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2002 DIGILAW 290 (CAL)

BISWANATH HALDER v. UNITED BANK OF INDIA

2002-04-30

MAHEMMAD HABEEB SHAMS ANSARI

body2002
M. H. S. ANSARI, J. ( 1 ) THE relief prayed for by the petitioner in the instant writ application, a bank employee, is for a writ in the nature of directions upon the respondent-bank to refrain from taking action pursuant to its letter dated 25th May, 2001 being annexure 'p-4' and for a further direction upon the respondent-bank to continue the petitioner in service of the bank till petitioner attains the age of superannuation. ( 2 ) THE impugned order, annexure 'p-4', is one passed by the regional Manager dated 25th May, 2001 informing the petitioner that his application filed with respect to UBI Employee's Voluntary Retirement Scheme-2000 has been accepted by the competent authority. In paragraph 2 thereof, it was further, informed as under :you will be relieved from the services of the bank at the close of business on 31st May, 2001. ( 3 ) THE case of the petitioner is that though he had opted for voluntary retirement under the said scheme, subsequently he had withdrawn his aforesaid application before effective date, and, therefore, the impugned order cannot be given effect to and the petitioner should be granted the reliefs prayed for. ( 4 ) ON the other hand, the case of the respondent-bank as set out in affidavit-in-opposition is that the petitioner suppressed his letter dated 7th March, 2001 addressed to the General Manager being the competent authority under the scheme. By the said letter petitioner had withdrawn his letter of withdrawal of VRS and had informed that he wants to accept the VRS as usual. On the basis of the aforesaid letter dated 7th March, 2001, the case of the petitioner was considered along with similar cases by the appropriate authorities of the bank and it was decided to accept the application of the petitioner for voluntary retirement on 22nd May, 2001. Petitioner was accordingly informed of the said decision by the letter dated 25th May, 2001 being annexure 'p-4' (impugned order ). ( 5 ) AS in the view of this Court, the matter is concluded by the judgments of the Supreme Court, reference to which will be made shortly and which have also been referred to in the judgment of this Court in Alok Nath Banhyapadhyay v. Allahabad Bank and Ors. , 2001 (2) CLJ 313 , it is not necessary to deal with the various contentions in great details. , 2001 (2) CLJ 313 , it is not necessary to deal with the various contentions in great details. However, a few facts with respect to certain relevant dates need to be noticed. They are as under : (A)january 01, 2001 : Application for seeking voluntary retirement from the services of the bank submitted by the petitioner. (annexure 'p-2' page 31 to the petition) (B)JANUARY 27, 2001 : Application for withdrawal of the application for voluntary retirement under the scheme on the plea that the same was a mistake by the petitioner as he did not opt for pension and his son and daughter both are still studying and there is no other earning member in the family and therefore he prayed for withdrawal of his option for voluntary retirement and for treating his application for voluntary retirement as cancelled. (annexure 'p-3 page 35 to the petition ). (C)february 03, 2001 : Another application for withdrawal of his option for voluntary retirement and treating his application for voluntary retirement as cancelled was submitted by the petitioner on the same plea as taken in the letter dated January 27, 2001. (annexure 'p-5' at page 37 to the petition ). (D)march 07, 2001 : Application for acceptance of voluntary retirement under the scheme and for ?withdrawal of his letter of withdrawal? for voluntary retirement under the scheme was submitted by the petitioner showing reason that due to misunderstanding, he applied for withdrawal of his VRS application and he is now badly in need of money for marriage, educational needs and treatment of his family members and therefore he withdraws his letter of withdrawal. (E)may 22, 2001: The appropriate authority of the bank in view of the request of the petitioner for accepting his original application under voluntary retirement scheme, and withdrawal of withdraw of option/application from the scheme earlier, accepted the said request/option of the petitioner for voluntary retirement under scheme from the services of the bank alongwith other similar employees and the said decision was communicated to the petitioner by letter dated May 25, 2001. (annexure 'p-4' page 36 to this petition? ). (F)may 25, 2001 : Letter of General Manager (Per.) being the impugned order whereby petitioner's application under VRS was accepted and communicated to the petitioner. (annexure 'p-4' page 36 to this petition? ). (F)may 25, 2001 : Letter of General Manager (Per.) being the impugned order whereby petitioner's application under VRS was accepted and communicated to the petitioner. (G)may 30, 2001 : The application dated May 28, 2001 was submitted by the petitioner requesting to treat the application for voluntary retirement under the scheme as withdrawn and cancelled. (H)june 27, 2001 : Bank issued a letter dated 27th June, 2001 releasing the petitioner from the services of the bank with retrospective effect. (I)july 1, 2001 : Name of petitioner struck off from the attendance Register and release order sent to petitioner and salary was paid upto that date by bank to petitioner. ( 6 ) ACCORDING to respondents the aforesaid application dated 30th May, 2001 was not received by the General Manager by 31st May, 2001. It is, however, not stated as to when it was received. It also not denied that no such letter of petitioner was received by the bank. It is therefore to be assumed that such letter was received though sometime subsequent to 31st May, 2001 but before the letter dated 27th June, 2001. ( 7 ) THE respondent-bank issued the said letter dated 27th June, 2001 releasing the petitioner from the services of the bank with retrospective effect from 31st May, 