Judgment:
Khwaja Mohammed Yusuf, J.
1. The petitioner's case, in brief, is that he was appointed as a cashier-cum-clerk-cum-godown clerk in United Industrial Bank Ltd in 1977 in Basirhat in the District of 24-Parganas and subsequently he was transferred to Accounts Department at Head Office at Calcutta. By Circular Memorandum No. 807 of October 14, 1980, the Bank invited applications for the post of Special Assistant from the clerks who are graduates with three years service as on October 1, 1980 and all other clerks (Under Graduates) having five years of service as on October 1, 1980, and in the said Circular the candidates were directed to state the date of appointment, qualification and their option for area of posting. The petitioner applied for the post of Special Assistant stating the option for area of posting in Calcutta or Metropolitan Area and also categorically stated therein that as he is the only son of old ailing parents, he would not be in a position to serve the Bank by staying outside Calcutta. He was successful in the written test and was directed to appear before the Interview Board and thereafter by a letter dated April 7, 1982 issued by the Deputy General Manager (P.& A.), the petitioner was informed that he has been appointed as a Special Assistant with effect from April 10, 1982 at Calcutta Main Branch of the United Industrial Bank Ltd and the petitioner accepted the same and the petitioner was serving the Main Branch of the U.I.B. Ltd since then. The Central Government put the United Industrial Bank Ltd under moratorium on June 10, 1989 and the scheme of amalgamation with the Allahabad Bank was taken up and the petitioner got a letter dated July 24, 1989 from the Deputy General Manager (P&A;), Allahabad Bank, that in terms of Section 45 of the Banking Regulation Act, 1949, the Reserve Bank has prepared a draft scheme of amalgamation of United Industrial Bank Ltd with the Allahabad Bank and the employees of the United Industrial Bank Ltd. would continue to be in service and deemed to have been appointed by the Allahabad Bank on the same remuneration and conditions of service as were applicable to them immediately before closure of business on June 10, 1989 and the petitioner was asked to intimate his decision whether he would be willing to be the employee of the Allahabad Bank with the existing service conditions of the petitioner and the petitioner replied in the affirmative. The scheme of merger came into effect on October 31, 1989 and the moratorium was lifted on the same date in all the branches of the United Industrial Bank Ltd, and the said Bank ceased to have any existence of its own from that date and the Head Office as well as all the branches of U.I.B. Ltd. became the Allahabad Bank and the petitioner signed the Attendance Register as a Special Assistant of the Allahabad Bank and he was allotted work. But on that very date, i.e. October 31, 1989 at the end of the office work the petitioner received a letter dated October 20, 1989 from the Assistant General Manager (P&A;) of the United Industrial Bank Ltd. informing the petitioner that as advised by the Allahabad Bank the authority of the U.I.B. Ltd. required the petitioner to report for duty at Ukhra Branch of Allahabad Bank in Burdwan.
2. The post of Special Assistant was created at Metropolitan, Urban and Semi-Urban branches after ascertaining the working capital of the branch concerned to be 25 lakhs in average for one year and determination of posting is made on April 1, in every year taking into consideration the working capital during financial period as stated hereinbefore. The system was settled by the Management of Allahabad Bank and the representative of All India Allahabad Bank Employees Co-ordination Committee arrived on April 22, 1989. It is further contended by the petitioner that the said settlement provided the selection for Special Assistants based upon tenure of service of the clerk and on the basis of interview by the Selection Committee and about the place of posting the option would be invited from the list of successful candidates and such option is to be exercised by those candidates within three days. According to the settlement the Special Assistant would get City Compensatory Allowance as they would be posted at Metropolitan places and they are not to be transferred from their place of posting. After the declaration of moratorium on June 10, 1989, and according to the declaration of the Reserve Bank of India, the authorities of Allahabad Bank informed all the employees of United Industrial Bank Ltd. including all the Special Assistants about amalgamation and asked the U.I.B employees to exercise their willingness in writing whether they want to be employees under Allahabad Bank with their existing status and service conditions and the petitioner accordingly in writing intimated his willingness to Allahabad Bank. On October 31, 1989, all the branches of the U.I.B were amalgamated with Allahabad Bank and became branches of the Allahabad Bank and all the employees including the Special Assistants of U.I.B became employees of Allahabad Bank and they became members of the Allahabad Bank Workers' Union and other Unions of Allahabad Bank, and the Special Assistants did their respective jobs and the petitioner as a Special Assistant joined the Red Cross Place Branch of Allahabad Bank in Calcutta. On October 31, 