Karnataka High Court
S Ananthaswamy vs The Union Of India on 9 July, 2010
Author: B.S.Patil
Bench: B.S.Patil
777 1 _
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JULY, 2010
BEFORE
THE I-ION'BLE MR.JUsT1c:E 13.3. PATTE' ~
WRIT PETITION NO.20034 OF 20(.)__1V"'i'S.-l?'.A)A_i"~. d it '
BETWEEN:
Sri S. Ananthaswamy, V V
S/O Late Sri K.S. Srikanteswara Iyer,
Aged about 50 Years, "
Working as Senior Manager, '
Vijaya Bank, V * '
Credit Operation Dept, He_ad_Offic«::; . "
MG. Road Bang1aOre~»1 and A
Residing at No.296_, "Swad--ar,si'1anaA"
11 main Road, lO¢'1.¢Av--Croizss, I "
Vijaya Bank Lay 0i;§'_1f,'_V _ _ '
Bilekahalli. Bangalore-;56eV-076.' _ ' PETITIONER
(By Sri édubraiiianya Ad'_'\'. for
M/ S. Subba R210 &.C.Or11pa=;1_y;' Advs.)
AND:
1. OfuVIndia_,____&¢
- ' Represientied by the Secretary to
G'OVernment"*1\/Iinistry Of Finance,
2. Viijaya ,BanjkOf India,
{A Governrnent Of India Underkating),
represented by the Chairman &
"1¥Iar1aging Director, Head Offiee, No.41/2,
'NLG'.R0ad, Bangaiore-560 001.
V' The Chairman 81 Managing Director,
' "Vijaya Bank,
Head Office, No.41/2, MI}. Road,
BangalOrew560 O01.
4. The General Manager,
Personnel Department [HRS],
Vijaya Bank, Head Office, No.41/2,
M.G.Road, Bangalore--560 001.
5. The Chief Manager NR8 Cell},
Vijaya Bank, Head Office, No.41/2,
M.G.Road,
Bangalore--56O 001.
(By Sri Pradeep S. Sawkar, Adv. A.
M/ s Sundarswamy Ramdas &gAnand.__for_
R-2 to R-5, R-1 served] ' 2 C
This Writ Petition is filed uride1*.Articl'esg226 & 227 of the
Constitution of India praying 'tO'"St"!"lke "down para --11.5.0 of the
Vijaya Bank {Employees} Volu;ntai.ry i'2e'ti_rernent Scheme 2000 a
true copy of which is produg,-'ed asfmneirure'-A; as the said para
is ultra virus of the provisions of_Artit:lesV'1f4-,- '16, 21, 41 and 42
of the Constitution oflngjlia pane - ~ '
This Fetiltiorr.eorningjoingforllearing this day, the Court
made the foll-'«?\xri_I1§'2f§' 0' '
R
1. Int-his virritVVpetitioinf'petitioner is challenging para 11.5.0
of the.Vijaya"B_ar1k.J(EiiipVlo3zees] Voluntary Retirement Scheme,
,..:z0G0i:pr.oduced at 'Annexure-A alleging that the same is ultra
'ef:'Ag%t:e'1e;s:":14, 16, 21, 41 and 42 of the Constitution of
Indian endorsement 17.05.2001 issued by the Chief
f'..._"-.,ManageriA':.VRS Cell vide Annexure E is also challenged. A
direction is sought against the 2nd respondent -- Bank to grant
0 the relief to which the petitioner is entitled consequent upon granting the aforementioned reliefs.
