Delhi High Court
C.S. Sanon, Kalam Singh And Ors. vs Punjab National Bank, Union Of India And ... on 24 July, 2001
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
JUDGMENT Mukundakam Sharma, J.
1.Since all these writ petitions revolve around interpretation of the provisions of the scheme floated by respondent bank called PNB (Employees) Voluntary Retirement Scheme, 2001 (hereinafter referred to as the 'Scheme')read with the Pension Scheme and regulations of the respondent bank called PNB (Employees) Pension Regulations 1995 and effect thereof, I propose to take all these writ petition together and dispose of by this common judgment/order.
2. All the petitioners are employees/officers of the respondent bank namely - Punjab National Bank which is a National Bank and is a 'State' within the meaning of Article 12 of the Constitution of India. Section 19(2)(d) of Banking Companies Acquisition Act, 1970 empowers the Board of Directors of the bank to formulate any scheme regarding appointment, remuneration and other terms and conditions of service of the officers and other employees of the bank after prior permission of the Central Government and in consultation with the Reserve Bank. Exercising the aforesaid powers the Board of Directors of the Punjab National Bank, in its meeting held on 21st and 22nd September, 2000 approved the Voluntary Retirement Scheme called PNB Employees Voluntary Retirement Scheme, 2000. The respondent Bank promulgated the said scheme called PNB (Employees) Voluntary Retirement Scheme, 2000, by an office circular dated 29.9.2000. Some of the relevant provisions to which reference shall have to be made to appreciate the contention raised by the parties, and the decide the writ petition, are extracted below:-
1. OBJECT :
A scheme to adopt measures to have optimum human resources at various levels in keeping with the business strategies, skill profit to achieve balanced age and requirement of the bank.
2. NAME OF THE SCHEME:
The scheme shall be called as PNB EMPLOYEES VOLUNTARY RETIREMENT SCHEME- 2000.
3. DEFINITIONS:
In this scheme, unless the context otherwise requires:-
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3.6 All other words and expressions used in this scheme but not defined, and defined in the rules/regulations governing the service conditions of the officers/ workmen employees shall have the same meaning respectively assigned to them under the said rules/regulations and the service conditions.
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5. ELIGIBILITY:
5.1 All permanent full time employees of the bank will be eligible to seek voluntary retirement under the scheme provided they meet the following eligibility criteria on the date of application:-
a) they have completed 15 years of service;
OR
b) 40 years of age.
5.2 However, the employees falling in the following categories are not eligible to seek voluntary retirement under the scheme:
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e) Highly skilled and qualified employees who have been given the specialised training in the areas of credit, Foreign Exchange, Investment and Information Technology etc. .....
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6. AMOUNT OF EX GRATIA:
An employee seeking voluntary retirement under the scheme will be entitled to the ex gratia amount mentioned below in para (a) or (b), whichever is less:-
a) 60 days salary (pay plus stagnation increments plus special pay plus dearness relief) for each completed year of service;
OR
b) Salary for the number of months service left.
7. OTHER BENEFITS:
An employee seeking voluntary retirement under the scheme will be eligible for the following benefits in addition to the ex gratia amount mentioned in para 6 above of this scheme:-
i) Gratuity as per Payment of Gratuity Act, 1972 or Gratuity payable under the Service Rules as the case may be, as per existing rules;
ii) a)Pension (including commuted value of pension) as per PNB (Employees') Pension Regulations, 1995;
b) Bank's contribution towards PF as per existing rules.
iii) Leave encashment as per existing rules.
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10. GENERAL CONDITIONS:
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10.4 A mere request of an employee seeking voluntary retirement under the Scheme will not take effect until and unless it is accepted in writing by the Competent Authority.
10.5 It will not be open for an employee to withdraw the request made for voluntary under the scheme after having exercised such option.
10.6 The Competent Authority shall have absolute discretion either to accept or reject the request of an employee seeking Voluntary Retirement under the scheme depending upon the retirement of the bank. The reasons for rejection of request of an employees seeking voluntary retirement shall be recorded in writing by the competent authority. Acceptance or otherwise of the request of an employee seeking voluntary retirement will be communicated to him in writing.