1989, Allahabad Bank authorities served upon some of the Special Assistants of the U.I.B including the petitioner the letter on the pad of the U.I.B signed with the back date asking them to report for duty at different branches of Allahabad Bank in the suburban areas in different districts as per advice of Allahabad Bank and the petitioner was directed to report at the Ukhra Branch of the Allahabad Bank in Burdwan. The petitioner was surprised at this transfer order. The petitioner made objection raising the point that as per settlement between the Management and Representatives of the Allahabad Bank Employees' Co-ordination Committee and the status and the conditions of service of the petitioner, he cannot be transferred from his place of posting. He also stated that at the time of his recruitment, the petitioner has specifically given his 'option' that he would not be in a position to go outside Calcutta because of family difficulties and after the interview, he was placed in Calcutta Main Branch of U.I.B but inspite of that he has been transferred to Ukhra Branch of Allahabad Bank. The petitioner challenged that Allahabad Bank authorities have acted in a most illegal, arbitrary and mala fide way as they have no authority to deviate from the settlement between the Management and the Employees' Co-ordination Committee as well as the condition of option which was taken by the petitioner at the time of his appointment and the intimation given to the employees given after moratorium to give in writing whether they want to serve the Allahabad Bank with their existing status and service conditions. He further contended that the authorities struck off the name of the petitioner from the register of the Red Cross Place Branch of the Bank without any release order and without any instruction as to what the petitioner would do with the papers and articles lying with him. The petitioner's representation referred to hereinafter has not as yet been considered. Hence the writ petition.
3. The Allahabad Bank contested the writ petition by filing an Affidavit-in Opposition. It is stated that United Industrial Bank Ltd. was placed under moratorium by Government of India's Notification of June 10, 1989 and thereafter the Reserve Bank of India decided to amalgamate the U.I.B with Allahabad Bank and forwarded to the Allahabad Bank a proposed scheme of amalgamation under Section 45 of the Banking Regulation Act, 1949. The draft scheme contemplated an option to be given to the employees of the U.I.B to join Allahabad Bank. The letter of option expressing their choice to be an employee of Allahabad Bank or not after amalgamation was displayed in all the branches of the U.I.B and was served upon all the employees of the erstwhile U.I.B including the petitioner through the U.I.B. After forwarding the letter of option, Allahabad Bank also wrote to the General Manager of the U.I.B on July 22, 1989 informing that after the amalgamation of the U.I.B with the Allahabad Bank the posting and deployment of officers and other staffs of erstwhile United Industrial Bank Ltd. will be made by Allahabad Bank depending upon requirement according to the exigencies of administration and the U.I.B was requested to bring this to the notice of all concerned. All the above informations were displayed in all the Branches of the U.I.B including Red Cross Place Branch in Calcutta and at all material times the petitioner was aware of the same.
4. It is further stated in the said Affidavit that on the scheme of re-deployment of Officers and Award Staff of the erstwhile United Industrial Bank Ltd., the Allahabad Bank advised the management of U.I.B by communication dated December 16, 1989 to issue transfer orders to some members of the Award Staff including the petitioner after merger as a measure of redeployment owing to the exigencies of administration. By Notification dated October 30, 1989 the amalgation was sanctioned under Section 45(7) of the Banking Regulation Act, 1949. It is further contended that Allahabad Bank was and is entitled to post or deploy the petitioner at the Ukhra Branch on the amalgation of the two Banks, even if the posting be considered as a transfer. Allahabad Bank was and is fuly entitled to pass such an order. It is further stated that the alleged statement which envisaged the selection and posting of Special Assistant in Allahabad Bank which came into force on April 2, 1989 has got no application in the case of the petitioner because the petitioner was posted at the Ukhra Branch and he would have been drawing his emoluments as applicable to him before June 10, 1989 at the said Branch. As the petitioner opted to be an employee of Allahabad Bank after the amalgamation, the Allahabad Bank is obliged to maintain his existing terms and conditions within the meaning of Section 45 of the Banking Regulation Act, 1949, It is further denied in the said Affidavit that according to the settlement between the management and the representatives of the Allahabad Bank Employees' Co-ordination Committee, the status and conditions of service of the petitioner cannot be interfered according to the established Rules and he cannot be transferred from his place of posting because in terms of the scheme of amalgamation he cannot claim any special advantage. The rest of the Affidavit is mere denial of the statements made by the petitioner in the writ petition.