tr Fcssaomnnrrrsii 0' " at
2. The facts leading to this Writ petition stated in nutshell are that the petitioner is an employee of the 2nd respondent- Bank. He entered the service of the Bank in the has a Clerical Trainee. At the time when the writ petition was working as a Senior Manager. [WhiIei_1e--,was .so«.\/=.rorl{ingV".as 7. Senior Manager, he applied for Voluntary'retirernentvpursuant to the Scheme introduced in this'rega_rd tlopy of the Voluntary Retirement lir_i.troduced the 2""
resp0ndent--Bank is The relevant clause for tl1e__puprpose§;'ol; found at 11.50, which V. A "].v1'.5v.f.)l.:'appli--c.ation s'ee1~:i"hg voluntary retirement slt1_bmitted""1WV.theeinployee under the Scheme shall be irre\ioc'a.ble.illttl,'uriljl-..nt;«t""be open for an employee to pwvithdr'aW'the"application after having exercised such .«.{aopti'on voluiitarily, under any circumstances."
'=I_t" dispute that the petitioner applied under the 31.01.2001 seeking the benefit of Voluntary lvV_retireni.eh't_. V The saune was accepted on 09.03.2001. The féicceptance was communicated on the same day ie. to say on 2 OEi.0S.2001. However. on 27.04.2001, the petitioner sought to 2' hiitithdraw the application filed for Voluntary retirement by filing £3'/.
_. 4 _.
yet another application. The said application is produced at Annexure--D. The same reads as under:
"Request for withdrawal of VRS given by me 31.01.2001:
I have submitted VRS on 31.01.2001 arid thesamc has been accepted by the management'*l--.}1a\fe. been informed that I will be relieVedJfro'ni«th'e services ofthe Bank on 31.05.2001. A A In this connection, I submit that to sofnietchanged 4 circumstances I would likeggtoypwithdraw \J'--.RS"given by me on 31.01.2001 and "as such I' request; you to kindly treat the given' by Ina on 3'1'.'01-.'2001 as withdrawn and peiirriit me 15,-o,c'o_nt_inue in the services of the Bank." " " 7' * "
4. A perusalof 'wnrepresaentation filed for withdrawai of"w'io111rltaify.'1'etiremeritapplication makes it clear that he _i.*«*as_Aaw_are'i:of_the fact 'thatfthe application filed by him on accepted by the management of the Bank aiidfthaft' he'.wa.s_"_.infonned of the same intimating thatuwould be=--rel_ieved from his services with effect from pelt is also clear from Annexure«~E corfitriuniCati.orr,addressed by the Chief Manager, [VRS «~« Cell} I . which is"----viIn'p't1gned in this writ petition that the petitioner .lwasii_.co1rii'nunicated of the acceptance of his appiication _'s"u_t>'r'r1itted seeking voluntary retirement and that instead of I the date of relieving shown earlier as 31.05.2001 he would '5 _ 5 _ be relieved from the services with effect from 30.06.2001 due to some administrative exigencies.
5. At the time of preliminary hearing, this Court --h'as"granted an interim order on 30.05.2001 directing the to permit the petitioner to continue_i.n..S_e1'ViceHfo'r'a.:pefio'dVofV_si§<u weeks. Thereafter, the said interirri.ord_e1*~'caine"to"be eisatended till further orders by order of interim order, the petitioner con_ti:nues' to bein servicie.