2001. On being tendered the said letter through peon book, it is stated, petitioner refused to receive the same and proceeded on leave thereafter. The name of the petitioner was struck off from the Attendance Register with effect from 1st July, 2001 and the release order was sent to the petitioner by registered post with A. D. as also by courier. Petitioner, it is not disputed was paid the salary for the month of June 2001. ( 8 ) MR. Milan Bhattacharjee appearing along with Mr. Kartick Bhattacharjee, learned advocates for the petitioner contended that as the petitioner has withdrawn the application for voluntary retirement before effective date viz. before the date of release, the petitioner is entitled to reliefs prayed for. It is the submission of Mr. Bhattacharjee that the jural relationship continued until the petitioner was released from service. Kartick Bhattacharjee, learned advocates for the petitioner contended that as the petitioner has withdrawn the application for voluntary retirement before effective date viz. before the date of release, the petitioner is entitled to reliefs prayed for. It is the submission of Mr. Bhattacharjee that the jural relationship continued until the petitioner was released from service. It was further submitted that the effective date would be 1st July, 2001 as the petitioner was 'allowed' to continue in the said post till that date and was also paid the salary for the month of June 2001. The petitioner had a right and was entitled to withdraw or revoke his request earlier made under VRS before it became effective, it is contended. According to learned counsel for the petitioner the contract of service remains till the employee is relieved from his duties. Reliance has been placed by the learned counsel for the petitioner upon the judgment of the Supreme Court in Shambhu Murari Sinha v. Project and Development India and Anr. , 2000 (5) SCC 621 and more particularly to paragraph 5 thereof. It may not be appropriate to rely upon the said judgment as it was set aside on Review. Matter was reheard by the Supreme Court and the judgment dated 13th March, 2002 is reported at 2002 (2) Supreme Court cases 291, paras 18 and 19 of that judgment are apposite and for that reason are extracted hereunder :18. Coming to the case in hand the letter of acceptance was a conditional on inasmuch as though option of the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the responded. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i. e. 26th September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end. 19. We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service. ( 9 ) MR. Subir Sanyal appearing along with Mr. S. Das, learned counsel for the respondent-bank, however, submitted that the conduct of the petitioner is to be noticed and various applications made by him from 27th January, 2001 onwards will disclose that the reasons alleged for withdrawing his application under the VRS are neither true nor correct apart from the inconsistent stance being taken by the petitioner. It is further contended by Mr. Sanyal that letter of 30th May, 2001 was not received by the appropriate authority by 31st May, 2001. The facts of the case, it was strenuously urged by Mr. Subir Sanyal, learned advocate for the bank, will disclose that the request of the petitioner for accepting his voluntary retirement under the scheme and withdrawal of the petitioner's application for withdrawal of voluntary retirement under the scheme was considered and accepted by the appropriate authority. Petitioner was communicated of the same on 25th May, 2001 (impugned order) which was received by the petitioner on 25th May, 2001. Petitioner was communicated of the same on 25th May, 2001 (impugned order) which was received by the petitioner on 25th May, 2001. Petitioner cannot therefore, claim any benefits relying upon the judgments of the Supreme Court which are distinguishable on the facts of the case on hand. More particularly in the view of clause10 (e) of the scheme which specifically stipulates that it will not be open for an employee to withdraw the request made for voluntary retirement under the scheme after having exercised such, it was contended. ( 10 ) MR. Milan Bhattacharjee, learned counsel for the petitioner sought to explain the letter dated 7th March, 2000 being ?withdrawal of withdrawal? of letter of voluntary retirement by referring to the averments made in the affidavit-in-reply. Significantly, petitioner does not deny having given the said letter of ?withdrawal of withdrawal? dated 7th March, 2001. The explanation that it was given to Deputy Manager with clear instruction that if the Pension Scheme will come into effect only then the letter of 7th March, 2001 will be submitted to the competent authority, otherwise not, is neither plausible nor acceptable. Once it is admitted that such a letter was given by the petitioner to his Superior Officer of the bank there is no reason why the bank authorities should not or could not have acted upon the same. There was suppression with respect to the said letter of 7th March, 2001 and mention of the same is to be found only in affidavit-in-reply when allegations of suppression were made in the affidavit-in-opposition. ( 11 ) HOWEVER, as regards the submission of Mr. Subir Sanyal, learned counsel for the respondent-bank with regard to the different stance/s taken by the petitioner at different times. It must be observed that the only question for consideration in this proceeding is whether the petitioner had a right and was entitled to withdraw or revoke his request earlier made before it became effective. It is not for this Court to go into the question either of the legality or of the validity or correctness of the grounds stated in the various letters of the petitioner. Suffice it to state here that such inconsistent stance by the petitioner would not militate against the right of the petitioner, if he had such a right, to revoke the option exercised by him under the VRS before the effective date. Suffice it to state here that such