5. In the Affidavit-in-Reply it is contended that inspite of the Circular dated July 24, 1989 the petitioner cannot be transferred to any place outside Calcutta because he was appointed as a Special Assistant and posted at Calcutta Main Branch by the authorities of the United Industrial Bank Ltd. accepting his option on condition that he should not be posted outside Calcutta and Metropolitan Area. The settlement between the management of Allahabad Bank and the representatives of All India Allahabad Bank Employees' Co-ordination Committee made on April 22, 1989 is under the provisions of Section 2(p) and Section 18(1) of the Industrial Dispute Act read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. It is further stated that in terms of the said settlement the existing number of posts of the Special Assistants in the Branches cannot be disturbed and if in any branch the number of Special Assistant is more than the norms laid down in the said settlement that would be phased out gradually as and when the vacancies caused due to retirement/death/promotions, etc. in that Branch. Therefore, it is contended that the petitioner's posting in Calcutta or Metropolitan Area as Special Assistant cannot be interfered with, not to speak of transfer out of the aforesaid areas. Thereafter, the Affidavit denies the allegation made in Allahabad Bank's Affidavit-in-Opposition and the case of the writ petitioner was reiterated.
6. Mr. Banerji the learned Counsel appearing for the petitioner, submitted that the petitioner at the time of joining the clerical staff of the United Industrial Bank Ltd. was directed to submit application stating date of appointment and qualification and option for area of posting and the petitioner very categorically stated that he is not in a position to serve outside Calcutta and must be posted in Calcutta or Metropolitan Area. The petitioner's option was accepted by the U.I.B. authorities and he was posted at the Caltutta Main Branch of the said Bank since April 10, 1982 and was not transferred there-after in view of the option exercised by him. After the moratorium on the U.I.B. on June 10, 1989 the Reserve Bank of India prepared a scheme of amalgamation of the U.I.B. Ltd with Allahabad Bank under Section 45 of the Banking Regulation Act and in terms of the proposed scheme all the employees of the United Industrial Bank Ltd. were treated to be in service and be deemed to have been appointed by Allahabad Bank on the same remuneration and conditions of service as were applicable to them immediately before the close of business on June 10, 1989. He submitted that under the provision of Section 45 of the Banking Regulation Act the conditions of service of an employee cannot be disturbed in any way by the transferee Bank. He further contended that this option of service is also invoked vis-a-vis Allahabad Bank. Mr. Banerji further submitted that the amalgamation of the U.I.B. took place with Allahabad Bank on October 31, 1989 and as such the Assistant General Manager (P&A;) of the United Industrial Bank has no authority to issue the transfer order on October 31, 1989 (the day of amalgamation) which was actually dated October 20, 1989 when the moratorium was in force. It is clarified by the learned Counsel that the Calcutta Main Branch of U.I.B. on amalgamation became the Red Cross Place Branch of Allahabad Bank without any change in place or position. It is lastly contended that because of the illegal order of transfer to the petitioner, the petitioner had to take his acquired leave and as such the entire period of leave with effect from 1stNovember, 1989 be treated as Special Leave. Mr. Banerji further contended that the Officer who issued the order of transfer is nobody of Allahabad Bank and he has no authority to issue any order of any kind whatsoever. He further pointed out that the Memorandum of Settlement hereinbefore mentioned also contains the option for posting of the employees of Allahabad Bank and pointed out its certain clauses. He strongly argued that the order of transfer of the petitioner is palpably wrong and illegal.
