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2007 DIGILAW 1516 (ALL)

JAI PRAKASH SRIVASTAVA v. STATE BANK OF INDIA

2007-05-18

PANKAJ MITHAL

body2007
JUDGMENT Hon’ble Pankaj Mithal, J.—The petitioner had joined as clerk in the State Bank of India on 5.11.1971. The Board of Directors of the State Bank of India in its meeting held on 27.12.2000 approved a scheme for voluntary retirement of the Bank employees. Accordingly, State Bank of India staff circular dated 3.12.2000 was issued notifying the scheme for voluntary retirement. The scheme was open from 15.1.2001 to 31.1.2001. In the Scheme, there was no provision for withdrawal of the option submitted for voluntary retirement. In pursuance of the aforesaid scheme, the petitioner applied for voluntary retirement on 15.1.2001. The petitioner’s application for voluntary retirement was accepted and a communication to this effect was issued on 13.3.2001 retiring the petitioner voluntarily with effect from 31.3.2001. The petitioner has challenged the aforesaid communication accepting his voluntary retirement with effect from 31.3.2001, on the ground that he had applied for withdrawal of his option for voluntary retirement vide application dated 20.2.2001. This application for withdrawal was made by him on the basis of subsequent State Bank of India circular dated 17.1.2001, which permitted withdrawal of application on or before 15.2.2001. The petitioner could not submit his application on or before 15.2.2001 as he had no knowledge of the said circular, inasmuch as, after submitting his application for voluntary retirement, he proceeded on medical leave and resumed duties only on 20.2.2001. The application for withdrawal of option was moved on the very day of the knowledge of the circular dated 17.1.2001 and there was no delay on his part. 2. Heard Km. Madhurima Bhargava, learned Counsel for the petitioner and Sri N.K. Seth, for the respondents. 3. Learned Counsel for the petitioner has contended that the petitioner had applied for the withdrawal of his application for voluntary retirement on 20.2.2001 and once the said application was made by him, it was not open for the respondents to have accepted his voluntary retirement vide impugned order dated 13.3.2001. The respondents should have first considered his application for withdrawal of the option for voluntary retirement. She has further contended that the petitioner had the right to withdraw the application of his voluntary retirement not only before it was accepted but till he was relieved from service. 4. The respondents should have first considered his application for withdrawal of the option for voluntary retirement. She has further contended that the petitioner had the right to withdraw the application of his voluntary retirement not only before it was accepted but till he was relieved from service. 4. On the other hand Sri N.K. Seth, learned Counsel appearing for the respondents had defended the impugned order on the ground that the time prescribed for withdrawing the application for voluntary retirement was up to 15.2.2001. The petitioner has not made any application during the above period. Therefore, his application for withdrawal of voluntary retirement, which was admittedly submitted on 20.2.2001 was not entertainable and it has rightly been ignored while accepting the voluntary retirement of the petitioner. The petitioner’s application for voluntary retirement was actually accepted on 19.2.2001, much before he had moved application for withdrawal of his option. The impugned order dated 13.3.2001 is merely a communication and not the actual order. He has further submitted that the petitioner cannot be permitted to challenge the impugned order accepting his voluntary retirement as the petitioner has been paid substantially all the post retiral benefits, which the petitioner has received without any protest. 5. State Bank of India voluntary retirement scheme issued vide circular No. CDO/81 2000-2001, permitted its employees to seek voluntary retirement by exercising option between 15.1.2001 to 31.1.2001. Petitioner applied for voluntary retirement in pursuance thereof on 15.1.2001. The said scheme contained no provision for withdrawing the option for voluntary retirement. The petitioner, on the basis of the subsequent circular dated 17.1.2001 submitted an application on 20.2.2001 for withdrawing his option for voluntary retirement. However, by communication dated 13.3.2001, the petitioner was informed that he shall be treated as voluntarily retired with effect from 31.3.2001. Thus, from the above facts, it is evident that the petitioner was to retire with effect from 31.3.2001. He had not retired on 20.2.2001 when he had submitted his application for withdrawal of his option for voluntary retirement, therefore, he continued to be in service of the bank till 31.3.2001 and as such his relationship with the bank had not come to an end. 6. He had not retired on 20.2.2001 when he had submitted his application for withdrawal of his option for voluntary retirement, therefore, he continued to be in service of the bank till 31.3.2001 and as such his relationship with the bank had not come to an end. 6. In the case of J.N. Srivastava v. Union of India and another, (1998) 9 SCC 559 , Hon’ble Supreme Court, while considering the entitlement of an employee to withdraw his voluntary retirement, held that even if voluntary retirement notice is accepted by the authority, employee has a right to withdraw the proposal for voluntary retirement. 