Delhi District Court
Sh. R. K. Sharma vs Citi Bank N. A on 7 September, 2013
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (CENTRAL) DELHI
Suit No. 068/2008
SH. R. K. SHARMA
S/O. SH. J. P. SHARMA
R/O. 874, KUCHA PATI RAM,
BAZAR SITA RAM, DELHI - 06. ....PLAINTIFF
VERSUS
CITI BANK N. A.
3, PARLIAMENT STREET,
NEW DELHI. ....DEFENDANT
Date of Institution : 25.11.1994
Date on which the judgment was reserved: 23.08.2013
Date of pronouncement of judgment : 07.09.2013
J U D G M E NT
1.Vide this judgment I shall dispose off the suit for declaration
and damages filed by the plaintiff.
2.Brief facts are it is stated that the defendant is a foreign bank
carrying out its banking business in the name and style of
"Citibank N. A." at Delhi, having its branches at Bombay,
Calcutta and Madras. The defendant bank is governed and
controlled for all purposes under the Reserve Bank of India
and all other laws of the land are applicable and binding to the
defendant bank.
3.It is further stated that the plaintiff joined his service in the
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 1/34
2
defendant bank on 09.08.1968 as a clerk, promoted as Head
Clerk on 01.03.1972, again promoted as Special Assistant on
12.02.1974, again designated as Senior Banking Assistant on
10.04.1989 and finally promoted as Authorize Signer on
01.07.1991, and as such the plaintiff was working as authorize
signer in the year 1993 and the basic pay of the plaintiff was
Rs. 3460/ along with Rs. 748/ as allowance, excluding all
other allowances and benefits admissible under the rules.
4.It is further stated that the defendant bank introduced
voluntary early retirement plan (hereinafter referred to as
VERP) on 31.05.1993, the said plan was w.e.f. 01.06.1993 to
31.08.1993, however, the defendant bank had extended the
said plan for another one month i.e. upto 30.09.1993. It is
further stated that the defendant bank had introduced the
VERP with a view to induce the workers and officers etc.
working in the bank to accept the said plan, in order to weed
out the same from the Bank, not only this but the Management
of the bank personally called the person(s) individually /
personally and made every possible efforts to persuade the
said individual worker to accept the plan. The plaintiff initially
had not shown any interest in accepting the said plan,
however, on the pursuation of the Management the plaintiff
had opted for the retirement on 28.08.1993. The management
had also accepted the said option of the plaintiff vide letter
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 2/34
3
dated 06.09.1993.
5.It is further stated that according to the objects of the said
VERP the payments are to be made to the workman in a most
"equitable manner", however, the management bank in
violation of their own declaration and objectives made
payments to some of the workman secretly in a most
unequitable and arbitrary manner to the disadvantage of the
plaintiff. The management has not publically declared the
retirement and other benefits payable to all the workmen
similarly situated, but on the contrary kept the same very
secret to other workmen who opted for voluntary retirement.
Thus the management has dealt with individual workman
singly for making payment of the retirement and other
benefits, without disclosing about the entitlement of the other
similarly situated persons.
6.It is further stated that the plaintiff in good faith accepted the
said VERP and also the payment made by the Management as
a result of the acceptance of retirement plan on 11.10.1993
through cheques amounting to Rs. 6,38,580/ and Rs.
1,81,605/ towards Provident fund after deducting the income
tax and other taxes etc. It is further stated that the
management of defendant bank before making payment to the
plaintiff got the declaration forms signed from the plaintiff in a
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 3/34
4
very fraudulent manner, after making misrepresentation of
facts to the plaintiff by stating that the payments are being
made in a most equitable manner to all similarly situated
persons / workers opting for the retirement plan. It is further
stated that the plaintiff in good faith and on the assurance of
the defendant bank accepted the statement / declaration of
the management bank and signed the said declaration form. It
is stated that the plaintiff is not bound by the said declaration,
as the declarations have been signed by the plaintiff in good
faith and assurance, of the defendant bank, while the same
were based on fraud and misrepresentation of facts, as the
management had in a most arbitrary manner discriminated in
the quantum of payment towards retirement benefits and
pension benefits made to the plaintiff with other similarly
situated persons not only in Delhi branch, but with those
opting for VERP in Calcutta Branch as well as in Madras
Branch.
7.It is further stated that after accepting the payments, the
plaintiff came to know from some reliable sources that the
management had played a fraud, made misrepresentation of
facts and had acted in violation of their own objective i.e.
"payment shall be in most equitable manner", made
payments to similarly situated persons at a very enhanced rate
in comparison to the plaintiff. It is further stated that the
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 4/34
5
plaintiff is senior in length of service in the capacity of the
award staff and also acted in official cadre for sometime on
adhoc basis, then Sh. S. K. Maini and Sh. A. N. Tiwari, however
the management made the payments of the retirement
benefits as well as pension benefits at a very enhanced rate to
Sh. Maini and Sh. Tiwari in comparison to the plaintiff.