7. Mr. Gupta, the learned Counsel appearing for Allahabad Bank submitted that the letter of offer for the post of Special Assistants dated April 7, 1982 contained Clause 4 which specifically stated that the service of the petitioner would be transferable to any office of the Bank subject to the Rules and Regulations in the Awards and Settlements, and accordingly Clause 4 of the letter of offer became part and parcel to the conditions of service of the petitioner inspite of the fact that his initial posting was in Calcutta. He argued that it is not correct that by the first posting at Calcutta the option exercised by him had been accepted and the service remains non-transferable outside Calcutta for ever. He referred to a particular provision of the Award, known as Shastry Award, which indicates in so many words that all employees of the Bank will be transferable. Mr. Gupta, in fact, emphasised again and again Clause 4 of the letter of offer dated April 7, 1982 indicating clearly that the petitioner's service will be transferable to any office of the Bank. He further supplemented his argument by stating that the option of the petitioner relating to vacancies existing at the time when the application was invited only for the purpose of determining the first posting and the option was accepted with regard to the first posting and as such the first posting was given to the petitioner in Calcutta by the letter of offer dated April 7, 1982. Mr. Gupta further submitted that the Special Assistants may not remain as such throughout their lives, their designations may be changed and they may be promoted. As regards the communication dated October 20, 1989 he submitted that on June 10, 1989 a moratorium was imposed on the United Industrial Bank Ltd. and thereafter, a scheme of amalgamation was prepared and circulated in draft form. In anticipation of the sanction of the scheme an order to arrange for the payment of compensation, if any, options were invited from the employees of the U..I.B. on a provisional basis and the steps were taken from July 19, 1989. By a Notice of July 31, 1989 the U.I.B. intimated to its employees that after the merger with Allahabad Bank posting and deployment of Officers and Award Staffs will be made by Allahabad Bank depending upon the requirements and exigencies of administration. On October 16, 1989 U.I.B., on instructions from Allahabad Bank notified the posting of some clerical staff including Special Assistants as per the list enclosed with the letter and issued letters to the employers concerned so that the employees are relieved of their current posting at the close of working hours of the date on which the scheme of amalgamation comes into force to ensure that they report to the new place of posting after permitted joining time. On October 16, 1989, U.I.B. prepared a letter addressed to the petitioner dated October 20, 1989 as advised by the Allahabad Bank to report for duty at the Ukhra Branch in Burdwan. But the letter was not served upon the petitioner at that stage. Mr. Gupta submitted that the scheme of amalgamation was notified on October 30, 1989 and the Central Government by a Notification of the same date i.e. October 30, 1989 specified October 31, 1989 as the prescribed date. One of his main contentions was that there is no dissolution of the U.I.B., but its entire assets and liabilities including employees were taken by Allahabad Bank and the legal entity of the U.I.B was not extinguished, but kept alive for certain accounting purposes. According to the submission of the learned Counsel all preparatory steps can be taken in anticipation of the statutory action. It may not have statutory force when actually prepared but at the time when the service was effected the statutory instrument had already come into force. He further pointed out that it is well known proposition of law that an order is not effective until it is communicated and communication is a vital part of an effective order and the order became effective only on October 31, 1989 when full authority was given including liability. The service was effected by or on behalf of Allahabad Bank on October 31, 1989 when the entire banking undertaking of the United Industrial Bank Ltd., had vested in Allahabad Bank. He further pin-pointed that the form of letterhead and the date in the letter are not at all of any material value or matter of substance at all. About the terms and conditions with regard to the Memorandum of Settlement applicable to the employees of the Allahabad Bank dated April 22, 1989 it was contended that there is enough difference between Clauses (10) and (11) of this scheme and Clause (11) is very material so far as the petitioner is concerned.
8. Mr. Gupta summarised his argument by submitting that there is difference between posting in Calcutta and the conditions of service which is transferable; the option relating to posting was exclusively meant for first posting only and the option was fully adhered to by the erstwhile U.I.B. He, of course, admitted that some decisions were taken by Allahabad Bank before amalgamation relating to the employees which were not statutory decisions, but the transfer order though made earlier was not effective till the date of amalgamation, but when the amalgamation actually took place the order became effective and valid. He further added that no transfer order is effective until communication is made and after such communication the order becomes effective in law. The learned Counsel cited certain decisions: (1). R. Chitralekha v. State of Mysore and Ors. reported in : [1964]6SCR368 ; (2). Bachhittar Singh v. State of Punjab reported in : AIR1963SC395 ; and (3) an unreported decision being Civil Writ Petition No. 5563 of 1989, Ashok Arora v. Union of India and Ors. in the High Court of Punjab and Haryana.
9. I have scrutinised the facts and considered the submissions made by the learned Counsel of both sides. By Circular Memorandum No. 807 dated October 14, 1980 the Head Office of the United Industrial Bank Ltd. displayed notice in all its Branches, the relevant portion of which is quoted below: -
'It has been decided to appoint some Special Assistants from amongst the existing members of the Central Staff of the Bank. 25 % of the vacancies will be filled up for the posts in Calcutta Metropolitan Area and the remaining 75% will be for places outside Calcutta. Number of vacancies will be as notified earlier.'
