9911796707
TMI Blog1996 (2) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... e envisages that employees existing as on November 20, 1987, in the transferor bank, viz., the Traders Bank, so taken over, shall become employees of the appellant bank. Admittedly, the respondent was not in service as on that date. Even no suit or proceedings was pending against the Traders Bank as on the date. As far as service conditions are concerned, in view of the specific provision in the scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by the transferor-bank and not of the appellant bank. Under these circumstances, the suits are clearly not maintainable. - CIVIL APPEAL NO. 4390 OF 1996 - - - Dated:- 19-2-1996 - K. RAMASWAMY AND G.B. PATTANAIK, JJ. K. Chitale, T.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and conditions of service as were applicable to such employees immediately before the close of business on November 20, 1987." Paragraph 8 of the notification dated May 12, 1988, issued under section 45(1), read with sub-section (2) of section 45 of the Act envisages, among other things, undertaking of the liabilities with respect to the pending suits, appeal or other legal proceedings of whatever nature by or against the transferor bank arising as on the prescribed date were allowed to continue on the appellant bank thus: "If on the prescribed date any suit, appeal or other legal proceedings of whatever nature by or against the transferor bank is pending, the same shall not abate, or be discontinued or be in any way prejudicially af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the scheme under sub-section (7). As seen, clause (10) of the scheme envisages that employees existing as on November 20, 1987, in the transferor bank, viz., the Traders Bank, so taken over, shall become employees of the appellant bank. Admittedly, the respondent was not in service as on that date. Even no suit or proceedings was pending against the Traders Bank as on the date. Under those circumstances, the question arises: whether the suit is maintainable? This court in Canara Bank v. M.S. Jasra, AIR 1992 SC 1100, in paragraph 9, has considered the effect of sub-sections (4) and (5) of section 45 of the Act and of the scheme framed there under which reads and held as under (at page 1105): "Sub-section (5) then specifies the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provide for continuance of services of all the employees of the banking company in the transferee bank, but where such a provision is made, it must contain a provision as required by the provisos in clause ( i ). This is clear from the use of the word 'may' in the opening words of sub section (5) and the word 'shall' in the proviso. In effect it means that where the scheme provides for continuance of the services of all the employees of the banking company in the transferee bank at the same remuneration and on the same terms and conditions of service which they were getting or, as the case may be, by which they were being governed immediately before the date of the order of moratorium, then the scheme must contain a provision that the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent that under the scheme, the assets and liabilities are to be taken over by the appellant bank and, therefore, the employment of the appellant, is one of the liabilities. Judicial review being one of the basic features of the Constitution, he cannot be prevented to avail of the judicial review against the appellant-bank. We find no force in the contention. As far as service conditions are concerned, in view of the specific provision in the scheme contained in paras 3 and 10 of the notification arrears of salary is a liability to be discharged by the transferor-bank and not of the appellant bank. Under these circumstances, the suits are clearly not maintainable. The appeal is accordingly allowed, the suit stands dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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