6. It is submitted at theV"I.earried counsel for the petitioner that:..tiie 'peti£ionei{.is'«nlow_'~.di_sci1arging his duties as Assistant Gcéneral dime retire on 31.07.2010. '?. petitioner contends that Clause-
11.5.0 of the Sche1ne'Ais arbitrary and illegal inasmuch as the s3iIn.c§--{is made i'r"1'-evocabie and the employee is deprived of an opportu._ni'ty'towithdraw the application once he exercised his fl/tire'. voluntarily, regardless of the attendant
-- circtimst~arices. It is his further submission that though the ui..re'q;:est Vvfnade for voluntary retirement was accepted by the .0 Bankbn 09.03.2001, the petitioner was entitled to withdraw the if "same for valid reasons before he was actually relieved from his service, as otherwise it would result in conferring arbitrary 'V77 5 H. powers on the management of the Bank. It is his further submission that the terms and conditions contained in the Scheme insofar as it relates to unilateral powers in favo'u_r'of the Bank either to grant or refuse to grant V01untaI'j,t_ or to fix the date of releége at its ehoiee aretotally illegal _.andp arbitrary. It is further contended that as the'pe'titioneif'*hatienot been paid any amount under the«.§chelmel'thought' for voluntary retirement was on' till he withdrew the same continued thereafter according two Vpteindency of this writ petition, the 'cannot be upheld. It is lastly conteridgetll is going to retire hardly within regard to the unblemished service if the communication Annexure--
E issuedpbyllltiie Management of the Bank is upheld he will be 'l V. depV'tiiied."'of the benefitsvto which he is entitled for having put in c_¢;or,i_tinuoi:s "sVeVn;i_ee with effect from 2001. In support of these contentionlsi;jgiearned counsel for the petitioner has placed
- '~re1ianc"e_on the following judgments:
T_Punjab National Bank Vs. P.K.Mitta1 (AIR 1989 so 1088} V' 2.? Bank of India Vs. O.P.SWaranakar(A1R 2003 so 858} _ 7 ..
3. Shambhii Murari Sinha Vs. Project 8: Development (AIR 2002 SC 134-1}
4. Srikantha SM. VS. B.E.M.L. {(2005} 8 SCC 314)
5. Power Finance Corporation Ltd. Vs. Bhatia [(1997)4 SCC 280} V l A
6. Tek Chand Vs. Dile Ram [AIRZQOO-1.SC*l_4tilol§§lfl'l:v
7. Bairam Gupta Vs. Union of India
8. Union of India Vs. Gopal..j..lC}1andra.__1\/lisra,{}HR"19:78 694-]
8. Learned counsel Mr.Sawkar has refuted the con;itent.icns urged"i3y"ti:ie:.lcoii_nse1 for the petitioner and has plai;:edJstron'g judgment of the Apex Court the and Sind Bank & Another Vs. S.Ranveer &.:..fmother [2004 H -- LLJ 573}. He invitesithe attenti'on____o{.'the Court to paragraph--3 of the said AV__jiidgmen._t. has also placed reliance, in support of his petitioner could have withdrawn the V . applicationfiled for voluntary retirement before it was accepted H 'C Bank, on the judgment in the case of Vice Chairman and Director, A.P.SlDC Ltd. 8: Another Vs. C -ll_4:'R;Varaprasad & Others [[2003)11SCC 572}. He has also it C it placed reliance on an unreported judgment of this Court dated %"
.. 8 ..
14/16.09.2009 passed in W.P.No.18281/2001 in the case of Sn Jayaprakash Shetty Vs. Union of India and Others. On the basis of the law laid down in the aforementioned decisions, he contends that there is no substance in the cha11eIige" by the petitioner to clause 11.5.0 of the scheme is no arbitrary action on the part of" the j issuing the communication dated to relieve the petitioner A.'du__ty from 30.06.2001 based on, the p.ae.éepta~n¢e .oi°'=h.is.--E application submitted seeking endorsement dated 09.03.2001.
