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SMT. RAJNI JAIN versus P.N.B., & ANOTHER

High Court of Judicature at Allahabad

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Smt. Rajni Jain v. P.N.B., & Another - WRIT - A No. 4151 of 2001 [2001] RD-AH 30 (22 May 2001)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR                                                                                                      

Reserved

2001 (2) AWC 1099: (2001) 1 SAC 393

Allahabad High Court.

Civil Misc. Writ Petition No.4151 of 2001

Smt. Rajni Jain          …           Petitioner

                  vs

Punjab and Sindh Bank and another …  Respondents

HON'BLE YATINDRA SINGH, J.

INTRODUCTION

1. The only question involved in this writ petition is if the petitioner could withdraw her option for voluntary retirement under voluntary retirement Scheme 2000 (the scheme) floated by the Punjab and Sindh Bank  (the Bank).

THE FACTS

2. The petitioner was a clerk-cum-cashier in the Jhansi branch of the bank. The Bank floated a scheme for voluntary retirement and this scheme was open for one month, namely between 1st December 2000 to 31st December 2000. Petitioner, who was keen to take the benefit of the scheme, filed her option for voluntary retirement under the scheme on 28.11.2000--even before the time to give the option started. But equally soon she changed her mind.  She gave an application on 29.12.2000--before the period for giving option was to end--to withdraw her option for voluntary retirement.  The Bank did not act on her withdrawal application but accepted her option for voluntary retirement on 29.1.2001. She was also relieved from duties on that date. The petitioner has filed the present writ petition challenging her voluntary retirement.

PARTIES' SUBMISSIONS

3. I have heard Sri Anurag Khanna, counsel for the petitioner and Sri Amrish Sahai, counsel for the Bank.  They have also filed counter and rejoinder affidavits and with the consent of the parties I am finally deciding this case.

4. Sri Khanna counsel for the petitioner has cited following decisions.

(i)Balram Gupta vs. Union of India: AIR 1987 SC 2354 (Balram Gupta case).

(ii)Shambhu Murari Sinha vs. project and Development India,(2000) 5 SCC 621 (Shambhu Murari case).

(iii)JN Srivastava vs. Union of India: (1998)9 SCC 559 (JN Srivastava case).

(iv)Power Corporation Ltd. Vs. Pramod Kumar Bhatia: 1997 � SCC 280 (Pramod Kumar case).

(v)Union of India vs. Wing Commander T. Parthsarathy: 2000 (4) ESC 2787 (SC) (Parthsarathy case).

(vi)Avinash Kumar Yadav vs. The Executive Director, Indian Telephone Industries Ltd.: (2001) 1 UPLBEC 162 ( Avinash Kumar case)

He had submitted that:

The petitioner filed an application to withdraw her option before her option was accepted. It was even before the period for exercising option expired.

The bank is a State within meaning of Article 12 of the Constitution.  The provisions of the scheme may be given such interpretation so as to make it reasonable.  

The petitioner has given valid reasons for her withdrawal and no prejudice or harm has been caused to the Bank. The Bank ought to have permitted the petitioner to withdraw her option.

5. Sri Sahai counsel for the Bank has cited following decisions:

(i) Moti ram vs. Param Dev: AIR 1993 SC 1662 (Moti Ram Case).

(ii) Dr. Baljit Singh vs. State of Haryana: AIR 1997 SC 2150 (Baljit Singh Case).

He has submitted that:

Paragraph 10.4 of the scheme is clear. Option once given can not be withdrawn. This paragraph is as follows

''10.4 It will not be open for an employee to withdraw the request made for voluntary retirement under the scheme after having exercised such option.'

The cases cited by the petitioner are not applicable to facts of this case. These cases (except Avinash Kumar case) did not have any provision similar to paragraph 10.4.

Avinash Kumar case had a provision similar to paragraph 10.4 but the court did not consider this difference, but wrongly applied the law enunciated in the other cases that had different provisions.

POINTS FOR DETERMINATION

6. There is only one point for determination in this case (mentioned under heading ''INTRODUCTION') but it has following ramifications:

What is the general law relating to withdrawal of an option?

What is the effect of paragraphs 10.4 to 10.6 of the scheme?

The Bank is a State within meaning of Article 12 of the Constitution.  How should these paragraphs be interpreted?

CASES CITED BY THE PARTIES

7. The distinction raised by Shri Sahai counsel for the Bank about the decisions cited by the petitioner appears to be correct.  The court (except in Avinash Kumar case) was interpreting different provisions.  In Avinash Kumar case similar paragraph was there, but court did not go into this distinction. Let us first consider these cases and the general law in this regard. Avinash Kumar case will be considered under different heading.