8.It is further stated that the management in Delhi branch had
also extended extra financial benefits to Sh. K. L. Malhhotra,
Sh. S. K. Maini and Sh. A. N. Tiwari, who had also opted for
VERP while working n the cadre of the award staff. It is further
stated that neither of these persons were promoted in the
management official cadre by any order of the bank nor
performed their duties and responsibilities in the official
cadre, however, they have been made payments in the official
cadre on accepting the VERP. Thus while all the
aforementioned persons opted for their retirement from the
cadre of award staff/ clerical have been extended retirement
and other benefits in the management cadre not only
arbitrarily, discriminately, but otherwise illegally by the
defendant bank.
9.It is further stated that when the plaintiff personally
contacted the responsible officers of the bank to discuss about
this arbitrary discrimination in making payment of the
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 5/34
6
retirement and other benefits amongst the similarly situated
persons, the plaintiff was not allowed to discuss the same. The
plaintiff accordingly sent a legal notice to the defendant bank
on 02.08.1994, the said notice was duly received and
acknowledged by the defendant bank, the defendant bank had
also sent a short reply denying the allegations made in the
legal notice reply dated 08.09.1994.
10.It is further stated that the defendant bank had arbitrarily
discriminated amongst similarly situated persons opting for
early retirement in making payments of the retirement and
other benefits to the plaintiff qua Sh. K. L. Malhotra, Sh. S. K.
Maini and Sh. A. N. Tiwari. This arbitrary discrimination was
also in violation of the objects of the retirement plan and thus
the management of the bank discriminated amongst similarly
situated persons, without any nexus illegally and in violation
of Articles 14, 16, 21 and 39 D of the Constitution of India.
11.It is further stated that the arbitrary discrimination in
payments of retirement and other benefits is not only
restricted to the payments made in lumpsum to the plaintiff
and other persons but also in a continuous process in terms of
"pension" payment to the plaintiff and payable to Sh. K. L.
Malhotra, Sh. S. K. Maini and Sh. A. N. Tiwari i.e. plaintiff is
getting a pension of Rs. 6,833/ per month while the pension
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 6/34
7
fixed in favour of Sh, S. K. Maini is Rs. 10,037/. This pension is
payable upto the age of 58 yrs and thus there is a difference of
Rs. 3,500/ in pension only. It is further stated that on account
of arbitrary payments made to the plaintiff qua Sh. S. K. Maini
and others, the plaintiff is legally entitled for the difference of
payments made to the plaintiff and to those persons as stated
in the para no. 14 of the plaint. Therefore it is prayed by the
plaintiff that he is entitled for same retirement benefits, as was
being made applicable to sh. S. K. Maini on accepting the
voluntary early retirement plan of 1993 and further a decree of
damages for Rs. 8,95,000/ along with 18% interest per annum
from the date of filing of the suit till the date of payment and
costs.
12.The defendant bank has filed Written statement as well as a
counter claim, stating that the present suit is not maintainable
and is liable to be dismissed, as the plaintiff has not
approached this court with clean hands, as after having
received all the amounts in terms of the voluntary early
retirement plan, which were in full and and final settlement of
all the plaintiff's claim. The plaintiff is estopped from filing the
present suit. It is further stated that each employee who
accepted the early retirement plan voluntarily was to be paid
as per the scheme announced by the defendant bank. The
plaintiff had been paid as per the scheme and certain extra
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 7/34
8
amount by mistake. Steps are being taken to recover that
amount. Merely because some other persons having been
paid some extra payments by mistake or otherwise does not
give the plaintiff any right to claim that amount.
13.It is denied that the said plan was introduced with a view to
induce the workers and officers etc. working in the bank to
accept the said plan with the intention to weed out the said
workers and officers in the bank. It is also specifically denied
that the management of the bank personally called the
persons individually / personally and made every effort to
persuade individual workers to accept the plan. It is further
submitted that the said plan introduced by the bank was for
the benefit of the employees. The said scheme was purely
temporary programme and was in response to many senior
employees who had expressed interest in taking early
retirement in order to pursue other interest. In the said plan/
scheme, it was clearly pointed out that the plan was designed
to help in meeting the immediate and long term needs of the
eligible staffs and families. It was entirely voluntarily and that
the eligible staff may close to participate or not. It is further
stated therein that all the employees were given individual
facts - sheet explaining what the plan means to them and their
families and in case there was any query or need of any
assistance in understanding plan, they were at liberty to talk to
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 8/34
9
CBG/TBG and GCB (Business Heads) in the respective cities.