The petitioner on November 5, 1980 made an application to the Personnel Manager of the U.I.B. through the Chief Accountant for the post of Special Assistant with reference to the Circular Memorandum No. 807 for the post of Special Assistant making the option for his area as 'Calcutta Metropolitan Area' and further made it clear that he was not in a position to serve the U.I.B. by staying outside Calcutta as he is the only son of his old ailing parents and has to look after the family. After the petitioner's promotion test and interview, the Management offered him the post of Special Assistant in the clerical cadre with posting at Calcutta Main Branch of the United Industrial Bank Ltd., with effect from April 10, 1982 by virtue of the letter of offer dated April 7, 1982 issued by the Deputy General Manager (P.& A.). Of course, the said letter of offer contains six conditions including condition No. 4 which clearly indicates that the 'service will be transferable to any office of the Bank, subject to the Rules and Regulations laid down in the Awards and Settlements'. The U.I.B. was put under moratorium by the Central Government from the close of business on June 10, 1989. On July 24, 1989 Allahabad Bank's Deputy General Manager (P.A.) through the United Industrial Bank Ltd. issued a registered letter to the petitioner stating categorically as follows: -
'The Reserve Bank has, in terms of Section 45 of the Banking Regulation Act, prepared a draft scheme of amalgamation of the United Industrial Bank Ltd., Calcutta (transferor Bank) with the Allahabad Bank (transferee Bank). In terms of the proposed scheme, the employees of the United Industrial Bank Ltd. (transferor Bank) shall continue to be in service and be deemed to have been appointed by the Allahabad Bank (transferee Bank) on the same remuneration and conditions of service as were applicable to them immediately before the close of business on June 10, 1989.'
Accordingly the petitioner was asked to let know his intention to become or not to become an employee of Allahabad Bank when the scheme comes into force through the enclosures with the said letter.
10. On October 20, 1989 the Assistant General Manager (P&A;) of the United Industrial Bank Ltd., Central Office, on the letterhead of the UIB addressed the impugned letter to the petitioner the relevant portion of which is quoted hereunder:-
'You have given intimation of your intention of becoming an employee of Allahabad Bank after the scheme of Amalgamation of the United Industrial Bank Ltd. with Allahabad Bank came into force.
As advised by the Allahabad Bank, we hereby inform you that you are required to report for duty at Ukhra Branch, Allahabad Bank, situated at Balaram Dey Market Building, Madhaiganj Road, Bahni, P.O. Ukhra, Dist. Burdwan- 713363.
You will stand relieved from your present place of posting at the close of working hours on the date on which the Scheme of Amalgamation of United Industrial Bank Ltd. with Allahabad Bank comes into force to enable you to report to the Manager, Ukhra Branch, Allahabad Bank, at the above address after availing joining time, if any, in terms of industry-wise Bi-partite Settlement'.
This letter was handed over to the petitioner at the close of the office hour on October 31, 1989 when the amalgamation had already come into effect. Similar transfer orders were also served to over 100 other employees on October 31, 1989 as appears from one of the letters dated October 31, 1989 of the Assistant Secretary of the A.I.B.E.A. and the Circular dated November 2, 1989 issued by the Allahabad Bank Workers Union (W.B.) which I shall discuss afterwards.
11. In this connection reference may be made to the Memorandum of Settlement between the Management of Allahabad Bank and the Representatives of All India Allahabad Bank Employees' Co-ordination Committee, being Annexure 'F' to the writ petition, Clause 8(b) of which relates to 'Augmentation of Special Assistant' and specifically states that 'the existing number of posts of the Special Assistants in the branches shall not be disturbed' and further contains that if in any branch the number of Special Assistants is more than the norms laid down in the Settlement, that would be phased out gradually as and when the vacancies caused due to retirement/ death/ promotion etc. in that branch. Clause 8(f) is of vital importance and relates to 'Option for Posting' and says that 'Option for the place of posting according to the vacancies will be invited from the list of candidates found successful in the interview'. Such option is to be exercised by the concerned candidates within three days from the date of receipt of the offer for option for posting. The minutes of the meeting held between the representatives of Allahabad Bank and the representatives of the All India Allahabad Bank Employees' Co-ordination Committee held on September 22 and 23, 1989 at the Head Office in Calcutta discussed the issue. The minutes of Issue No. 2 regarding Award Staff of the United Industrial Bank Ltd. read as follows:-
'General discussion on this matter was held between the parties. The issue of service conditions of Award Staff of United Industrial Bank will be negotiated after amalgamation.'