Balram Gupta Case

8. The Apex Court in Balram Gupta case was concerned with the option of withdrawal of retirement under rule 48-A of the Central Service Pension Rule, 1972.  Under sub-rule 4 of Rule 48-A option once given could not be withdrawn unless so approved by the authority. Sri Balram Gupta (the petitioner in this case) gave an option for voluntary retirement with three months notice that was necessary under the rules.  Subsequently he filed an application withdrawing his option. This was within expiry of three month's period and before his option was accepted: he gave his withdrawal application before voluntary retirement became effective under the rules.  But the authority rejected the application for withdrawal of the option for voluntary retirement and the petitioner was retired. This order was challenged in the court.  The Apex court held that:

' On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effective if sub-rule (4) of Rule 48-A was not there.'

The court then went on to discus and held that the reason given by the petition in that case was valid reason and the authority ought to have permitted him to withdraw his application for voluntary retirement.

Shambhu Murari and JN Srivastava Case

9. The provision of law under which Shambhu Murari case and JN Srivastava case were decided, are not clear from the decisions.  But perhaps they were governed by the same provision as in Balram Gupta case. In these cases petitioner gave an application for voluntary retirement that was to become effective from future dates.  These applications were also accepted but as voluntary retirements were to be effective from future date the petitioners in these cases continued and were not relieved.  However--before the effective date and before they were relieved from duty--they filed applications for withdrawing their option for voluntary retirement.  The Apex Court on the basis of general principles enunciated in Balram Gupta case held that the petitioners were entitled to withdraw their options for voluntary retirement as it had neither become effective nor were they relieved.

Pramod Kumar Case

10. Pramod Kumar case was a reverse one.  In this case question was whether employer could withdraw voluntary retirement scheme or not.  The court on general principles held that voluntary retirement was conditional one and the scheme could be withdrawn before the conditions were complied with.

Moti Ram Case

11. Moti Ram case was case of resignation and not of voluntary retirement. The court was concerned with validity of rejection of a nomination paper in an election dispute. The court explained that if the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority.  But in case where the act of relinquishment is of a bilateral character, it does not become effective till it is accepted. The court further held that in that case the act of relinquishment was a unilateral act, it became effective the date it was given and the nomination paper was wrongly rejected.  The case here is of voluntary retirement that isunlike resignationalways bilateral.  This will be clear from the next case.

Baljit Singh Case

12. In Baljit Singh case an employee was required to give three months notice for voluntary retirement. The employee gave his option for voluntary retirement and without it being accepted also handed over charge. Subsequently the employer (after expiry of three months) declined to accept voluntary retirement. This was challenged on the ground that the petitioner stood retired after expiry of three months and his application for voluntary retirement can not be rejected.  The Apex Court rejected this contention on the ground that an employee does not have legal right of voluntary retirement and it could be rejected for valid reasons.

Parthasarthy Case

13. In Parthsarthy case the employee had given an option for voluntary retirement that was effective from a future date but before this could be effective or it could be accepted he filed an application withdrawing his option.  This was not accepted and the employee was relieved from the duty.  The Apex Court held that:

'The reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for pre-mature retirement cannot, in our view, be destructive of the right of the respondent, in view, to withdraw his request for premature retirement before it ever became operative and effective and effected termination of his status and relation with the Department. When the legal position is that much clear it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of substantive right of a person can be denied except on the basis of any statutory provision or rule or regulation.  There being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands.  Even that apart, the reasoning of the High Court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so called policy decision also cannot be said to suffer any conformity in law, to warrant our interference.'

GENERAL LAW

14. The general principles that emerges from decisions are that:

(i)Relinquishment of an office by voluntary retirement is bilateral and employee can retire only if his option is accepted.

(ii)An employee may withdraw his option of voluntary retirement before it becomes effective or in other words relationship of employer and employee comes to an end.

(iii)But the aforesaid right (to withdraw option of voluntary retirement) is subject to any lawful restriction.

PROVISION OF SCHEME--REASONABLE INTERPRETATION

Avinash Kumar Case

15. Avinash Kumar case is the only case that had similar provisions1. According to Sri Sahai counsel for the Bank, this case is wrongly decided. He submits that:

The court did not consider that there was no similar provision (providing absolute bar of withdrawing option) in decisions of the Apex Court relied by it.

The court in Avinash Kumar case wrongly relied upon the law enunciated in the other cases having different provisions.  

If this distinction was considered then the option of voluntary retirement once given can not be withdrawn.

16. Admittedly the Bank is 'State' within meaning of Article 12 of the Constitution.  It has to act reasonably.  In this light let us see how clauses 10.4 to 10.6 of the scheme should be interpreted.

17. In Balram Gupta case, rule 48-A(4) of the rules restricted the rights of an employee to withdraw his option to voluntary retirement even before voluntary retirement became effective. The Apex Court did not consider the validity of rule 48-A(4) in view of the interpretation placed by it. The court said that:

'The main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under sub-rule (4) of rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether sub rule (4) of Rule 48-A was valid or not.  It may be a salutary requirement that a Government servant cannot withdraw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons.  Therefore, for the purpose of appeal we do not propose to consider the question whether sub rule(4) of Rule 48-A of the pension Rules is valid or not.  If properly exercised the power of the government may be a salutary rule. Approval, however is not ipse dixit of the approving authority.  The approving authority who has the statutory authority must act reasonably and rationally.' (Italics mine).