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10.14 The vacancy caused by voluntary retirement shall not be filed up by new recruitment.
10.20 The bank reserves the right to withdraw this scheme at any time it thinks fit and its decision in this respect will be final.
Along with the aforesaid scheme the application to be filed by an employee or the officer is appended as annexure 'A'. The said format prescribed by the respondent bank for seeking voluntary retirement is extracted below:-
"SUB : VOLUNTARY RETIREMENT.
I hereby offer to seek voluntary retirement from the services of the Bank in accordance with the terms and conditions stipulated in the PNB Employees Voluntary Retirement Scheme - 2000 circulated vide Personnel Division Circular No. 1755 dated 29.9.2000, which I have carefully read and understood the contents of the same.
2. I accept the terms and conditions stipulated in PNB Employees Voluntary Retirement Scheme - 2000 unconditionally and irrevocably.
3. I furnished the required particulars in the APPENDIX enclosed for consideration of my offer to seek voluntary retirement from the service of the Bank under the above scheme.
Your faithfully, Signature of the Employee."
An appendix is also annexed as Annexure 'A' which is also to be enclosed with the application to be filed by an employee/officer and a certificate is to be given by the person seeking for such voluntary retirement which is prescribed in paragraph 16 as follows:-
16. I hereby certify:-
a) That the information given above is Complete and true;
b) That I hereby offer to seek voluntary retirement from the service of the bank in accordance with the terms and conditions stipulated in PNB Employees Voluntary Retirement Scheme - 2000, which I accept unconditionally and irrevocably as circulated vide PDC No. 1755 dated 29.9.2000.
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3. The respondent bank has also framed Pension Regulations titled PNB Employees Pension Regulations, 1995. Regulations 28 & 29 would be relevant for the purpose of our discussion in the present cases and therefore, they are also extracted herein below:-
28. Superannuation Pension:
Superannuation pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlements.
29. Pension on Voluntary Retirement:
1) On or after the 1st day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service;
Provided that this sub-regulation shall not apply to an employee who is on deputation or on study leave abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year;
Provided further that this sub-regulation shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector under taking or company or institution or body, whether incorporated or not to which he is on deputation at the time of seeking voluntary retirement;
Provided that this sub-regulation shall not apply to an employee who is deemed to have retired in accordance with clause (1) of regulation 2.
2) The notice of voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
3) (a) An employee referred to in sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor;
(b) On receipt of a request under clause (a) , the appointing authority may, subject to the provisions of sub-regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of three months.
4) An employees, who has elected to retire under this regulations and has given necessary notice to that effect to the appointing authority, shall be precluded for withdrawing his notice except with the specific approval of such authority;
Provided that the request for such withdrawal shall be made before the intended date of his retirement.
5) The qualifying service of an employee retiring voluntarily under this regulation shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty-three years and it does not take him beyond the date of superannuation.
6) The pension of an employee retiring under this regulation shall be based on the average emoluments as defined under clause (d) of regulation 2 of these regulations and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension.
4. It is and admitted position between the parties and the counsel appearing for them that the aforesaid scheme is in the nature of administrative policy and does not have any statutory force. The said scheme was circulated by circular dated 29.9.2000 by the bank making the said scheme operative from 1.11.2000 to 31.11.2000. After circulation of the aforesaid scheme amongst the employees and the officers the petitioners exercised their option to go on voluntary retirement and submitted their application in the format prescribed, Along with the appendix. On 19.12.2000 a circular was issued by the respondent bank an information that the bank had taken up the matter with the Indian Banks Association to clarify as to under which regulation of Pension Regulations, 1995 the employees would be eligible for pension, if the employee is a pension optee and is seeking voluntary retirement under the new scheme titled as PNB EMPLOYEES VOLUNTARY RETIREMENT SCHEME - 2000. It was also informed in the aforesaid circular that the Indian Banks' Association, in turn had taken up the matter with Government of India, Ministry of Finance, Banking Division and that pursuant thereto the Indian Banks' Association with the approval of the Government of India vide their letter dated 11.12.2000 had advised all the nationalised banks, who have introduced the voluntary retirement scheme in their respective banks that the employees who are seeking voluntary retirement and are pension optees under Pension Regulations, 1995, will be eligible for pro rata pension for a period of service rendered by them as if they are to retire on attaining the age of superannuation on the date of their release under the new voluntary retirement scheme introduced by the bank. I was also stated that having regard to this the banks have been advised to incorporate the following amendment to Regulation 28 of the Pension Regulations:-
"Superannuation Pension shall be granted to an employee who has retired on his attaining the age of superannuation specified in the Service Regulations or Settlement.
