Gujarat High Court
Karsanbhai Jivabhai Chamar vs Executive Engineer & 2 on 3 March, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/2048/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2048 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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KARSANBHAI JIVABHAI CHAMAR....Petitioner(s)
Versus
EXECUTIVE ENGINEER & 2....Respondent(s)
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Appearance:
MS VIDHI J BHATT, ADVOCATE for the Petitioner(s) No. 1
MR DG CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 2
RONAK D CHAUHAN, ADVOCATE for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 03/03/2016
ORAL JUDGMENT
1. By way of this petition, petitioner has prayed that the order dated 04.07.1998 be quashed and set aside and the respondents be directed to reinstate the petitioner on his original post Page 1 of 25 HC-NIC Page 1 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT with all necessary benefits.
2. Brief facts leading to filing of the present petition are as under:
2.1. The petitioner was appointed as Tube Well Operator in the year 1979 with respondent No.2.
He has worked on the said post for a period of 20 years. It is the case of the petitioner that he was informed by the respondent authority that if he is ready and willing to accept the voluntary retirement as per the scheme prepared by the respondent authority then the respondent is ready and willing to sell tube wells to him. Under the bona fide belief and relying upon the said representation, petitioner made an application- cum-consent letter to the respondent authority, wherein he has stated that he is ready and willing to purchase the tube well and the said amount be deducted from the voluntary retirement benefits that may be accrued to him.
2.2. It is further the case of the petitioner that when he came to know that no such scheme was in existence with regard to selling of tube wells, he immediately, on 9.7.1998, informed the respondent that he is withdrawing his application for voluntary retirement as the Government is not selling tube wells. He further requested to continue his service. However, inspite of such intimation given to the respondent authority the respondent accepted the request of the petitioenr Page 2 of 25 HC-NIC Page 2 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT for voluntary retirement by communication dated 02.12.1998. Thereafter, it was also informed to the petitioner that he is entitled to get Rs.2,46,672/- as per the scheme. This petition is, therefore, filed by the petitioner on 21.03.1999.
3. Heard learned advocate Ms. Vidhi J. Bhatt for the petitioner and learned advocate Mr.D.G.Chauhan appearing for the respondent Nos. 1 and 2.
4. Learned advocate Ms. Bhatt for the petitioner mainly contended that the petitioner had given an application for voluntary retirement on the basis of the representation made by the concerned officer of the respondent authority that the respondent authority would sell the tube well to the petitioner as per the said scheme. As and when the petitioner came to know that there was no such scheme with regard to sell of the tube wells, he immediately withdrew the said application and after the withdrawal of the application, the respondent authority has accepted the request of the petitioner for voluntary retirement and granted certain benefits. Learned advocate for the petitioner at this stage submitted that this Court heard the petition on 08.04.2009 and by way of the order dated 08.04.2009, learned Single Judge of this Court allowed this petition. At that time, the Page 3 of 25 HC-NIC Page 3 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT respondent authority has not filed any reply making allegations against the petitioner that the petitioner has suppressed any material fact. It is pointed out that thereafter the respondent Corporation has preferred an appeal being L.P.A. No.18 of 2010 before the Hon'ble Division Bench of this Court. The Hon'ble Division Bench allowed the said appeal and remanded the matter back to the learned Single Judge and kept all the contentions of both the parties open. Thus, this petition is listed for hearing before this Court. Learned advocate at this stage referred to the additional affidavit filed by the petitioner in the year 2007 and submitted that petitioner, on 12.12.1997, i.e. within the period of two months only, has informed the respondent authority not to accept his application for voluntary retirement. Learned advocate for the petitioner thereafter referred to the documents produced at page 52 to 54 of the compilation and submitted that the petitioner has accepted an amount of Rs.2,46,672/- with objection. It is, therefore, contended that when the petitioner has accepted the amount sent by the respondent authority with objection, it cannot be said that the petitioner has accepted the scheme of voluntary retirement floated by the respondent authority. It is further contended that the petitioner is ready and willing to refund the amount which he has received pursuant to the said scheme given by the respondent authority with reasonable rate of Page 4 of 25 HC-NIC Page 4 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT interest and the said amount be adjusted against the benefit for which the petitioner is entitled to receive. It is further pointed out by learned advocate for the petitioner that the petitioner has reached the age of superannuation on 30.06.2008 and therefore there is no question of now passing an order of reinstatement of the petitioner. However, the monetary benefits be granted to the petitioner. In support of the aforesaid contentions, learned advocate for the petitioner has placed reliance upon the following decisions:
(i) in the case of Balram Gupta v. Union of India and another, reported in AIR 1987 SC 2354.