It is specifically denied that the plaintiff had not shown any
interest in the said plan and the plaintiff be put to strict proof
thereof. It is also specifically denied that it was on persuation
of the management, the plaintiff had opted for retirement on
28.08.1993. However, it is submitted that pursuant to the
pliantiff's opting for early retirement the management
accepted the said option vide letter dated 06.09.1993.
14.It is further denied that the defendant in violation of their
own declaration and objectives made payments to some of the
workmen secretly in most unequitable and arbitrary manner
to the disadvantage of the plaintiff. It is submitted that as per
the said plan, each of the employee was specifically told that
he can get his individual facts sheets and thereafter he can
decide whether he wants to opt for the said plan or not. The
plaintiff asked for his facts sheet and accordingly opted for the
same on the basis of the details given in the said facts sheet.
15.It is further denied that the plaintiff accepted the payment
in good faith. It is specifically denied that the defendant bank
before making the payment to the plaintiff got declaration
form signed from the plaintiff in fraudulent manner, after
making misrepresentation of facts. It is submitted that each
employee was given his individual fact sheet and he had no
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 9/34
10
concern whatsoever with the other employees and the option
was of the concerned employees whether to accept the said
amount or not. It is further stated that the plaintiff having
obtained all the amounts and utilized the same has now with
ulterior motive and malafide intentions filed the present suit.
16.It is further stated that the plaintiff with malafide intention
and ulterior motive to make illegal and unlawful gains want to
get over the said declaration. It is denied that the the
defendant had ever misrepresented the plaintiff upon any
declaration and in fact as per the said scheme, each individual
employee was given his facts sheet and on the basis of which
he had to take a decision whether he wanted to avail the said
scheme or not. It is further denied that the defendant bank
had played any fraud upon the plaintiff or had made
misrepresentation of facts. It is stated that Sh. Maini and Sh.
Tiwari were made payments of retirement benefits as well as
pension benefit at the rate they were entitled to and each
employee had been given his individual facts sheet and had to
take a decision as to whether he is interested in opting under
the said plan / scheme on the basis of said figures. It is further
stated that once the plaintiff having exercised his option on
the basis of the figures given to him he can have no grievance
at this stage when he has availed all the benefits thereunder. It
is further stated that the plaintiff has been paid a sum of Rs.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 10/34
11
40,993/ in excess on account of sick leave, for which a
separate counter claim has been filed by the defendant bank.
It is denied that the defendant had discriminated and had
violated the object of the retirement plan or its action is in
violation of the Articles 14,16, 21 and 39D of the Constitution
of India. Therefore it is prayed that the suit of the plaintiff is
liable to be dismissed with heavy costs.
17.Counter claim has also been filed on behalf of the
defendant, in which the defendant bank had claimed an
amount of Rs. 61,869/ along with interest @ 18% per annum
from the plaintiff on account of extra sick leave amount, which
was paid to the plaintiff.
18. Replication has been filed by the plaintiff to the written
statement filed by the defendant bank, in which the
allegations made in the written statement have been denied
and those made in the plaint have been reiterated as correct.
19.Plaintiff has also filed written statement to the counter
claim of the defendant in which the assertions made by the
defendant bank that the plaintiff had been paid extra towards
the sick leave has been denied and it is stated that the counter
claim is not maintainable and is liable to be dismissed with
heavy cost.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 11/34
12
20.Replication to the written statement of the plaintiff to the
counter claim of the defendant bank has also been filed on
behalf of the defendant bank, in which the averments made in
the written statement filed by the plaintiff have been denied
and those made in the counter claim have been reiterated as
correct.
21.From the pleadings of the parties, following issues were
framed on 26.07.2000:
Issues
1.Whether the suit is maintainable?
OPP
2.Whether any cause of action has
arisen for filing the present suit? OPD
3.Whether the decree in terms of
declaration and damages as prayed for
can be passed in favour of the
plaintiff? OPP
4.Whether the defendant is entitled to
recover an amount of Rs. 61,689/ on
the basis of the counter claim as stated
in the written statement? OPP
5.Relief.
22.Thereafter the plaintiff in support of his claim has
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 12/34
13
examined himself as PW1. He has also examined one Sh. V. P.
Malik as PW2 and Sh. N. R. Mehta as PW3. In rebuttal, the
defendant bank has examined one Sh. V. R. Kulkarni as DW1.
23.I have heard Ld. Counsel for the plaintiff Sh. Rajeev Narain
and Ld. Counsel for the defendant Sh. Dinesh Agnani, Sr.
Advocate with Ms. Shoma Choudhary Advocate and perused
the record. I have also gone through the written submissions
filed on behalf of both the parties.
24.Ld. counsel for the defendant did not press his counter
claim, as per order dated 23.08.2013. Therefore the same is
dismissed as not pressed.
Issue No(s). 1, 2, 3 & 4
All the issues are taken up together as they are
interconnected with each other.
