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| HC dismisses JK Bank ex-chairman's plea challenging Chibber's appointment | | | Early Times Report
JAMMU, Nov 11: The Jammu and Kashmir High Court on Wednesday dismissed the plea of ex-chairman of Jammu and Kashmir Bank challenging the appointment of present chairman
Justice Ali Mohammad Magrey dismissed the petition of Parvez Ahmed Nengroo challenging the communication no.FD/Bkg/21/2019 dated 08.06.2019 addressed by the Additional Secretary to the Government, Finance Department of the erstwhile State of Jammu & Kashmir, to the Company Secretary, J&K Bank Limited, conveying the decisions of the Government taken by it in exercise of the powers under Article 69(iii) of Articles of Association of the Bank, that the petitioner shall cease to be Director on the Board of Directors of the Bank and, consequently, be no longer the Chairman-cum-Managing Director of the Board of Directors of the Bank (the Board), and further about nominating R K Chibber, respondent no.4 herein, as Director on the Board and his appointment as the interim Chairman-cum-Managing Director of the Board/Bank.
Justice Magrey observed that the stand so taken on behalf of the petitioner clinches the issue, in that it is, thus, admitted by the petitioner that with his nomination as Director on the Board of the Bank and his appointment as Chairman-cum-Chief Executive Officer, he is deemed to have retired from the said date, of course, according to him, for purpose of computing qualifying service for the purpose of pension. So, if the petitioner is deemed to have retired as an employee of the Bank with effect from 06.10.2016, the date he was nominated as the Government Director on the Board and appointed as Chairman of the Bank, the question is what would his relationship with the Bank be during the period he would remain or remained as nominated Director on the Board of the Bank and its Chairman-cum-Chief Executive Officer, especially so when, admittedly, this period is to be excluded while computing the qualifying service?
Justice Magrey further observed that the word 'retirement' means termination of one's employment or career; retirement may be voluntary or involuntary. Obviously, in the instant case, the petitioner had the choice to decline the nomination as Director on the Board and to be the Chairman and CEO of the Bank. But he accepted the position and thereby, by operation of the relevant Regulation(s), of his own volition agreed to be deemed to have retired from the employment of the Bank. He, thus, having seceded his relationship with the Bank as its employee, the period during which he remained as nominated Director on the Board and Chairman and CEO of the Bank would not constitute employment to be governed by the service conditions of the Bank. If that be so, as it actually is, the only relationship of the petitioner with the Bank while being a Government Director on the Board and Chairman/CEO of the Bank cannot but be contractual in nature.
The High Court further observed that despite the above clearly admitted position, the claim of the petitioner is that, nay, so far as he is concerned, his employment with the Bank continued unabated and uninterrupted. It is pleaded that the concept of deemed retirement has no relation with one's service and is even otherwise not applicable to Chairman/CEO and whole-time Directors who are serving employees of the Bank and had subsequent to their service in the Bank at a career level post been elevated to a Board Level Post in the same Bank. In other words, it is submitted that the definition of the expression "deemed to have retired" given in the Pension Regulations is not attracted in the case of Chairman/CEO and whole time Directors of the Bank. To buttress this submission, reliance is placed on one of the bulleted paragraphs of Clause 4 of the Compensation Policy of the Bank which specifies the components of compensation as could be provided by the Bank to its employees. Reference in this connection is also made to the resolution of the Board dated 27.12.2018 and approval dated 15.05.2019 thereto accorded by the RBI. In this regard, one thing has to be borne in mind that neither the position of Director, nor of the Chairman/CEO or the Managing Director are promotional posts in the service of the Bank. So, nomination of the petitioner as Government Director on the Board or his appointment as Chairman/CEO of the Board of the Bank is not an elevation in the sense of promotion as construed in ordinary service parlance. Now, before coming to Clause 4 of the Compensation Policy, the resolution of the Board dated 27.12.2018 and approval thereto dated 15.05.2019 accorded by the RBI, it may be mentioned here that pursuant to Articles 71 and 72 of the Articles of Association of the Bank, particularly clause (e) of Article 72, the Board of Directors has framed the service conditions, entitled the Pension Regulations. Rule/Regulation 2 thereof defines various terminologies used therein. It says 'in these regulations, unless the context otherwise requires'. Sub-rule (k) of these Regulations defines the expression 'Date of Retirement'.