This means that the conditions of service were to be negotiated after amalgamation, if at all, and axe would not fall upon the erstwhile U.I.B. employees on the very day of amalgamation.
12. On October 31, 1989 the Assistant Secretary of the All India Bank Employees' Association wrote to Mr. R.L. Wadhwa, C.M.D., Allahabad Bank, protesting against the transfer of a large number of employees of the erstwhile United Industrial Bank Ltd. violating the commitments of Allahabad Bank to the All India Co-ordination Committee and also with the All India Allahabad Bank Employees' Coordination Committee. The letter strongly protested against the transfers as highly provocative and also warned Allahabad Bank authorities that such pre- planned and unilateral action on the very first day of the amalgamation is bound to generate bad feeling. The Assistant Secretary requested the authorities to keep in abeyance the transfer orders and to settle the matter through mutual discussion with the All India Allahabad Bank Employees' Co-ordination Committee as per the promise of Mr. Wadhwa with the General Secretary of A.I.B.E.A. on October 27, 1989. From a Circular dated November 2, 1989 issued by the Allahabad Bank Workers Union (W.B.) it appears that there was widespread dissatisfaction against the orders of transfer of Allahabad Bank contrary to the understanding and assurances given by the Management to the various Unions of the Bank. The said Union accused Allahabad Bank of violating so many settlements and understanding and also acting illegally. They very much questioned the issuance of the transfer orders of October 31, 1989 by the erstwhile U.I.B. on which date the said U.I.B. ceased to exist and questioned the legality of the transfer orders.
13. On July 19, 1989 the Deputy Chief Officer of the Reserve Bank of India, Head Office, Bombay, wrote a confidential letter to the Chairman of Allahabad Bank, Head Office, Calcutta, intimating that in terms of Section 45(5)(j) of the Banking Regulation Act, 1949 to issue to all employees of the United Industrial Bank Ltd., : Calcutta, 'through the bank', letters in the attached forms being Enclosures 'A' and 'B' within a certain period and to obtain the replies in this regard. The Enclosure 'A' indicates that the Reserve Bank in terms of Section 45 of the : Act has prepared a draft scheme of amalgamation and in terms of the proposed scheme the employees of the U.I.B. shall continue to be in service and be deemed to have been appointed by the Allahabad Bank on the same remunerations and conditions of service as were applicable to them immediately before, and also made provision for those who had no intention of becoming an employee of the Allahabad Bank. This particular Enclosure 'A' goes a long way to support the contention of the petitioner. The Enclosure 'B' is a proforma of the answer to Enclosure 'A'. Thereafter on July 22, 1989 the Deputy General Manager (P.A.) of Allahabad Bank wrote to the General Manager of the United Industrial Bank Ltd, forwarding the aforesaid forms as per paragraph 10 of the draft scheme. The scheme for the amalgamation of the United Industrial Bank Ltd., Calcutta, with Allahabad Bank was issued by the Ministry of Finance, Government of India, Department of Economic Affairs, Banking Division, as Notification dated October 30, 1989 under Section 45(7) of the Banking Regulation Act, 1949 and by another Notification of the same date, i.e. October 30, 1989, the Central Government specified October 31, 1989, as the prescribed date in relation to the scheme for the amalgamation of the United Industrial Bank Ltd., Calcutta, with Allahabad Bank. The relevant portion of Clause 10 of the scheme is worth quoting as under:-
'All the employees of the transferor bank shall continue in service and be deemed to have been appointed by the transferee bank at the same remuneration and on the same terms and conditions of service as were applicable to such employees immediately before the close of business on June 19, 1989.'
Clause II of the Scheme also requires to be quoted here as under:-
'The transferee bank shall, on the expiry of a period not longer than three years from the date on which the scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of corresponding rank or status of the transferee bank subject to the qualification and experience of the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank.
Provided that if any doubt or difference arises as to whether the qualifications or experiences of any of the said employees are the same as or equivalent to the qualifications and experiences of the other employees of corresponding rank or status of the transferee bank or as to the procedure or principles to be adopted for the settlement of the pay of the employees in the scales of pay or (of) the transferee bank, the doubt or difference shall be referred to the Reserve Bank of India whose decision thereon shall be approved.'
The Clauses quoted hereinbefore are of importance in deciding the issue as it fixes a period of three years without overriding Clause 10.