9. In 11riiya].__«-- Cpntentions, I have carefully examined 'the. V with reference to the various documents"»__proVduc_edA'_ the judgments relied upon. It emerges that the-.und_iAsputed facts as adverted to herein above would ma1{e.iit"c1ear that the petitioner had applied for voluntary retiirement.'."'v»«Voliintary Retirement scheme was introduced on V . '1he petitioner had applied on 31.01.2000 and the ",:sa..=:1e_ was accepted and communicated on 09.03.2001 by the .0 to the petitioner. After the voluntary retirement "application was accepted by the Bank, the petitioner has made the request for withdrawal of the voluntary retirement on ié _ 9 _ 27.04.2001 vide AnneXure-D. As is clear from the judgment of the Apex Court rendered in the case of Punjab and Sind Bank & Another Vs. S.Ranveer Singh Bawa & Another LLJ 573}, the Voluntary Retirement Scheme nature and it constituted invitation and not anefferp and'--th.:1_t no consideration passed in terms of the SChenmeA'eS.Of tas'-to"bfensv:t:itute an agreement. Therefore, thekrevofcation effective at any time before 'asfup ftiothefldate of such acceptance no legal observation which is found in paragraph--3AA.0.fV:f't_he judgment of the Apex Court judgments in the case of Bank of India 2003 so 858). in the light it has to be stated that though fitfis writ petition that the scheme provides forka_:unilatei*alfdecision on the part of the Bank to rtrejectfffvtfhefv application filed and it makes the "seeking Voluntary retirement irrevocable which tantamount's__to an arbitrary condition, the effect of the same is '*..that while the employee can withdraw the application filed by "1i§i?t1"S€eking voluntary retirement before it was accepted he had 0' no right to Withdraw the same once the same is accepted by the Bank. In that View of the matter, it cannot be said that the it V???' 19 M action of the Bank in the instant case which has refused to entertain the request of the petitioner to withdraw his application filed seeking voluntary retirement after the same was accepted by it cannot be termed as arbitrary or unjust. In fact, the consideration of the Validity of the c}ause._containVedV in 11.5.0 does not arise in this case as the arbitrarily refused the app1icant'sgrepresentationfto iwithdrawbfp the request made for voluntary 9:'retirernentvifbeforefv accepted by it and in fact it was already accepted by 'acceptance was admittedly communicatetilhflto As can be seen from the facts narra._ted the withdrawal application submitted 'the applicarit_.xits_elf makes reference to the fact of acceptance ofpvoluntfafry Vrethrernent application submitted by the petitioner and ._:Vits..v'cornmL.1nication to him. In fact, in the 'Cif"deciysiorrs"renderedflbylhthe Apex Court in the case of Vice- i.Chair'mai1.V:antizl\flanaging Director, A.P.SIDC Ltd. & Another Vs. Others relied upon by the learned counsel for Hthe respondent, the Apex Court at paragraph-18 has observed 9' '- under:
9 ":18. These appeals are directed against the common order made in W.Ps.Nos.15703 and 15742 of 1999. Respondent 1 Vijay Kumar, in CA No.2-'i658 of 2001 and i 'if ,..ll,..
Respondent 1 A.Simhadri, in CA No.4659 of 2001 (hereinafter referred to as "the respondents") filed Writ Petitions Nos.15703 and 15742 of 1999 in the Highgtiopurt seeking direction to the appellant Corporation to them in service till they attain superannuationglll'Both covered by VRS Phase III. The 31.10.1998 as the cut--off d;1te"*"e_r¢_ vas .A}hesVe--1i;m'_-.g Respondents Viiay Kumar applications seeking voluntary retirernent 1,1snder.4_the_csaid Scheme on 31.10.1998 and i998~respectively. The Corporation acceptedgtheir.*o'ptions-zon 9-4'.'1'11.si998 and 27.10.1998, which "were '4a--cls:no:xIledged by the respondents on 26.1l..,_1.998 Thereafter, they applied for Vl'_}.l:".i'[hit?'1'I'a'_J\l'.'.#..:1': given for VRS on 08.01 . 1999 "248;.Q'2»_19-99:e'._' respectively. These respondentes':'coul_d not from service along with a large n'u1'n'b.erp lotheruemplowvees who were relieved on 31.0v'"7,1999V III because of the interim order granted Court in the writ petitions filed lay; them. V'I"ne_VpDVivision Bench of the High Court, by the '1 1' A ilnpuigned._0rder,Wa1lowed the writ petitions and directed 0 the "Corporation to continue their services till their 2:attainin'g--_the'sage of superannuation. In doing so, the High ,Court followed the decisions of this Court in Balram Guptaiv. Union of India. J.N.Srivastava v. Union of India 2 and Sharnbhu Murari Sinha v. Project & Development lndia. The High Court was of the View that the respondents had filed their withdrawal applications on 08.01.1999 and 26.02.1999 and had the benefit of £2!'/_ W12- interim directions to continue in service granted by the High Court on 30.07.1999 while they were to be relieved on 31.07.1999 and the result was that they were stillg in service on that date. The High Court further that these respondents had made the .