25.It is the admitted case of the parties that the plaintiff joined
his service with the defendant bank on 09.08.1968 as a clerk,
promoted as Head Clerk on 01.03.1972 and he was finally
promoted as Authorize Signer on 01.07.1991 and the plaintiff
was working as an Authorize Signer in the year 1993 and the
basic pay of the plaintiff was Rs. 3460/ along with Rs. 748/ as
allowance.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 13/34
14
26.It is also the admitted case of the parties that when the
defendant bank introduced voluntary early retirement plan (in
short VERP) on 31.05.1993, the said plan was w.e.f. 01.06.1993
to 31.08.1993, however, the defendant bank had extended the
said plan for another one month i.e. upto 30.09.1993. It is also
the admitted case of the parties that the plaintiff had opted
and accepted the said VERP on 28.08.1993 and the
management of the defendant bank had accepted the said
option of the plaintiff vide letter dated 06.09.1993. He was
given all the dues to which he was entitled, as per his tenure of
service and as per his cadre and post. He has prayed in the
present suit that a decree of declaration be passed in his
favour and against the defendant, declaring that the plaintiff is
entitled to the same retirement benefits and pension, as has
been made applicable to one Sh. S. K. Maini on accepting the
VERP plan in the year 1993 and further a decree of damages for
a sum of Rs. 8,95,000/ along with interest @ 18% per annum.
27.Ld. Senior counsel for the defendant has relied upon the
following judgments in support of his contentions "A. K.
Bindal & Anr. Vs. Union of India & Ors. 2003 (1) SCW 2625
SC, Delhi Stock Exchange Karamchari Sangharsh Samiti Vs.
Union of India & Arn. CW No. 3426/2001 dated 02.12.2003 &
Bank of India Vs. O. P. Swarankar etc. 2003 LAB I.C. 689". It
has been argued by Ld. Senior Counsel for the defendant that
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 14/34
15
the plaintiff had voluntarily accepted the VERP plan and the
said VERP plan was only an invitation to offer and the plaintiff
was given his factsheet, as per the said plan and he was also
put at notice, as per the said factsheet, the amount to which
he would be entitled on accepting the said VERP scheme. The
plaintiff, after going through the plan voluntarily made offer to
the defendant bank that terms of the VERP and the fact sheet
submitted to him were acceptable to him, which was accepted
by the defendant bank and the plaintiff was paid, as per the
said fact sheet. Infact it has been admitted by the plaintiff that
he was paid more amount than indicated in the factsheet,
therefore the counsel for the defendant has argued that the
plaintiff had entered into a bargain with the defendant bank
and once he had accepted the said bargain voluntarily, he is
estopped from challenging the same. The main grievance of
the plaintiff is that Sh. S. K. Maini had been paid more than
him i.e. plaintiff, though he was similarly situated, but it is
clearly borne out from the evidence on the record that Sh. S. K.
Maini was in the officer cadre at the time, when he had
accepted the said VERP scheme, therefore it cannot be said
that Sh. S. K. Maini and the plaintiff were similarly situated.
He has also argued that the witnesses of the plaintiff i.e. PW2
and PW3 have also admitted that they had also been paid, as
per their factsheets and they had no grievance against the
defendant bank.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 15/34
16
28.On the other hand, Ld. Counsel for the plaintiff has argued
that the plaintiff has been able to prove that Sh. S. K. Maini
was similarly situated as that of the plaintiff, but he was paid
much more amount than was paid to the plaintiff, as the said
Sh. S. K. Maini was in the Trade Union of the defendant bank,
therefore the defendant bank had negotiated separately with
him and even the VERP scheme was extended by one month
for helping him and two other persons and the plaintiff had
been discriminated by the defendant bank, therefore the
plaintiff is entitled to the damages and declaration and he had
also paid less amount, as had been paid to Sh. S. K. Maini and
two other persons mentioned in the plaint. He has further
argued that the defendant bank had admitted that the VERP
scheme was equitable in nature, therefore the plaintiff was
also entitled to the same amount, which had been paid to Sh.
S. K. Maini, Sh. A. N. Tiwari and Sh. K. L. Malhotra and the
Management of the defendant had simply paid them more
amount, as they were the office bearers of the Trade Union.
Therefore it is prayed that the suit of the plaintiff is liable to be
decreed.