14. Mr. Gupta has cited the case of Bachhittar Singh v. State of Punjab and Ors. (supra), to bring home the point that an order is not effective until it is communicated and communication is a vital part of the making of an effective order. The Supreme Court in the aforesaid case stated that the communication of order to person concerned is essence of order. Their Lordships stated that 'It is of essence that the order has to be communicated to person who would be affected by that order before the State and the person can be bound by that order. If, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over * again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character'. In this connection the Supreme Court relied on : [1961]2SCR371 State of Punjab v. Sodhi Sukhdev Singh. The learned Counsel, Mr. Gupta, emphasised that the order of transfer became effective only on service and that was done on October 31, 1989 when there was full authority to Allahabad Bank on amalgamation. He further submitted that the form of letter-head and date put in the letter are of no consequences in any event in matters of substance at all. I cannot reconcile myself with the submission of Mr. Gupta as the order of transfer was actually made out on October 20, 1989, may be on the instruction of Allahabad Bank, but it cannot be served upon the letterhead of the United Industrial Bank Ltd. to the petitioner as the said Bank was no more in existence and the officer who signed the order ; of transfer was also no more in authority to convey the transfer order to any employee on the advice of Allahabad Bank. The case of R. Chitralekha v. State of Mysore and others (supra), relates to Article 166 of the Constitution ; of India which, inter alia, says that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and order and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules, etc. Per majority judgment the Supreme Court held that it was settled law that the provisions of Article 166 were only directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government or Governor. But Mudholkar, J. in a dissenting judgment disagreed with the majority view. This case, too, in my opinion in no way helps the Allahabad Bank. Here, though the action was taken by an authority of the U.I.B. under moratorium in the name of Allahabad Bank but it was communicated and served upon the employee by the said authority who no longer was an authority of the erstwhile Bank which ceased to exist just immediately after clock struck mid-night of October 30-31, 1989 and this vital aspect cannot be overlooked. The facts in the unreported decision in the case of Ashok Arora v. Union of India and Ors. in the High Court of Punjab and Haryana (supra), are totally on different footing and has nothing to do with the order of transfer, and as such, this case is not necessary to deal with.
15. Now it is crystal clear from the discussion made hereinbefore that by a Notification dated June 10, 1989, the Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India, made an order of moratorium in respect of the United Industrial Bank Ltd., Calcutta, from the close of business on the June 10, 1989. On July 19, 1989 the Reserve Bank of India wrote to Allahabad Bank's Head Office in Calcutta that by virtue of Section 45(5)(j) of the Banking Regulation Act, 1949 it would be necessary for the transferor bank to pay to its employees who may, by notice in writing given to Allahabad Bank at any time before the expiry of one month following the date on which the scheme is sanctioned by the Central Government, intimating the intention of not becoming the employees of Allahabad Bank, compensation, if any, to which they are entitled under the Industrial Disputes Act, 1947 and such pension, gratuity, provident fund and other benefits ordinarily admissable to them under rules on authorisation of the transferor bank immediately before the date of the order of the moratorium. The letter also intimated that a provision on the above line has accordingly been made in paragraph 10 of the draft scheme of amalgamation which has already been quoted hereinabefore. Two forms being Enclosures 'A' and 'B' were supplied along with the communication for replies within 10 days or so, and the replies of the employees would be provisional. The reply was treated as provisional because though the scheme for the amalgamation of the U.I.B. with Allahabad Bank was already drafted but it came into effect only on October 31, 1989. From Enclosure 'A' it is absolutely clear that the Reserve Bank under Section 45 of the Act prepared a draft scheme of amalgamation and in terms of the said scheme the employees of the United Industrial Bank Ltd., Calcutta, shall continue to be in service and be deemed to have been appointed by Allahabad Bank on the same remuneration and conditions of service as were applicable to them immediately before the amalgamation. The Enclosure 'B' was the proforma of a draft of acceptance or refusal by an employee. The Allahabad Bank on the basis of the direction of the Reserve Bank of India's letter dated July 19, 1989 wrote to the petitioner on July 24, 1989 through the U.I.B. reiterating that in terms of the proposed scheme, the employees shall continue to be in service and be deemed to have been appointed by Allahabad Bank on the same remuneration and conditions of service as were applicable to them immediately before the close of business on June 10, 1989. In fact, Allahabad