(ii) in the case of Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, reported in (1997) 4 SCC 280.
(iii)in the case of Shambhu Murari Sinha v.
Project & Development India Ltd. & Anr., reported in (2002) 3 SCC 437.
(iv) in the case of Food Corporation of India & Ors. v. Ramesh Kumar, reported in AIR 2007 Supreme Court 2864.
5. On the other hand, learned advocate Mr. D.G.Chauhan appearing for the respondent Nos. 1 and 2 mainly contended that the present petition Page 5 of 25 HC-NIC Page 5 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT is required to be dismissed only on the ground of suppression of material fact by the petitioner. Learned advocate has referred to the averments made in para 3.4, 3.5 and ground (E) of the petition and submitted that it is the case of the petitioner in the petition that after the application was submitted for voluntary retirement by the petitioner he has informed the respondent authority for withdrawal of the said application on 09.07.1998. Petitioner has nowhere stated in the petition that he had given the application on 12.12.1997, which is produced at page 51 of the compilation. The application produced on 12.12.1997 is not at all received by the respondent authority and when there was no reference in the petition, it can be said that the aforesaid document is concocted document and is nothing but an afterthought on the part of the petitioner. It is further contended by learned advocate that when the petition was filed in March 1999 petitioner had already received an amount of Rs.5,31,259/-. However, the said material fact was not at all disclosed by the petitioner in the petition. Even thereafter the respondent authority has given further amount of Rs.49,943/- towards difference of gratuity, leave salary, etc. Thus, the petitioner has received total amount of Rs.5,81,202/-. Though the petitioner has accepted the said amount with objection he has already deposited the said amount in his account and utilized the same for Page 6 of 25 HC-NIC Page 6 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT his personal use. Thus, when the amount has accepted by the petitioner and utilized by him, now it is not proper for him to contend that he should be given other monetary benefits which were available to him as if he was in service during the period between 1998 to 2008, when he attained the age of superannuation.
6. Learned advocate has referred to the averments made in the affidavit-in-reply filed on behalf of the respondent Nos. 1 and 2 and submitted that when the voluntary retirement scheme was framed by the respondent Corporation w.e.f. 09.08.1997, certain benefits were offered to the employees of the Corporation if they were inclined to accept the voluntary retirement scheme. Petitioner submitted an application as per the said scheme. However, it is contended that it is true that petitioner thereafter informed the respondent authority not to accept his voluntary retirement. Said communication was dated 09.07.1998. However, when the respondent has informed the petitioner that his request for voluntary retirement is accepted by the Corporation and when the amount was sent to him, he accepted the said amount with an objection. It is once again submitted that total amount of Rs.5,81,202/- has been received by the petitioner which has been deposited by him in his account and also utilized the same. He, therefore, requested that the petition be dismissed.
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7. In support of the aforesaid contentions,
learned advocate Mr. Chauhan has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court.
(i) in the case of Bhaskar Laxman Jadhav & Ors. v. Karamveer Kakasaheb Wagh Education Society & Ors., reported in (2013) 11 SCC 531.
(ii) in the case of Punjab National Bank v. Virender Kumar Goel & Ors., reported in (2004) 2 SCC 193.
(iii)in the case of Bank of India & Ors. v. O.P.Swarnakar & Ors., reported in (2003) 2 SCC
721.
