Prabir Kumar Sarkhel vs State Bank Of India & Ors

Amrita Sinha, J

Affidavit-of-service filed in Court today be taken on record.

The petitioner is a retired employee of the State Bank of India. He has received all his terminal benefits and is presently receiving his pension.

After his retirement, the petitioner was appointed as Facilitator for ATM Management in the Bank on contract basis by a letter of appointment dated 25th January, 2019. The terms and conditions of the appointment letter mentions that the engagement will be for an initial period of six months with effect from 1st February, 2019 and the same will be reviewed after six months. On successful review, the services would be extended for a maximum total period of three years or till attaining 65 years of age, whichever is earlier. The contract period was not to be reckoned as service or re-employment for the purpose of superannuation benefits/PF/Bonus etc. The Facilitator was to execute a stamped undertaking before taking up the assignment. The Bank had the discretion to cancel or terminate the contract of engagement at any time without assigning any reason whatsoever with an option of 30 days notice period or payment/surrender of remuneration in lieu thereof. The engagement was not considered as a case of re-employment in the Bank. It was an engagement as a service provider only and it did not create any employer-employee relationship. The Facilitator was to receive the fixed monthly remuneration of Rs.30,000/- (rupees thirty thousand) per month along with conveyance charges of Rs.5,000/- (rupees five thousand) and mobile reimbursement Rs.1,000/- (rupees one thousand) per month (on declaration basis). It was only upon acceptance of the terms and conditions as mentioned in the letter of appointment, the appointment was to take into effect.

The petitioner filed the same undertaking wherein he agreed that the Bank had the discretion to cancel or terminate the contract of engagement at any time without assigning any reason whatsoever. He also agreed and accepted that the engagement did not create any employer-employee relationship and the same was not re-employment in the Bank.

He further undertook that he was bound by the terms and conditions of fidelity and secrecy which was executed by him while joining and working in the Bank and the declaration shall be binding on him till such time his assignment as an ATM Facilitator subsists.

The letter of appointment was issued by the Deputy General Manager (CM & CS). The petitioner was to report to the Assistant General Manager (ATM-OPS).

The Assistant General Manager (ATM-OPS) by a letter dated 30th October, 2019 terminated the service of the petitioner on review of his performance with effect from 1st December, 2019. It was mentioned that his performance being reviewed after six months by the appropriate authority and not found to be satisfactory was being terminated with effect from 1st December, 2019 and the letter to be treated as one month's notice for termination of service.

The petitioner submits that the principle of audi alteram partem has not been followed prior to issuance of the letter of termination. No opportunity of hearing was given to the petitioner prior to passing the order. The order of termination was passed by an authority lower in rank than the Appointing Authority. The service of the petitioner was not reviewed immediately upon completion of six months of service. It was reviewed after a period of nearly nine months.

The petitioner relies upon an unreported order dated 13th December, 2019 passed by a Co-ordinate Bench of this Court sitting in the Circuit Bench at Jalpaiguri in W.P.A. 1054 of 2019 (Arup Kumar Sengupta -vs- State Bank of India & Ors.) wherein under similar circumstances the Court was pleased to stay the impugned order of termination for a period of eight weeks and directed the petitioner to serve a copy of the writ petition upon the respondents. The Court was further pleased to give liberty to the respondents to file their affidavit in the matter.

The petitioner submits that he is similarly placed as that of Arup Kumar Sengupta (Supra) and similar relief may be extended in his case.

The learned advocate appearing for the State Bank of India submits that the appointment of the petitioner was contractual. The engagement was initially for a period of six months. The service of the petitioner was to be reviewed after six months. The Bank authority reviewed the performance of the petitioner after six months and the competent authority was of the view that the performance of the petitioner was not satisfactory and accordingly, his contract has been terminated.

The learned advocate further submits that one month's notice period as was required to be given to the petitioner was duly given to him. The petitioner gave an undertaking to the bank prior to issuance of the letter of appointment and he was bound by the terms and conditions of the undertaking. Appointment was given to the petitioner on the basis of the undertaking given by him.

It has been submitted that the petitioner does not have any legal right to the post in question. The appointment was not re-employment and there was no employer-employee relationship existing between the parties.

The respondents pray for dismissal of the writ petition.

After hearing the submission made on behalf of both the parties, it appears that the petitioner accepted the terms and conditions as mentioned in his letter of appointment dated 25th January, 2019.

Apart from accepting the terms and conditions, the petitioner filed a further undertaking wherein he categorically declared that the Bank had the discretion to cancel or terminate the contract of engagement at any time without assigning any reason. He also accepted that the employer-employee relationship did not exist between the parties and it was not a case of re-employment in the Bank.

It appears that the service of the petitioner was reviewed, may not be immediately after expiry of six months, but after nearly nine months. The Bank had the discretion to review the performance of the petitioner at any time after six months. There was no outer limit mentioned in the letter of appointment within which the review had to be done.

Accordingly, the action of the Bank in reviewing the performance of the petitioner after nine months cannot be faulted. There is no allegation of non-payment of remuneration to the petitioner. The remuneration for the notice period has also been paid to him.

It appears that the petitioner is a pension holder and getting his pension. The petitioner was appointed for a particular purpose on contract basis. If the said purpose for which he was appointed was not fulfilled by him, the Bank rightly had the option to terminate his service. The Bank exercised the option upon reviewing his performance. The petitioner has not challenged the performance report prepared by the Bank. The Bank is not obliged to engage persons or continue with the employment of the persons who do not perform upto the satisfaction of the Bank.

The petitioner being a contractual employee does not have any legal right to the post in question. The engagement of the petitioner will be governed strictly by the terms and conditions of the letter of appointment and the contract entered into between the parties. The Bank exercised the option as per the contract and accordingly the same is not required to be interfered with by the court.

The order of the Co-ordinate Bench of this Court relied upon by the petitioner cannot come to his aid as the order was passed ex-parte without hearing the respondents and secondly, the petitioner in the said case [Arup Kumar Sengupta (supra)] approached the court immediately when the order of termination was issued against him and he was in the notice period of his service, whereas in the instant case, the contractual period of the petitioner was long over on 1st December, 2019. The petitioner approached the court after the expiry of the notice period when the termination was already given effect to.

Accordingly, the order relied upon by the petitioner cannot be made applicable in the facts and circumstances of this case.

There is no merit in the instant writ petition.

WP 24019 (W) of 2019 stands dismissed.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.