Bank had to accept the direction given by the Reserve Bank of India and at this stage Allahabad Bank cannot avoid the directive as contained in Clause 10 of the Scheme of amalgamation. The letter of the United Industrial Bank Ltd. of December 20, 1989 addressed to the petitioner and duly received by him on the date of amalgamation on October 31, 1989 is of no legal value in the light of the aforesaid documents. Once the direction of the Reserve Bank of India was given to Allahabad Bank, the Allahabad Bank has no right or jurisdiction to flout that direction, whether it is written on the letter-head of the United Industrial Bank Ltd. or on the letter-head of Allahabad Bank. From the correspondence of various employees' unions of the banks it is also nakedly clear that Allahabad Bank acted in a highly provocative manner totally disregarding the norms and flouting the assurances given on the conditions of service of the employees as per direction of the Reserve Bank. Let me be more specific to state that Allahabad Bank has no legal right or authority to override the instruction of the Reserve Bank of India as contained in their communication of July 19, 1989 to Allahabad Bank and cannot in any way interfere with the terms and conditions of service including transfer of the employees of the erstwhile United Industrial Bank Ltd. Calcutta, as was prevalent on the day of moratorium on June 10, 1989 and the action taken for the transfer of employees of the erstwhile United Industrial Bank Ltd., Calcutta, by the Allahabad Bank, contrary to the direction of the Reserve Bank of India and Clause 10 of the Scheme of Amalgamation is bad, illegal, and without jurisdiction. Such act is opposed to public policy and is against the principles of natural justice.
16. Let me turn to Maxwell's Interpretation of Statutes on Presumption against intending Injustice or Absurdity (Edition 1962, pp. 193 &197). In case of Arrow Shipping Co. v. Tyre Commissioners reported in (1894) AC 516 Lord Chancellor Herschell observed that 'A sense of possible injustice of an interpretation ought not to induce to do violence to well-settled rules of constructions, but it may properly lead to the selection of one rather than the other of two reasonable interpretations'. Similarly in several decisions it was made clear that whenever the language of the legislature admits of two constructions and, if constructed in one way, would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words Railton v. Wood, (1890) 15 AC 363; Courts & Co. v. I.R.C., (1953) AC 267; Fry v. I.R.C. (1959) Ch 86 CA. The same argument applies where the consequence of adopting one of the two interpretations would lead to an absurdity and reference may be made to the decisions of Yates v. R (1885) 14 QBD 648.
17. In the above light some elucidation is necessary in the case of the petitioner who filed his application for the post of Special Assistant to the U.I.B. on November 5, 1989 making his categorical option relating to the area of operation as Calcutta or Metropolitan Area. He also made it abundantly clear that he would not be in a position to serve the U.I.B. by staying outside Calcutta because of his domestic difficulties, While offering the post of Special Assistant in a communication dated April 7, 1982 but condition No. 5 was in keeping with his option in the application dated November 5, 1980 and there is no logic on the part of Allahabad Bank to substantiate the transfer by putting up the plea that the option was meant for the first posting and not for subsequent postings. The option was first and the last so far as the posting of the petitioner was concerned and the condition No. 4 is simply redundant as the petitioner categorically stated his option of remaining in Calcutta and Metropolitan Area throughout his service and nowhere else. The U.I.B. did not object to this condition and accepted it without any objection or hesitation or clarification and complied with the option of the petitioner since 1982 and this compliance cannot be waived now and said to be for the purpose of the first posting only. This kind of arguments may well be aversed by an individual litigant but a Nationalised Bank of the reputation of Allahabad Bank cannot take such a plea in the Court of law and play with the career of one of its employees so abashlessly. I agree with the submissions of Mr. Banerji.
18. In that view of the matter the order of transfer issued by the United Industrial Bank Ltd., on October 20, 1989, even though made at the instance of Allahabad Bank, is contrary to the instructions of the Reserve Bank of India and the scheme of amalgamation as referred to hereinbefore and also opposed to the very option cast by the petitioner as condition precedent of his service, and, as such, is bad, illegal and without jurisdiction and is hereby quashed. I further direct that the option given at the time of the appointment of the petitioner on November 5, 1980 and upon which basis he was taken as a Special Assistant with effect from April 10, 1982 by the erstwhile United Industrial Bank Ltd. stands good for all time to come so far as this particular petitioner is concerned and cannot be changed by Allahabad Bank.
19. The writ petition is accordingly allowed without costs. All parties to act on the Xerox signed copy of the operative portion of the order.
20. Mr. Basu Mallick appearing for the Respondents prays for stay of the judgment. The prayer is refused.