance as envisaged under Articles 226 and 227 of the Constitution of India.
15. So far as the reliance placed by learned Counsel appearing for respondent - Bank in the case of
16. Having regard to the facts and circumstances of the case, as stated above and having regard to the legal aspect of the matter, I am of the considered view that, at any stretch of imagination, the impugned communication cum order at Annexure C and the impugned communication at Annexure F, both issued by the competent authority of the Bank are highly unsustainable and hence, the same are liable to be set aside.
17. In the light of the facts and circumstances of the case, as stated above, the writ petition filed by petitioner is disposed of with the following directions:
I] The writ petition filed by petitioner is allowed;
II] The impugned communication cum order dated 10th November 2006 bearing No. PW.HOSA.E.9.7304.2006 KSR and the impugned communication dated 26th November 2006 bearing No. PW.HOSA.E.9. 8196.2006 KSR both issued by the competent authority of respondent - Bank vide Annexures C and F respectively are hereby set aside;
III] The respondent - Bank is directed to accept the resignation submitted by petitioner, as envisaged under Sub-regulation (2) of Regulation 20 of the Canara Bank Officers'' Service Regulations, 1979 and to proceed further in accordance with law and the Regulations forthwith.
