IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.10.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.15853 of 2009 and M.P.No.2 of 2009 P.Sudhakar .. Petitioner Vs. 1.The Chairman and Managing Director, No.66, Indian Bank (HO) Rajaji Salari, Chennai-1. 2.The Executive Director, No.66 Indian Bank (HO) Rajaji Salai, Chennai-1. 3.The Circle Head, Indian Bank Circle Office, T.K.M.Complex, 46-51, Katpadi Road, Vellore-4. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of certiorarified Mandamus to call for the records of the letter in reference in C.O.U/HRM/07-08 dated 23-5-2008 on the file of the third respondent, to quash the same and to consequently direct the respondents 1 and 2 to restore service of petitioner as Permanent driver cum Peon based on appointment order dated 16.5.2008 in Indian Bank, Circle Office, Vellore. For Petitioner : Mr.D.Baskar For Respondents : Mr.G.Venkataraman, SC for Aiyar and Dolia ORDER The writ petition is filed to quash the order of the third respondent dated 23-5-2008 in letter no.C.O.U/HRM/07-08 and to consequently direct the respondents 1 and 2 to restore the petitioner in service as Permanent driver cum Peon based on the appointment order https://hcservices.ecourts.gov.in/hcservices/ dated 16.5.2008 issued by Indian Bank, Circle Office, Vellore 2.The facts which remain undisputed herein are as follows: The petitioner had been serving as Personal driver to the executives of Indian Bank since 1995. While he was serving in the zonal office, Vellore during 2000, Zonal office was closed and due to de- layering of zonal offices in August 2000, his service was dispensed with and thereafter he was again absorbed in the service of Indian Bank from 1.4.2004. While so, the petitioner made a representation to the Assistant General Manager, HO-HRM Department, Indian Bank, Chennai for considering him to be included his name in the panel of Drivers to be absorbed on permanent basis and his case was duly considered and he was appointed as Driver cum Peon in the service of Indian Bank by order dated 16.5.2008 subject to certain terms and conditions. However, the same was followed by the order of the third respondent dated 23.5.2008 which is impugned herein, in and under which the appointment order issued to the petitioner was recalled on the ground that as he was in break of service from 27.7.2000 to 31.12.2003, he is not eligible for appointment on permanent basis. Aggrieved against the same, the petitioner has come forward with the present writ petition for the relief as stated supra. 3.According to the learned counsel for the petitioner, the petitioner having been appointed on regular basis cannot be terminated from service without any notice permitting him to give explanation or enquiry and the action of the third respondent in withdrawing his appointment order within one week from the date of his appointment is hence unfair, arbitrary and without jurisdiction and the same is contrary to the well laid procedure and in violation of the principles of natural justice. 4.Per contra, the learned senior counsel for the respondents bank would attempt to justify the impugned order by contending that the appointment of the petitioner was on the basis of Settlement under Section 2(p) read with 18(1) of the Industrial Disputes Act 1947 between the management of India Bank and the recognised federation of Indian Bank Employees' Unions in the post of Peon cum Driver, as per which, all the personal drivers engaged by the Bank's executives/senior officials for driving cars provided by the Bank are eligible to be considered for post of sub staff only on completion of minimum 5 years of uninterrupted service in the capacity of personal driver. As the petitioner was later-on found to be having break of service for three years between 27.7.2000 and 31.12.2003 and as he did not complete 5 years uninterrupted service as on the date of his appointment on 16.5.2008, he is not eligible to be considered for appointment to the post of Driver-cum-Peon on regular basis and his appointment order was hence, withdrawn. The learned senior counsel for the respondents has also in support of such contention, produced the copy of 18(1) https://hcservices.ecourts.gov.in/hcservices/ settlement. 5.I have considered the rival submissions made on both sides and perused the materials available on record. 6.The facts made available herein would reveal that the petitioner has been serving as personal driver for the executives of the bank for driving cars provided by the bank and he was appointed as Driver cum Peon on regular basis only by virtue of his such engagement as Personal driver for the executives of the bank. In that event, it is needless to say that his appointment was only on the strength of the settlement under section 18(1) as referred to above, as per which, the petitioner is eligible to be considered for appointment as Driver cum Peon only on completion of minimum 5 years of uninterrupted service in the capacity of personal driver. In this case, the petitioner has admittedly not completed 5 years of uninterrupted service as on the date of his appointment on 16.5.2008. Though the settlement referred to above has not been stated in the appointment order, the impugned order of letter of withdrawal of the appointment order was issued to the petitioner only on the ground that there was break of service between the period as mentioned above. 7.Be that as it may, the respondents must have been before withdrawing his appointment order given an opportunity to say about the break of service as referred to above. The learned counsel for the petitioner has strenuously argued that break of service from 27.7.2000 to 31.12.2003 is not due to any voluntary act on the part of the petitioner, but due to the closure of the zonal office on account of restructuring the same. As a matter of fact, the petitioner has explained so in his letter dated 31.3.2006 submitted to the bank seeking appointment on regular basis. It is also further represented by the learned counsel for the petitioner that other similarly placed person's like that of the petitioner particulars of whom are not available, have been considered for appointment on regular basis without insisting for 5 years of uninterrupted service. In my considered view, the petitioner is considering the arguments advanced on the side of the petitioner, entitled to get an opportunity of being personally heard before his appointment order being withdrawn for the reasons stated herein. Notwithstanding the contentions raised by the learned senior counsel for the respondents, the impugned order passed by the third respondent withdrawing the appointment order without an opportunity to the petitioner is held to be in violation of principles of natural justice and cannot be allowed to stand and hence, is set aside. 8.In the result, the impugned order of the third respondent dated 23.5.2008 is set aside. The respondents 1 and 2 are directed to reinstate the petitioner in service and pay all the attendant benefits forthwith, with liberty to proceed further in this regard after giving https://hcservices.ecourts.gov.in/hcservices/ opportunity to the petitioner for being personally heard. While doing so, the respondents are directed to consider the reasons for break of service and to consider his past service and appointment of similarly placed persons if any. Subject to the out come of the same, the respondents are directed to pay arrears of salary with all other benefits if any from the date of withdrawal, due to the petitioner within 2 weeks thereafter. 9.The writ petition is accordingly ordered. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk To 1.The Chairman and Managing Director, No.66, Indian Bank (HO) Rajaji Salari, Chennai-1. 2.The Executive Director, No.66 Indian Bank (HO) Rajaji Salai, Chennai-1. 3.The Circle Head, Indian Bank Circle Office, T.K.M.Complex, 46-51, Katpadi Road, Vellore-4. +1cc to Mr.D.Baskar, Advocate Sr 76619 MDR(CO) km/8.12. W.P.No.15853 of 2009 https://hcservices.ecourts.gov.in/hcservices/