Justice Magrey further observed that the nomination of the petitioner as Director on the Board and his appointment as Chairman-cum-Chief Executive Officer of the Bank was contractual in nature and not governed by any Statute or the service conditions ordinarily applicable to the employees of the Bank. In Chanda Deepak Kochhar v ICICI Bank Limited (supra), the Division Bench of the Bombay High Court has held that contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. It is also to be borne in mind that Mandamus is limited to enforcement of public duty. In that view of the matter, this petition, insofar as it challenges communication no.FD/Bkg/21/2019 dated 08.06.2019 addressed by the Additional Secretary to the Government, Finance Department, of the erstwhile State of Jammu & Kashmir, to the Company Secretary, J&K Bank Limited, conveying the decisions of the Government taken by it in exercise of the powers under Article 69(iii) of Articles of Association of the Bank, that the petitioner shall cease to be Director on the Board of Directors of the Bank and, consequently, be no longer the Chairman of the Board of Directors of the Bank, is held to be not maintainable. The remedy lies in the civil court.
Justice Ali Mohammad Magrey observed that the case of the petitioner before this Court is that even when he was nominated as Government Director on the Board and was appointed as Chairman-cum-Chief Executive Officer of the Bank, he continued to be in service of the Bank unabated and uninterrupted and, therefore, continued to be governed by the service conditions of the Bank, and that since the Bank, being an instrumentality of the State, is amenable to the writ jurisdiction of this Court, this petition challenging communication dated 09.07.2019, which conveyed to him that he is deemed to have retired from the service of the Bank with effect from 06.10.2016, is maintainable. In that context, this Court has recorded its finding that in terms of Rule/Regulation 2(k) and 2(l) of the Pension Regulations, the petitioner is deemed to have retired from the Service of the Bank with effect from 06.10.2016, therefore, his tenure as being the Chairman & CEO of the Bank is not governed by the Service Rules of the Bank. Consequently, any dispute sought to be raised by him in relation thereto, including challenge to communication dated 09.07.2019, cannot be gone into by this Court in its writ jurisdiction. In that view, this writ petition to that extent as well is not maintainable.
The High Court further observed that since all the other reliefs prayed for by the petitioner in this petition are relatable to the two prayers for issue of the writs of Certiorari to quash the two communications dated 08.06.2019 and 09.07.2019, this petition for these reliefs as well would not survive before this Court in its extra ordinary writ jurisdiction.
Justice Magrey observed that so far as the prayer of the petitioner for a direction to the respondents for release of all perquisites and benefits due and payable to him in law is concerned, it is seen that Chapter II of the Pension Regulations contain and provide for the application and eligibility of the said Regulations. It is admitted that he was in the service of the Bank till 06.10.2016, the date he was deemed to have retired from the service of the Bank. This Court could make a direction that in the event he is eligible to pensionary benefits under the Pension Regulations in question in lieu of his service till 06.10.2016 and he applies in accordance therewith for grant of such pensionary benefits, the Bank authorities shall consider the case of the petitioner in accordance with the applicable rules and pass appropriate orders, but, since this Court is dealing with the petition in limine and leaving the petitioner free to approach the civil court for seeking his main reliefs, such a direction may amount to treading into the merits of the case and may prejudice the petitioner in the civil court in seeking his all the reliefs. Therefore, by way of abundant caution no direction is made in that regard.
With these observation the High Court ordered that this petition is dismissed in limine along with all connected CMs as not maintainable before this Court, leaving the petitioner free to approach the civil court for seeking enforcement of his contractual relationship and/or redressal of his contractual dispute(s) with the Bank. This also disposes of the connected CMs.
—JNF |
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