18. The relevant parts of the Scheme are contained in paragraph 10.4, 10. 5, 10.6, and 10.20 of the Scheme2. Paragraph 10.4 states that option once given can not be withdrawn. The other provisions show that the scheme can be withdrawn at any time (paragraph 10.22). An employeeeven after acceptance of his option for voluntary retirementcontinues for three months (paragraph 10.20). Voluntary retirement is not unilateral and depends upon the acceptance of the Bank (paragraph 10.5 and 10.6). The Bank has discretion to accept or reject the option given by an employee.

19. There could be many reasons for rejecting the option given by the Bank. One reason could be that disciplinary proceedings are pending against the employee as was the case in Baljit Singh case. The second reason could be that the employee himself for bonafide reasons has withdrawn his option for voluntary retirement without any prejudice or harm to the Bank.  The bank may have other reasons to reject the option of voluntary retirement.  I do not wish to speculate upon them as they are not before me but the Bank has to act reasonably. Having regard to this, reasonable interpretation of Paragraphs 10.4, to 10.6 would be,

The option of voluntary retirement is not final and depends on the acceptance of the bank.

It can not be withdrawn if it is accepted. This in view of paragraph 10.4 of the scheme.

The option of voluntary retirement can not be withdrawn at the sweet-will of an employee. However, an employee may be permitted to withdraw it for bonafide reason, if no prejudice or harm has occurred to the Bank.

20. If the principles mentioned in the previous paragraph are applied in the present case then the petitioner had given reasons in her application for withdrawal.  She has stated that after the amount that she was to get was calculated, she realised that this Scheme is less beneficial to her than if she completes her entire service; and it is for this reason that she filed an application for withdrawal of the option.  This application was undoubtedly given before the time to give option for voluntary retirement expired. The Bank had neither done anything on the application by way calculating her amount to be paid under the Scheme nor has stated that any prejudice or harm has occasioned to the Bank.  The Bank also not indicated any reason or any difficulty that would arise in case the petitioner is permitted to withdraw her option. In these circumstances it can not be said that the Bank acted reasonably while rejecting the application of the petitioner for withdrawing her option.  The order dated 29.1.2001 accepting the option exercised by the petitioner for voluntary retirement and rejecting her application dated 29.12.2-000 withdrawing the option is illegal.

RELIEF

21. I have already held the order retiring the petitioner is illegal. She is entitled for reinstatement and consequential benefits but what about back wages. In all cases that were cited, employees were reinstated with all consequential benefits with full back wages.  Should this be done in this case?  According to the bank,

The provisions regarding voluntary retirement in other cases (except in Avinash Kudmar Yadav case) were different. There was no blanket ban as in the present case.

Only in Avinash Kumar Yadav case the provision was similar but the court did not go into this question.

Here the Scheme was clear that employees will not be allowed to withdraw their option.  It is under same scheme that permits voluntary retirement.  

In case court is reading down paragraph no. 10.4 to 10.6 then petitioner is not entitled to the back wages.

22. I do not wish to go in details. According to paragraph 10.203 employees are to continue for three months after their options are accepted. In this case option was accepted on 29.1.2001. The petitioner was to continue for three months more. The Bank, for some reasons best known to it, had relieved her. I am deciding this case within three months' time during which the petitioner was to continue. In view of this it would be appropriate to set aside the order dated 19.1.2001 with all consequential benefit including back wages. However She was given cheque on her voluntary retirement. She has not encashed it.  She has to return the same.

CONCLUSION

22. My conclusions are as follows:

(i)Reasonable interpretation of paragraphs 10.4 to 10.6 is as follows:

(a)An option for voluntary retirement under the Scheme can not be withdrawn after it is accepted.

(b) An option for voluntary retirement may be withdrawn before acceptance of the resignation.  But, this is not on the sweet will of an employee: it can be done for bonafide reasons.

(c)An employee may be permitted to withdraw his option for voluntary retirement for bonafide reasons if there is no prejudice or harm to the Bank (generally there would not be any).

(ii)The order dated 29.1.2001 accepting option of the petitioner for voluntary retirement without considering the application for its withdrawal is illegal.  

(iii)There were bonafide reasons for withdrawing the option for voluntary retirement.  There was no prejudice to the Bank.  The petitioner ought to have been permitted to withdraw her option for voluntary retirement.

24. In view of my conclusions, the writ petition is allowed. The order dated 29.1.2001 is set aside. The petitioner is reinstated with all consequential benefit including back wages. However the petitioner has to return back the cheque that she had received at the time of voluntary retirement.

Dated: 22.5.2001

BBL


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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