29.Ld. counsel for the defendant has relied upon the
aforementioned judgments (supra) in support of his
contentions. The relevant extract of the said judgments is
being reproduced as under :
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 16/34
17
"(1). A. K. Bindal & Anr. Vs. Union
of India & Ors. 2003 (1) SCW 2625 SC
1. The voluntary Retirement Scheme
(VRS) which is sometimes called
Voluntary Separation Scheme (VSS) is
introduced by companies and industrial
establishments in order to reduce the
surplus staff and to bring in financial
efficiency. The office Memorandum
dated 05.05.2000 issued by Government
of India provided that for sick and
unviable units, the VRS package of
department of heavy industry will be
adopted. Under this scheme, an
employee is entitled to an exgratia
payment equivalent to 45 days
emoluments (pay + D.A.) for each
completed year of service or the monthly
emoluments at the time of retirement
multiplied by the balance months of
service left before the normal date of
retirement, whichever is less. This is in
addition to terminal benefits. The
government about the fact that the pay
scales of the PSUs had not been revised
with effect from 01.01.1992 and
therefore it has provided adequate
compensation in that regard in the
second VRS which was announced for all
central Public Sector Undertakings on
06.11.2001 Clause (a) of the scheme
reads as under :
(a). Exgratia payment in respect of
employees on pay scales at 01.01.1987
and 01.01.1992 levels, computed on their
existing pay scales in accordance with
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 17/34
18
the extant scheme, shall be increased by
100% and 50% respectively.
This shows that a considerable amount
is to be paid to an employee ex gratia
besides the terminal benefits in case he
opts for voluntary retirement under the
scheme and his option is accepted. The
amount is paid not for doing any work
or rendering any service. It is paid in
lieu of the employee himself leaving the
services of the company or the industrial
establishment and forgoing all his
claims or rights in the same. It is a
package deal of give and take. That why
in business world it si known as "Golden
Handshake". The main purpose of
paying this amount is to bring about a
complete cessation of the jural
relationship between the employer and
the employee. After the amount is paid
and the employee ceases to be under the
employment of the company or the
undertaking, he leaves with all his rights
and there is no question of of his again
agitating for any kind of his past rights,
with his erstwhile employer including
making any claim with regard to
enhancement of pay scale for an earlier
period. If the employee is still permitted
to raise a grievance regarding
enhancement of pay scale from a
retrospective date, even after he has
opted for Voluntary Retirement Scheme
and has accepted the amount paid to
him, the whole purpose of introducing
the scheme would be totally frustrated.
The contention that the employees opted
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 18/34
19
for VRS under any kind of compulsion is
not worth of acceptance. The petitioners
are officers of the two companies and are
mature enough to weigh the pros and
cons of the options which were available
to them. They could have waited and
pursued their claim for revision of pay
scale without opting for VRS. However
they, in their wisdom thought that in the
fact situation VRS was a better option
available and chose the same. After
having applied for VRSand taken the
money, it is not open to them to contend
that they exercised the option under any
kind of compulsion. In view of the fact
that nearly ninety nine percent of the
employees have availed of the VRS
scheme and have left the companies (FCI
and HFC), the writ petition no longer
survives and has become infructuous."
He has further relied upon following judgment in
which it was held as under :
"(2). Delhi Stock Exchange
Karamchari Sangharsh Samiti Vs.
Union of India & Arn. CW No.
3426/2001 dated 02.12.2003
A Voluntary Retirement Scheme is an
invitation to make offer by employees to
avail of benefit under the scheme. The
consideration which flows from the
employees is to forego their left over
service and consideration which flows
from the employer is the money to be
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 19/34
20
paid as per the scheme. Option under
Voluntary Retirement Scheme is thus in
the nature of an offer and acceptance. A
voluntary Retirement Scheme is not a
unilateral action on the part of the
management (See 2003 AIR SCW 313
State Bank of India Vs. O. P.
Swarankar). Indeed, there was no
compulsion for the employees of the
respondent no. 2 to avail the benefit
under the scheme. There applications were processed and accepted by respondent no. 2. In batches, employees were released between 15th November, 1999 to 20th January, 2000. To that extent, the petitioners can have no grievance."
He has also relied upon following judgment. The relevant part has been reproduced as under : "3. Bank of India Vs. O. P. Swarankar etc. 2003 LAB I.C. 689, wherein the Apex court held as follows :
64. Once it is held that the provisions of the Indian Contract Act, 1872, would be applicable, the Scheme admittedly being contractual in nature, the provisions of the Act shall apply. The Scheme having regard to its provisions as noticed hereinabove would merely constitute invitation to treat and not an offer.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 20/34 21
65. A proposal is made when one person signifies to another his willingness to do or abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence (See Section 2(a)). Herein the banks by reason of the scheme or otherwise have not expressed their willingness to do or abstain from doing anything with a view to obtaining assent of the employees to such act. It will bear repetition to state that not only the power of the bank to accept or reject such application is absolutely discretionary, it, as noticed herein before, could also amend or rescind the scheme. The scheme, therefore, cannot be said to be an offer which, on the acceptance by the employee, would fructify in a concluded contract.
66. The proposal of the employee when accepted by the Bank would constitute a promise within the meaning of S.2(b) of the Act. Only then the promise becomes an enforceable contract. In the instance case, the banks when floating the scheme did not signify that on the employees assenting thereto a concluded contract would come into being in terms whereof they would be permitted to retire voluntarily and get the benefits thereunder.