8. Having considered the arguments canvassed on behalf of the learned advocates for the parties and having gone through the material produced on record as well as the decision upon which the reliance is placed by the learned advocates, it emerges that the petitioner was working as Tube Well Operation since 1979. The respondent floated the scheme of voluntary retirement in 1997. Petitioner, therefore, submitted his application for voluntary retirement and requested the respondent authority to deposit the amount towards the sale of the tube wells. Thus, the petitioner has informed the respondent authority that he is willing to accept the voluntary Page 8 of 25 HC-NIC Page 8 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT retirement. However, by letter dated 12.12.1997, petitioner informed the respondent that when he came to know that tube wells would not be sold to him, his application for voluntary retirement shall not be accepted and his service in the Corporation be continued. No doubt, the respondent Corporation has disputed that this letter was not at all received by the respondent Corporation. However, Ms. Bhatt appearing for the petitioner has contended that the petitioner has not filed affidavit to that effect that such letter has not been received by the respondent Corporation and for the first time during the course of the arguments such contention is taken. However, the fact remains that by way of another letter dated 09.07.1998, petitioner has once again informed the respondent Corporation that his application for voluntary resignation may not be accepted and he wants to continue in service with the Corporation. It has also come on record that after the receipt of the said letter the respondent has accepted the application of voluntary retirement given by the petitioner and informed the petitioner that he is entitled to get certain amount as per the scheme. The said amount was also sent to the petitioner before filing of the petition. From the affidavit filed by the respondent authority, it is revealed that amount of Rs.5,31,259/- was received by the petitioner up to February 1999. However, the said aspect was not disclosed while filing the present Page 9 of 25 HC-NIC Page 9 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT petition. It was the duty of the petitioner to disclose the said aspect in the petition that he had received Rs.5,31,259/-. Thus, it appears that the petitioner has suppressed the aforesaid material fact while filing the present petition. No doubt, it is also revealed from the record that the said amount was accepted by the petitioner with objection. When inquired, learned advocate for the petitioner has submitted that after the amount was accepted by the petitioner with objection he had deposited the said amount in his account and some of the amount is also utilized/withdrawn by the petitioner from the said fund.
9. Thus, in view of the aforesaid facts and circumstances of the present case, now the decisions rendered by the Hon'ble Supreme Court upon which reliance is placed by the learned advocates for the parties are required to be considered.
10. In the case of Balram Gupta (supra), the Hon'ble Supreme Court, in para 10 and 11 observed and held as under:
"10. This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India v. Shri Gopal Chandra Mishra and others, [1978] 3 S.C.R. 12. There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, Page 10 of 25 HC-NIC Page 10 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977. On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977. On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitution was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there- after, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. On appeal this Court held that the resigning office necessarily involved relinquishment of the office which implied cessation or termination of, or cutting as under from the office. A complete and effective act of resigning office is one which severs the link of the resigner with his office and terminates its tenure. In the context of Article 217(1) this assumes the character of a decisive test, because the expression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge up to the age of 62 years. It was further reiterated that in the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before Page 11 of 25 HC-NIC Page 11 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general 1181 rule equally applies to Government servants and constitutional functionaries, this Court reiterated. The other peculiar essence of Article 217 which was discussed need not detain us in the facts of this case. 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.
11. In Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1 S.C.R. 438, there the Court struck down certain provisions of Air India Employees Service Regulations. We are not concerned with the actual controversy. But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government's approach to its employees. On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace. Our attention was also drawn to the observations of this Court in Raj Kumar v. Union of India, [1968] 3 S.C.R. 857. There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in inti- mating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. But in the facts of the instant case the resignation from the Government Page 12 of 25 HC-NIC Page 12 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appellant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the 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 with- draw 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. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is 1182 not an unreasonable reason. The guidelines indicated are as follows:
"(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right Page 13 of 25 HC-NIC Page 13 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT subse- quently (but during the currency of the no- tice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, howev- er, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in con- sideration of which the notice was originally given.
Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant con- cerned is agreeable."
10.1.The Hon'ble Supreme Court, in the case of Shambhu Murari Sinha (supra) has observed and held in para 16, 18 and 19 as under:
"16. In Power Finance Corporation Ltd. versus Pramod Kumar Bhatia [(1997) 4 SCC 280] this Court went a step further and observed thus:-
"It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end."Page 14 of 25
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18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated August 07, 1997 and September 24, 1997, but there was no response from the respondent. By office memorandum dated 25th September, 1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26 September, 1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26th of September, 1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end.
20. We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant Page 15 of 25 HC-NIC Page 15 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service."