withdrawal before the effective date i.e. C they having not accepted the mojdetary be--nefitsle:under-- VRS Scheme, could withdraw their VRS. In this view, the w1'it>pe.titions,olf theseVVlresp_ond_yents ; were allowed. Before us, thejlearneducounsellgion both sides relied on the dvec.isionp.o'f Court Bank: of India v. O.P.Swarnakar andlg.a7.} decisions. The decisions citedcon beh.ac1:f_of do not help them. UnliE<;e"in_'~those respondents filed applications" tg,,.,_£?ik¢ '-yojiuntary retirement. under the Sc_herm2g":;'-- were accepted by the Corpjorationim. .-- acknowledged by these respondents; . he representation for withdrawal from thee}/'Rs xSchen_ae,lseveral days after the Corporation acgeepted applications made seeking voluntary ' if A i'etire.t'11en*t.;p nierelywbecause they could not be relieved in C int.erin1 order passed by the High Court in the 2 and that they could not be relieved irilmediateily after the cut--oif date for want of funds to be received from the Government by the Corporation, they could not take away the result or escape the cloiisequences of the acceptance of their voluntary retirement by the Corporation. In other words, question of withdrawal of their applications made for seeking fir W13."
voluntary retirement after their acceptance did not arise and they could not be permitted to do so in law. It is fairly settled now that the voluntary retirement ___once accepted in terms of the Scheme or rules, as the case_rn.ay he, cannot be withdrawn. In these appeals from._tl_1e it is clear that the applications of the resportd:ent-s:lgopting1 "
for voluntary retirement under themspchenfie .aceepted' and even the acceptance was Thereafter, they filed the writ petitiolnsff. Hergge; the Court was not right in allovJ_ingV_theAWrit 'holding ' i that they applied for withdravva_l:_before.'tl1ef_ effective date considering the dateimef relievingj._the~--_employees as the effective date. in the ;:thep:ffdi'sci1s_sions made in Civil Appeal in our view.
was mrrong3._.in«::t1'eating an effective date. The decision"s'_p.r.elied .':the'1respondents before the High Colirtfor _inQthis."C.o'L1rt_-- on facts do not help them. lVIorecver.._ the ,to be examined on the facts, terms of and'Aci'1'r;t;imstances governing a particular case' ,of Vwithdrawal offer made seeking voluntary A retire--mer"1t after itsmdue acceptance."
from the observations made and the law laid down: by/~theE'..~A:pex Court in paragi-aph--18 as extracted herein '""««.__l"'a¥oove even in the facts of the said case, the employee gufthereiil had sought to withdraw the application filed for 'voluntary retirement before he was relieved from service, but after the same was accepted. In such circumstances, the Apex 3?