67. Furthermore, in terms of the said scheme, no consideration passed so as to constitute an agreement. Once it is Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 21/34 22 found that by giving their option under the scheme, the employees did not derive an enforceable right, the same is absence of any consideration would be void in terms of S.2 (g) of the Contract Act as opposed to S.2 (h) thereof.
68. Furthermore, even by opting for the scheme as floated by the banks, no consideration is passed far less amounting to reciprocal promise.
69. Once it is found as would appear from the position rendered by this court that the employees do not have an enforceable right upon making an option the same would be void in terms of S.2(g) of the Contract Act as opposed to S.2(h) thereof.
70. The distinction between an offer and invitation to treat has been dealt with some clarify in Gibson Vs. Manchester City Council reported in 1979 All ER 972.
71. In that case the council adopted a policy of selling council's house to Mr. Gibson. The council wrote a letter to Mr. Gibson that "it may be prepared to sell the house to you at the purchase price of pounds 2,275 less 20% = Pounds 2180 (free hold)". He was invited to make a formal application which he did. Before the documents could be executed the control of the council changed hands as a result whereof policy of selling the council house was reversed.
72. When it was claimed by Mr. Gibson that the transaction amounted Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 22/34 23 to a binding contract, the House of Lords negativing the same held that the letter in question was an invitation to treat and Mr. Gibson's application was an offer and not an acceptance.
73. In the instant case, there was even no reasonable certainty that the scheme would be acted upon.
Furthermore, terms and conditions thereof could be amended and even the scheme itself could be rescinded.
74. We, therefore, have no hesitation in coming to the conclusion that the voluntary scheme was not a proposal or an offer but merely an invitation to treat and the applications filed by the employees constituted "offer".
75. Once the application filed by the employees is held to be an "offer":
section 5, in absence of any other independent binding contract or statute or statutory rules to the contrary would come into play.
30.Ld. counsel for the plaintiff has relied upon a judgment 1999 (1) SCC 741, in which it was held as under : "The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights an "for any other purpose". The distinction between public law and private law remedy by Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 23/34 24 judicial adjudication gradually marginalized and became obliterated.
In LIC Vs. Escorts Ltd. (SCC at P. 344), this court in para 102 had pointed out that the difficulty that the difficulty will lie in demarcating the frontiers between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances".
31.It is the admitted case of the plaintiff that he had voluntarily opted for VERP scheme on 28.08.1993 and pursuant to the plaintiff's opting for early retirement the management accepted the said option vide letter dated 06.09.1993. It is not the case of the plaintiff that he was forced by the defendant bank to accept the said VERP Scheme and the defendant bank got signed the relevant documents from the plaintiff fraudulently perforce. Nor it is the case of the plaintiff that he is ready to return the amount, which he had received from the Management and he be reinstated. His case is that some other persons were given more amount, as per the same VERP Scheme.
Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 24/34 25
32.The plaintiff in his testimony in his cross examination has admitted that the plaintiff had opted for the VERP scheme and the said VERP plan is Ex.PW1/1 and the defendant bank had accepted the offer made by the plaintiff, vide its acceptance letter, which is Ex.PW1/2 and that he was given a raw deal, as he was assured that the deal was a good one and when he came to know that certain other employees had been paid more as compared to him, he sent a legal notice to the bank, which is Ex.PW1/4 and the comparative statement showing different payments paid to Sh. Maini, Sh. Tiwari and the plaintiff is Ex.PW1/3. PW1 in his cross examination, has admitted that in the VERP scheme floated by the bank in the year 1993, it was stated that factsheet would be given to each employee, who was eligible under the scheme. He was also given the the factsheet showing his entitlement for various benefits, which he would be entitled to in case he opted for voluntary retirement. He denied that he was given the amount which was offered in the fact sheet. The factsheet was put to him in his cross examination, which was given to him as per the plan, he admitted the same as correct, which was Ex.PW1/D1. He has also admitted the payments made to him after he opted for voluntary retirement was reflected in Ex.PW1/D2. He further stated in his cross examination that the amounts shown in Ex.PW1/D1 and Ex.PW1/D2 vary and the amount which he was paid finally when he opted for Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 25/34 26 retirement as per Ex.PW1/D2 is much more than the amount offered to him as per Ex.PW1/D1.