10.2. In the case of Food Corporation of India & Ors. (supra), the Hon'ble Supreme Court observed and held in para 5 and 6 as under:
"5. Learned counsel submitted that in view of this once the respondent has given an offer for voluntary retirement on :3:
13.9.2004, he cannot revoke the same on 27.9.2004 and in that support learned counsel invited our attention to the decision of this Court in 2003(2) SCC 721 Bank of India & Ors. vs. O.P. Swarnakar & Anr. As against this learned counsel for respondent invited our attention to the decision in State Bank of Patiala vs. Romesh Chandra Kanoji & Ors. reported in 2004 (2) SCC 651. Both these decisions are of three Judges Bench and in the earlier decision given in the case of O.P. Swarnakar (supra) Hon'ble Justice Sinha was a party and he was also a party in the Page 16 of 25 HC-NIC Page 16 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT subsequent decision in the case of State Bank of Patiala vs. Romesh Chandra Kanoji (Supra). We have gone through both the decisions cited by the learned counsel for the parties. In the case of O.P. Swarnakar (supra), two schemes were taken into consideration; namely, one of the State Bank of India Scheme (for short SBIVRS) and the other of Nationalised Banks. There was a stipulation in SBIVRS that the person who offers for voluntary retirement can only revoke the same within 15 days, whereas in other Banking Scheme the provision was different, and is identical to the one in the case before us. In O.P. Swarnakar (supra) a distinction was made between the two schemes. So far as the scheme of State Bank of India i.e SBIVRS is concerned there the condition of 15 days was mentioned i.e. that incumbent can revoke the offer within 15 days. If the person fails to do so the offer is :4:
complete. But so far as other cases of other banks it is stipulated only that once the incumbent gives an offer of voluntary retirement he will not be permitted to revoke it. Therefore, there was a distinction between the Schemes which has been properly explained by the subsequent decision in para 6 in State Bank of Patiala vs. Romesh Chander Kanoji (Supra) as follows:-
"It is evident from above that in the case of SBIVRS, where there is a specific provision for withdrawal, the employee must exercise his option within the time specified; and in case of Nationalised Banks where there was no provision to withdraw (and in fact the scheme forbade withdrawal), the withdrawal must be effected prior to acceptance by the Bank. Therefore, in terms of the ratio laid down by this Court, the employee is ensured Page 17 of 25 HC-NIC Page 17 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT under SBIVRS the right of withdrawal within the specified period."
6. Therefore, now the position stands settled that in case of a V.R.S. Scheme of State Bank of India where 15 days' time limit for revocation has been laid down in case the incumbent withdraws his offer within 15 days then the offer given by the incumbent cannot be treated against him and it will be deemed that he has revoked his offer. In case of other banks there is a condition that once the offer has been given it shall not be permitted to be revoked but in view of the above decision the incumbent can still withdraw the offer if it has not been accepted by the Management. Now adverting to the :5:
present scheme of the Food Corporation, para 8 clearly stipulates that the incumbent has no right to revoke the same and the Management will decide the same within three months. That means the Management still has three months' time to consider and decide whether to act upon the offer given by the incumbent or not. But if the incumbent revokes his offer before the Corporation accepts it then in that case, the revocation of the offer is complete and the Corporation cannot act upon that offer. In the present Clause there is one more additional factor which is that the Management has to take a decision within three months. Therefore. once the revocation is made by the incumbent before three months then in that case the Corporation cannot act upon the offer of voluntary retirement unless it is accepted prior to its withdrawal. In the present case, it is clear that the incumbent had given an offer for voluntary retirement on the 13.9.2004 and he revoked his offer on 27.9.2007 but the same was Page 18 of 25 HC-NIC Page 18 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT accepted on 9.11.2004 i.e. after the revocation of his offer. In view of the law laid down by this Court in the case of State Bank of Patiala (Supra) the incumbent has already revoked his offer before it could be accepted. Therefore, in this view of :6: the matter, the approach of the High Court appears to be correct and does not require any interference. The revocation made by the incumbent on 27.9.2004 of his offer of retirement cannot be acted upon as he has revoked it before the Corporation could act upon it.
Hence, we are of the opinion, that the view taken by the High Court is correct. Consequently, all the three appeals are dismissed but without any order as to costs."
11. Thus, the Hon'ble Supreme Court has held that before acceptance of the application of voluntary retirement by the authority if the said application is withdrawn by an employee, such an application cannot be accepted by the employer.
12. Learned advocate Mr. Chauhan appearing for the respondent has not disputed the proposition laid down by the Hon'ble Supreme Court. This Court is also of the opinion that the decisions rendered by the Hon'ble Supreme Court are clear that before the application of the employee for voluntary retirement is accepted by the employer if the same has been withdrawn, the employee remains in the service. However, if the decision rendered by the Hon'ble Supreme Court in Page 19 of 25 HC-NIC Page 19 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT the case of Bank of India & Ors. (supra) is considered carefully, the Hon'ble Supreme Court has observed in para 2, 114, 115, 117, 118, 119 and 130 as under:
"2. A common question, as to whether an employee who opts for the voluntary retirement pursuant to or in furtherance of a scheme floated by the Nationalised Banks and the State Bank of India would be precluded from withdrawing the said offer, is involved in this batch of appeals which arise out of the judgments of various High Courts.