inconsistent stance by the petitioner would not militate against the right of the petitioner, if he had such a right, to revoke the option exercised by him under the VRS before the effective date. Such submission of Mr. Subir Sanyal, however, would be relevant and have material bearing while considering the nature of relief, if any, to be granted to the petitioner. ( 12 ) FROM the judgments of the Supreme Court in Balaram Gupta v. Union of India, AIR 1987 SC 2354 , Power Finance Corporation Ltd. v. Pramod Kr. Bhatia, 1997 (4) SCC 280 , J. N. Srivastava v. Union of India, AIR 1998 (9) SCC 559 , Union of India v. Gopal Chandra Mishra, 1978 (2) SCC 301 and the latest judgment of the Supreme Court dated 13th March, 2002 in Sambhu Murari Sinha v. Project and Development India and Anr. , cited supra, which has taken notice of the aforesaid judgments of the Supreme Court, amongst others, the law laid down by the Supreme Court is that in the cases relating to voluntary retirement, the effective date is the date on which the employee is relieved from service i. e. to say the date when the relationship of employee-employer comes to an end and before the said date the employer has locus poenitentiae i. e. to say he is entitled to withdraw his application/option for voluntary retirement. ( 13 ) AS already noticed, supra, the petitioner by his letter dated 28th May, 2001 had withdrawn his option under the VRS before the effective date i. e. to say the date when he was relieved from service by the letter dated 27th June, 2001. Though in the impugned order dated 25th May, 2001 it was stated that the petitioner will be relieved from the service of the Bank on 31st May, 2001 the petitioner was not released until the letter dated 27th June, 2001 and that too with retrospective effect. A release order can be prospective and not retrospective. More so after having allowed the petitioner to work and without releasing him. In my view, therefore, the effective date would be 27th June, 2001 when the release order was issued which the petitioner refused to accept and, therefore, his name was struck off from the attendance register and he was paid the salary for the said month. More so after having allowed the petitioner to work and without releasing him. In my view, therefore, the effective date would be 27th June, 2001 when the release order was issued which the petitioner refused to accept and, therefore, his name was struck off from the attendance register and he was paid the salary for the said month. Nothing has been brought on record that the petitioner was released from service of the bank on any date earlier than to the letter dated 27th June, 2001. The impugned order, for that reason cannot be sustained and is liable to be set aside. ( 14 ) IT must of course be mentioned here that in the latest judgment of the Supreme Court in Shambhu Murari Sinha's case their Lordships in para 5 of that judgment have observed as under :we have perused the whole scheme and we do not find any condition that once an option to voluntary retire is exercised by an employee and the same is accepted by the employer, the employee is not entitled to withdraw from voluntary retirement. This position is accepted at the Bar. While allowing the appeal, the Division Bench of High Court in fact considered the ratio laid down in Balaram Gupta's case (supra ). ( 15 ) IN the case on hand also there is no such clause in the scheme that once the employer Bank accepts the application of the employee the employee is not entitled to withdraw the same. The clause obtaining in the scheme with which we are concerned in this case is clause 10 (c) which states that it will not be open for an employee to withdraw the request made for voluntary retirement under the scheme after having exercised such option. This aspect is concluded by the judgment of the Supreme Court in Union of India v. Wing Commander T. Parthasarathy, 2000 (1) SCC 158. This aspect is concluded by the judgment of the Supreme Court in Union of India v. Wing Commander T. Parthasarathy, 2000 (1) SCC 158. ( 16 ) IT cannot be either denied or disputed that there is a vast difference and distinction in law and therefore different consequence would follow in the case of a clause, as the one on hand, which stipulates that it will not be open for an employee to withdraw the request made for voluntary retirement after having exercised the option and a clause, which has been referred to by the Supreme Court in its latest judgment in Shambhu Murari Sinha's case, such as that once an option is accepted by the employer, the employee is not entitled to withdraw from voluntary retirement. In the case on hand, just as in Sambhu Murari Sinha's case, there is no such clause under the scheme that after acceptance of the option by the employer, the employee cannot withdraw his option. ( 17 ) THE petitioner, admittedly, has not rendered service to the Bank since 1st July, 2002. The petitioner has prevaricated in the matter and adopted inconsistent stand at different times. Petitioner suppressed the letter dated 7th March, 2001 and as noticed already the explanation offered by the petitioner is not acceptable the petitioner cannot be completely absolved of his aforesaid actions and must be held responsible therefore which contributed in some measure to the passing of the impugned order. ( 18 ) ACCORDINGLY, on the facts and circumstances of the case on hand the impugned order of the respondent Bank being annexure 'p-4' dated 25th May, 2001 be and is hereby set aside with a consequential direction that the petitioner shall be entitled to continue in the service of the respondent-Bank till the date of superannuation. A further direction shall issue to the respondent-Bank to reinstate the petitioner forthwith without break in service and with all consequential benefits except as regards any back wages for the period from 1st July, 2001 upto 30th April, 2002 (only ). Let urgent xerox certified copy of this judgment and order be furnished, if applied for, to the appearing parties on priority basis. Petition allowed.