33.In view of the judgments (supra) relied upon by Ld. Senior Counsel for the defendants, it is clear that the VERP scheme issued by the defendant bank was only an invitation to offer to such employees, who wanted to opt for voluntary retirement, as the bank wanted to get rid of those employees and at the same time, all the employees were given their individual fact- sheets by the defendant bank explaining the financial benefits, which they were going to derive from the said scheme, since it was thought that the said scheme was beneficial both for the management as well as for employees. The plaintiff was also given his factsheet Ex.PW1/D1 i.e. the amount, which he would be entitled for, if he opted for the said scheme, the plaintiff made an offer to the defendant bank and the said option / offer was accepted by the defendant bank, vide letter Ex.PW1/2. Once the bank accepted the offer of the plaintiff bank vide letter Ex.PW1/2 and the plaintiff was paid all the benefits to which he was entitled to as per his factsheet Ex.PW1/D1 a valid legally enforceable contract came into being, it appears that the plaintiff having accepted the fact sheet and the amount, which was paid to him by the defendant bank, walked out of the defendant bank voluntarily. Once the plaintiff had done so, the plaintiff is estopped from Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 26/34 27 challenging the said scheme, as there was no compulsion for the plaintiff to accept the said scheme and it is not the case of the plaintiff that he was forced to accept the said VERP scheme, neither the same has been pleaded anywhere in the plaint.
34.The only grievance of the plaintiff is that the three other persons had been paid much more than him, though they were also similarly situated i.e. they were working on the same rank and post, as the plaintiff was. In this regard, the testimony of PW1 has to be seen, whether plaintiff has been able to prove the same, as well as supporting testimonies of PW2 and PW3. PW1 in his cross examination has stated that it was correct that at the time when the actual factsheet was given to him in June 1993, his salary per month (Basic + DA + Special Allowance) was Rs. 7294/ and it was also correct that when final payments were made by the bank on his accepting the voluntary retirement, the same were paid on his last drawn salary of Rs. 7601 (Basic + DA + Special Allowance). He has also admitted in his cross examination that he never made any complaint to his superiors that he was induced to accept the said scheme. PW1 in his further cross examination has stated that it was correct that in the Ex.PW1/DX1, the last drawn salary (basic) of Sh. S. K. Maini was shown as Rs. 13503/ and it was correct that Sh. Maini had been paid all the benefits under Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 27/34 28 the retirement plan on the basis of this salary only. Further a question was put to him in his cross examination as under "Q. Is it correct that the basis of your suit is the different amount paid to Sh. Maini only and not with respect to K. L. Malhotra and A. N. Tiwari?", to which he replied as under : "A. Yes.". Therefore it appears that the grievance of the plaintiff, which is reflected from his above reply, in the present suit was only confined with regard to the different amount paid to Sh. S. K. Maini and not with regard to the amounts paid to the other two persons.
35.PW2 is Sh. V. P. Malik, an excolleague of the plaintiff and exemployee of the defendant bank, who had also similarly opted for VERP and he has also been extensively cross examined by the counsel for the defendant. He has also stated in his cross examination that the plaintiff was given all the benefits, which he was entitled to as per the voluntary early retirement plan announced by the defendant bank. It was correct that all employees were given their factsheet which stated the benefitmoney which an employee would get in case he opted for voluntary retirement. The plaintiff was also given the factsheet and he was paid as per the factsheet given to him. He has also stated that the basis salary of Mr. Malhotra, Mr. Maini and Mr. Tiwari was increased in the month of September, 1993. This witness admits that the basic Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 28/34 29 salary of these three persons was much more than that of the plaintiff. This witness further admitted that all the benefits under the VERP were given on the basis of last drawn salary of the employee as on 30.09.1993. He further submitted that it was correct that any person could have gone and met the higher management for negotiation.
36.Similarly PW3 Sh. N. R. Mehta, another colleague of the plaintiff and exemployee of the defendant bank, has deposed on the same lines as that been by PW2. He has also stated that he did not exactly remember what was the designation of the plaintiff, when he opted for voluntary retirement plan, but as far as he remembered, he was not working as an Authorize signer and it was correct that his benefits under the VERP were calculated on the basis of his last drawn basic pay and he has also admitted that he was paid as per the factsheet given to him. He has also supported the testimony of PW2 in this regard when he stated in his cross examination that the last drawn salary of the aforementioned three persons i.e. Mr. K. L. Malhotra, Mr. S. K. Maini and Mr. A. N. Tiwari was more than that of the plaintiff. Thereafter he made a wavering statement that the same was less. Thereafter he stated that the last drawn salary of Sh. S. K. Maini was Rs. 13,500/. He has further stated that it was the discretion of the bank to give increment to any employee and no personal could have any grievance with Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 29/34 30 regard to the same. He has further stated that he was given all the benefits in terms of VERP, because each case was decided on one to one basis, but he did not know whether the plaintiff was given all the benefits. He had no document to prove that the aforementioned three persons were given extra benefits.
37.The witness of the defendant DW1 has also come into the witness box and has refuted the statements made by the plaintiff's witnesses, and stated that the VERP scheme was applicable to all the eligible employees and the basic structure of the scheme had not been changed by the bank to keep this scheme equitable and each and every employee had been paid as per his factsheet and had no concern with the factsheet given to the other employees and the retirement benefits of the plaintiff were calculated on his last drawn salary.