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114. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the scheme, in our considered opinion, could not have resiled therefrom.
115. The Scheme is contractual in nature. The contractual right derived by the concerned employees, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.
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117.In Brijendra Nath Bhargava's case, the law is stated in following terms: (SCC pp.461-62, para 10) "It clearly goes to show that if a Page 20 of 25 HC-NIC Page 20 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT party gives up the advantage he could take of a position of law it is not open to him to change and say that he can avail of that ground. In Dawsons Bank Ltd. case their Lordships were considering the question of waiver as a little different from estoppel and they observed as under:
"On the other hand, waiver is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal agrees to waive his principal's rights then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract.
But in the context of the conclusion that we have reached on the basis of circumstances indicated above that it could not be held that the tenant had constructed this dochatti or balcony a wooden piece without the consent express or implied of the landlord, in our opinion, it is not necessary for us to dilate on the question of waiver any further and in this view of the matter we are not referring to the other decisions on the question of waiver."
118. In Halsbury's Laws of England, Vol.16 (Reissue), para 957 at page 844 it is stated:
"On the principle that a person may not approbate and reprobate a special species of estoppel has arisen. The Page 21 of 25 HC-NIC Page 21 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT principle that a person may not approbate and reprobate express two propositions:
(1) That the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile.
(2) That he will be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct, which he has first pursued and with which his subsequent conduct is inconsistent."
119. In American Jurisprudence, 2nd Volume 28, 1966, Page 677-680 it is stated:
"Estoppel by the acceptance of
benefits: Estoppel is frequently
based upon the acceptance and
retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions.
As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance.
This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good Page 22 of 25 HC-NIC Page 22 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT conscience."
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130. For the reasons aforementioned, we direct that:
1. The appeals preferred by the Nationalised Banks arising from the High Courts are dismissed except the cases where the concerned employees have accepted a part of the benefit under the scheme; However, in respect of such of the employees who despite acceptance of a part of the retirement benefit under the scheme had continued under the orders of the High Court and has retired on attaining the age of superannuation, this order shall not apply;
2. The appeals filed by the State Bank of India are allowed;
3. The appeals arising from the judgments of the Uttaranchal High Court are allowed and the judgments of the said High Court are set aside;
4. The appeals arising from the judgments of the Punjab and Haryana High Court in relation to ten writ petitions which were filed by the employees for a direction upon the Bank that the benefits under the scheme be paid to them are set aside and the matters are remitted to the High Court for consideration thereof afresh on merits and in accordance with law;"
13. Thus, if the employee has accepted a part of the benefit under the scheme then it is not open for him to say that his application for voluntary retirement has been wrongly accepted.
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14. In the case of Punjab National Bank (supra), the Hon'ble Supreme Court observed and held in para 16 as under:
"16. We make it clear that the sentence, "accepted a part of benefit under the scheme", appeared in our direction as noticed above, would include the withdrawal of the benefit and utilisation thereof. By no stretch of imagination, unilateral deposit of a part of benefit under the scheme into the bank account, that too after withdrawal of the application, would construe as to have accepted the part of the benefit under the scheme, when the same was neither withdrawn nor utilised by the employee concerned."
15. Thus, in the facts and circumstances of the present case, when the petitioner has accepted an amount of Rs.5,81,202/- from the respondent and when the same has been deposited in his account and part of the amount has been withdrawn and utilized by the petitioner, it is not open for him to contend that now he is ready and willing to deposit the amount with the respondent authority and respondent authority be directed to give him all consequential benefits as if his application for voluntary retirement has not been accepted.
16. In view of the aforesaid discussion, petition fails. Accordingly, the same is Page 24 of 25 HC-NIC Page 24 of 25 Created On Sun Mar 13 23:23:39 IST 2016 C/SCA/2048/1999 JUDGMENT dismissed. Rule is discharged. No order as to cost.
(VIPUL M. PANCHOLI, J.) Jani Page 25 of 25 HC-NIC Page 25 of 25 Created On Sun Mar 13 23:23:39 IST 2016