7. Following the above view, the apex Court in the case of Shambhu Murari Sinha v. Project & Development India Ltd. and another, (2002) 2 SCC 437, went on to add that employee had a right to withdraw his proposal for voluntary retirement before his relationship of employer and employee come to an end even though option for voluntary retirement had been accepted. In the said case scheme for voluntary retirement also contained nothing about withdrawal of option exercised for voluntary retirement. 8. Sri N.K. Seth has placed reliance upon P. Lal v. Union of India and others, (2003) 3 SCC 393 , wherein it has held that an employee can withdraw his application for voluntary retirement before the effective date and the effective date would necessarily be the date on which the retirement takes effect. 9. In the present case, the effective date of retirement, as per admitted case of the parties, is 31.3.2001, the date on which retirement of the petitioner was to be affected upon. Therefore, the said date not having arrived and the petitioner having submitted application for withdrawal of his option for voluntary retirement on 20.2.2001, the respondents were under obligation to consider the said application on merits. Undisputedly the said application of the petitioner was considered. 10. It may not be out of context to mention that the right to withdraw resignation or option for voluntary retirement is substantive legal right and it cannot be denied merely on the basis of any policy decision (vide (2001) 1 SCC 158 , Union of India and another v. Wing Commander T. Parthasarathy) or by fixing any imaginary cut off date. The said right to withdraw continues “till effective date” that is the actual date on which retirement has to take place. The said right to withdraw continues “till effective date” that is the actual date on which retirement has to take place. Accordingly, the petitioner’s application for withdrawal, which was admittedly moved by him before the effective date, which happens to be 31.3.2001, was liable to be considered on merits. 11. The submission that the petitioner is estopped under law from challenging his voluntary retirement as he has accepted the post retiral benefits, is also not acceptable. In para-16 of the counter- affidavit, it has been stated that the petitioner was relieved from the branch office of the bank after close hours on 31.3.2001 and few of the benefits such as leave encashment and ex-gratia was deposited in his account after adjusting the liabilities. 12. Learned Counsel for the petitioner placing reliance upon three Judges decision of Supreme Court in Punjab & Sindh Bank and others v. Mohinder Pal Singh and others, (2005) 12 SCC 747, has contended that the deposit of the aforesaid retiral dues in the petitioner’s bank account, does not amount to acceptance of the same as the said amount has been deposited unilaterally by the bank without giving any information to the petitioner. The petitioner has not accepted the same and as such it would not construe waiver of any of his rights and his continuance in service. In the above case also the benefits available on retirement such as leave encashment amount were deposited in the bank account of the employee. Hon’ble Supreme Court held that such deposit of leave encashment is not part of the benefits under the voluntary retirement scheme and since mere deposit does not indicate any knowledge to the employee, same cannot be construed as waiver to his rights. Thus, the petitioner is not estopped under law from challenging his voluntary retirement merely for the reason that certain additional benefits accruing due to retirement, such as leave encashment and gratuity, have been unilaterally deposited by the bank in his account. The deposit of the aforesaid benefits would not amount to acceptance of the benefits under the voluntary retirement scheme. 13. In view of the above, writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the impugned order, accepting the option application for voluntary retirement and the communication, dated 13.3.2001 to the above effect contained in Annexure-1 to the writ petition. No order as to costs. 13. In view of the above, writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the impugned order, accepting the option application for voluntary retirement and the communication, dated 13.3.2001 to the above effect contained in Annexure-1 to the writ petition. No order as to costs. ————