38.The above witness has been extensively cross examined on behalf of plaintiff. In his cross examination, he has stated that as far as he remembered about 111 persons in all from all the cadre of the bank opted for voluntarily retirement. This assertion made by the DW1 has also goes against the case of the plaintiff, as if the scheme of the defendant bank was totally unequitable and was foisted upon the employees forcibly, then it is hard to believe that 111 persons went with the same without raising any demur and protest against the same before Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 30/34 31 any authority or forum.
39.Regarding the argument of the counsel for the plaintiff that those three persons including Mr. Maini had got increment in the month of September, 1993, it has been admitted by PW2, that it was the discretion of the bank to give increment to any employee and no personal could have any grievance with regard to the same. All the witnesses of the plaintiff including the plaintiff have admitted that the benefits under the VERP were calculated on the basis of the last drawn basic pay of the employees, which included Basic + DA + Special Allowance and all the employees were paid as per the factsheets given to them. As per PW1, the amount, which was paid to Mr. S.K. Maini was much more than that of the plaintiff. The fact sheet, which was given to the plaintiff, filed on record as Ex.PW1/D2 shows that as on 30.09.1993, the plaintiff was working in the clerical cadre, whereas the factsheet of Sh. S. K. Maini, which was also put to the plaintiff Ex.PW1/DX1, shows that as on 30.09.1993, Sh. S. K. Maini was working in the cadre of Officer, and his last drawn basic salary was much more than the plaintiff. Therefore it cannot be said that Sh. S. K. Maini, against whom the plaintiff has the main grievance and had filed the present suit, was not similarly situated. All the witnesses have accepted that they had been paid the retirement benefits as per their own factsheets, which were Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 31/34 32 provided to them individually only and all the cases were decided on individual basis and they had no concern with regard to the other employees' factsheets.
40.Therefore it is stated that all the employees were given individual fact-sheets by the defendant bank explaining the financial benefits indicating the amount which they were entitled to, as per the said VERP scheme and once they opted or accepted the factsheet, they made offer to the defendant bank and once the defendant had accepted the same, then a concluded contract came into being. Therefore it was a private bargain of all those persons, who opted / accepted the VERP Scheme and made offer to the defendant bank and once the defendant bank had accepted the same voluntarily, there being no question of force and coercion. Then they are estopped from challenging the same, as once the bank had altered its position by accepting the offer of the employee and had paid all the amounts to such employees including all retirement benefits and employee(s) having walked out of the bank with such benefits as per VERP, the employee(s) are estopped from challenging the equitability of the scheme from which they had derived benefits voluntarily.
41.The judgment 1999 (1) SCC 741 (supra) relied upon by the counsel for the plaintiff is not applicable to the peculiar facts Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 32/34 33 and circumstances of the present case, as it is admitted case of the parties that defendant is neither State nor an instrumentality of the State, therefore Articles 14 and 16 of the Constitution of India are not available to the plaintiff against the alleged acts of discrimination of the defendant bank, but at the same time, some amount of fair play and equity have to be applicable in all acts of any organization even in the private sector i.e. to say that the acts of any persons / organization cannot be arbitrary or unequitable so as to grossly discriminate the rights of any person. There has to be certain amount of fair play and equity even in the acts of private employer.
42.No doubt, the suit for declaration has been filed by the plaintiff for declaration of title or legal character of right and such a declaration can be granted by the civil court u/s 34 of the Specific Relief Act, but at the same time, said relief is discretionary, but it has to be guided by the sound principles of judicial discretion. The first and foremost issue, which the plaintiff had to prove in the present case was that he was entitled to a legal right, which had been infracted by the opposite party, in view of foregoing discussion, plaintiff has failed to prove that he is entitled to any legal right and infraction of same by the opposite party. Therefore he is not entitled to any declaration as prayed and as a consequence it Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 33/34 34 follows as a corollary he is not entitled to any damages as claimed in the present suit.
43.All the issues are answered accordingly. In view of the above discussion, the present suit of the plaintiff is not maintainable, as there was no cause of action for filing the present suit and the plaintiff has also failed to prove that he is entitled to a decree of declaration and damages as prayed for. With regard to the counter claim filed by the defendant for recovery of an amount of Rs. 61,689/ from the plaintiff, same has already dismissed as not pressed, as on 23.08.2013 Ld. Senior counsel for the defendant submitted that he was not pressing for the same.
Issue No. 5(Relief)
44.In view of my findings on the above issues, the suit of the plaintiff stands dismissed with no order as to costs. Decree sheet be made.
45.File be consigned to the record room.
ANNOUNCED IN THE OPEN (SANJEEV AGGARWAL) COURT ON 07.09.2013. ADJ 03 (CENTRAL) / DELHI 07.09.2013 Suit No. 68/08 R. K. SHARMA VS. CITI BANK N.A. 34/34