Sanjay Kumar Tiwari & Others vs Chief General Manager State Bank Of India & Others

Court No. - 34

Case :- WRIT - C No. - 19259 of 2015

Petitioner :- Sanjay Kumar Tiwari & 9 Others

Respondent :- Chief General Manager State Bank Of India & 3 Others Counsel for Petitioner :- Santosh Kumar Singh,Nagendra Pratap Singh Counsel for Respondent :- C.S.C.,Aditya Kumar Singh,Satish Chaturvedi

Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.

1. This writ petition has been filed by 10 petitioners who were engaged as corporate business correspondent in i-25 Rural Mobile Commercial Services for the purpose of facilitating or passing of account in rural areas with zero balance. The bank subsequently merged with Purvanchal Bank and petitioners have been disengaged where-against they made a representation which has been rejected by order dated 18.2.2015, which has been challenged in the present writ petition.

2. Contention of learned counsel for petitioners is that as a result of merger of contracts etc. they stood transferred by Transferor to Regional Rural Bank and therefore, Transferee bank was also bound to honour the contract of engagement of petitioners but it has wrongly excluded.

3. Admittedly engagement of petitioners is contractual. Hence, a writ petition for specific performance of service contract is not maintainable. The relief of reinstatement can be granted only in restricted matters i.e. in cases where the contract of service is not governed by statutory provisions,. It is well-settled that contract of service cannot be sought to be enforced by seeking reinstatement or continuance in employment since such a relief is barred under the provisions of Specific Relief Act, 1963.

4. In Executive Committee of U.P. State Warehousing Corporation, Lucknow Vs. C.K. Tyagi AIR 1970 SC 1244 considering the question as to when such a relief can be granted, Court observed:

"Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognised. The Courts are also investigated with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, "

5. Again in para 25 of the judgment, Court held:

"The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognized exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311. (2) Reinstatement of a dismissed worker under Industrial law by Labour or Industrial Tribunals.

(3). A statutory body when it has acted in breach of a mandatory obligation, imposed by statute".

6. The above view has been reiterated in Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others AIR 1976 SC 888 (paras 9, 10, 13 and 17); Smt. J. Tiwari Vs. Smt. Jawala Devi Vidya Mandir and others, AIR 1981 SC 122 (paras 4 and 5); and Life Insurance Corporation of India Vs. Escorts Ltd., and others AIR 1986 SC 1370 (paras 101, 102). Similar view has been taken by this Court also in A.K. Home Chaudhary Vs. National Textile Corporation U.P. Ltd., Kanpur 1984 UPLBEC 81; B.M. Varma Vs. State of U.P. and others 2004 (4) AWC 2866; and Vivek Kumar Mishra and others Vs. State of U.P. and others, 2008(4) ESC 2811.

7. Learned counsel for Bank also drew our attention to a Division Bench Judgment of this Court, dated 2.11.2015 passed in writ petition no. 59939 of 2015, Digvijay Nath Tiwari and 49 Others Vs. Chief General Manager State Bank of India and 3 Others, in which also similar issue was raised but this Court declined to interfere and passed following order:

"Heard learned counsel for the parties.

Petitioners before this Court claims that they were appointed as Business Correspondent in the Ballia Etawah Gramin Bank. For the purpose they were also provided a hand held machine by the Bank.

It is stated that the work of Business Correspondent was illegally stopped by the Bank and that the petitioners were not paid their honorarium as was due. The petitioners, therefore, approached the Hon'ble High Court by means of Civil Misc. Writ Petition No. 4249 of 2015. The writ petition was disposed of vide order dated 05.02.2015 requiring the petitioners to file their representation before the Bank authorities.

The representation so made by the petitioners has been rejected under the order impugned dated 07.04.015 passed by the Regional Manager of the Bank. It is against this order that the present writ petition has been filed.

From the order impugned we find that it is the categorical stand of the Bank that it had never engaged the petitioner nor it was the employer of the petitioners at any point of time. The petitioners were engaged by the Franchisee, therefore, the petitioners can have no grievance against the Bank.

The findings of fact so recorded by the Regional Manager are sought to be challenged by means of the present writ petition with reference to various correspondence on record.

We have gone through the records of the present writ petition.

We hardly find any good ground to entertain the present writ petition.

The engagement of the petitioners as Business Correspondent by the Bank is in serious dispute. The petitioners, if so advised, may file a civil suit.

Writ petition is dismissed. "

8. In view of above, we do not find any merit in this writ petition and is accordingly dismissed with liberty to petitioner to avail such remedy in common law as available.

Order Date :- 6.11.2017 Sanjeev