?V'V 14 _ Court found that only because the writ petitioners therein could not be relieved immediately after cut off dates for want of funds to be received from the Government by the Corporation',~..vthey could not take away the result or escape acceptance of Voluntary retirement by the."CorpGrati_on, Apex Court has clearly ruied that utithdr'a\i;'alt'of the apphcaiions made seeking Voluntary retirement after theiwrilaccepptaince not arise and the employees cou'lti.:no.t_»bett to do so in
11. As rightly Apointedw counsel for the respondentwBa2nkt"in 'similaitcircumstances concerning the same 2W1 respsnden'ts.Ba'nl9. mfihé one Jayprakash Shetty -- anothergernployeetofpjtlleétvlbanikl this Court had occasion to deal with the same qulestionsw.ui'ged before this Court. Referring to _ the aforen1entione--d, judgments of the Apex Court, this Court has held _thaVt'oI1c:e'~-t,he voluntary retirement application is accepted hy rtespo-ncient--Bank, the same cannot be withdrawn by the _ employeeg is useful to refer, at this stage, that in »_Swaranakar's case referred to supra the similar scheme .' pertaining to Bank of India was in question and the Apex Court has made it clear that an employee who has submitted Voluntary retirement is entitled to withdraw the same before it W
- 15 -
was accepted and the acceptance was communicated by the Bank. In the light of the law laid down by the Apex Court as referred to supra which has application to the the present case, the judgments relied on by the for the petitioner having no direct bearing on the 1'_ss1ie=raised_ cannot"'.,, come to his aid. '
12. It is argued by the legarnedvfcohunsel referring to the observations by Vice-
Chairman and Managirig &hAnother Vs. R.Varaprasad & Others pararaph--20 that having regard in by the petitioner we A. and facts that the petitioner is attaining the age; »a.siLipe'rannuation on 31.07.2010 hardiy within a period the benefit of service rendered by _ him» the bene--fi_ts___receiVed by him by way of salary and other aiiowances also the benefit of fixation of his pension based by him as on the date of retirement, may «V have to "'--be'protected. The Apex Court in paragraph~2O of the if if " xaforementioried judgment has observed as under:.
":"20. It appears to us that the respondents have continued in service; may be they have attained superannuation by now or they are likely to attain it _.ll6_ superannuation in the near future; at any rate, they having been continued for all these years and taking note of the peculiar facts and circumstances of these cases, we do not think it is just appropriate to disturb the impugned order . Article 136 of the Constitution of India-fn_:':'the"«ltght of what is stated above. Ceon'se,quenctly," »r,h¢'se}* appeals are disposed of accdrdiirigiyi with order as to costs." it C be A C
13. it has to be stated here _t_huat_the context in which these observations are made'*-- _totally3 inasmuch as the employees therein. werensuccesv High Court and the High Court al1vowed_fithe'm« to continue in service until they attainedeii---ethVe aged?ct:edsuperannuation. In such circumstancesewhile"laying-dc=wn the law and making it clear that the employee had no right to withdraw the applia;:atio.n f11ea._g~;¢'¢k1ng voluntary retirement once the same in order to mitigate the hardship that would Al'restiltylto»'tl:e_ employees who had either retired or were about to retire, tl..1e'Apex Court in exercise of the powers under Article of the Constitution has made the aforementioned , dob'servations in paragraph--20.
_ A;
14. In the instant case, the law declared by the Apex Court is heavily relied upon by the learned counsel for the respondent- Bank and it is now well established by the decisions in"-th*eVcase of Vice--Chairrnan and Managing Director, :3:
Another Vs. R.Varaprasad 8: Others" {2oo3}"'1r1~.'IjjscCf 572.,_.%;mdg"'~-. Punjab and Sind Bank .3; Another vs. sr.Rhn'v-oer.'siogflga-aofo 8:
Another {2004-II--~LLJ 573) that-the ora,_o1oyeer.'hlao'.rhoploxlrorafo withdraw the application Voluntary retirement once the the vvake of such declaration of lavvby thefipex cannot come to the aid of to all respects so as to riggle out of judgment. However, it has to be nalllowances paid to the petitioner during though it was on account of the interim. orders ._passed by this Court cannot be recovered as he l°~has~rend'ere'd_his service and is paid the said benefits in return. ,._1nsofarl_aspects are concerned, the request made by the petitioneVr.cannot be entertained. it is therefore held that the V'-.,action"oVf_A'the Bank in rejecting the request made for withdrawal xof. voluntary retirement application cannot be found fault with. Therefore, the reliefs sought in the W}"it petition cannot be granted and the prayers made are rejected. _l8_W For the aforementioned reasons, I do not find any good ground to entertain this writ petition and the same istherefore dismissed.
PKS