Provided that, pension shall also be granted to an employee who opts to retire before attaining the age of super annuation, but after having served for a minimum period of 15 years in terms of any scheme that may be framed for the purpose by the Bank's Board with the concurrence of the Government."
It was also informed that the bank is taking steps to amend the regulations 28 of the PNB (Employees) Pension Regulations, 1995 in terms of the provisions contained in Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970 pending above amendment to Regulation 28 of the Pension Regulations, 1995, and therefore, it has been decided to allow superannuation pension to those employees who are pension optees with minimum 15 years of service and their offer to seek voluntary retirement under PNB Employees Voluntary Retirement Scheme - 2000 has been accepted. The bank, therefore, in para 5 of the aforesaid communication, advised that all incumbents in charge to ensure:-
a) That the proposal for payment of pension in respect of the above employees (pension optees) are prepared and sent to Pension Fund Department through respective RO/ZO only under Regulation 28 pertaining to superannuation pension.
b) That the employees (pension optees) who are seeking voluntary retirement under PNBEVERS -2000 irrespective of number of years of service they have put in, are eligible for pension as per Regulation 28 read with the amendment referred to above and not under Regulation 29 of Pension Regulations, 1995.
5. All the petitioners exercised their option to go on voluntary retirement by filing applications in the format prescribed Along with the annexure thereto, within the operation of the scheme from 1.11.2000 to 30.11.2000. Some of the petitioners are pension optees whereas the other petitioners are Contributory Provident Fund Optees. However, before the effective date of their voluntary retirement, the petitioners filed applications withdrawing the said request for going on voluntary retirement on grounds stated in the said applications. The pension optees have stated in their application seeking for withdrawal of the applications for voluntary retirement that they are withdrawing their applications on the ground that the respondent bank has brought in a change to the effective terms and conditions of voluntary retirement scheme unilaterally causing prejudice to the interest of the said pension optees. The Contributory Provident Fund optees however, submitted applications withdrawing their applications for voluntary retirement on personal grounds. The respondent bank however, rejected all such applications filed by petitioners seeking for withdrawal of the request to go on voluntary retirement and accepted the request to go on voluntary retirement submitted by petitioners. Some of the petitioners were relieved from their service whereas some of them before they could be relieved approached this court and obtained interim order directing for maintenance of status quo of their service before they could be relieved, by virtue of which they are continuing in service.
6. In the light of the aforesaid factual matrix the writ petitions could be broadly divided into three categories namely - (i) Petitioners who are Contributory Provident Fund optees and have filed applications seeking for withdrawal of their request to go on voluntary retirement viz. C.W.P.s No.646, 950, 582, 991, 1006, 581, 911, 943, 968, 952, 983, 1324, & 1431,/2001; (ii) Petitioners who are pension optees, who have withdrawn their request to go on voluntary retirement in view of the change and alteration in the effective terms and conditions of the scheme which are introduced by the bank after closure of the scheme viz. C.W.P.s No. 409, 984, 886, 945, 1028, 1177, 1318, 1305, 1433, 1696/2001; (iii) Petitioners who stand by their request to go on voluntary retirement pursuant to the aforesaid scheme and in terms of their request claiming that they are entitled to get of benefit of their pension after voluntary retirement in terms of regulation 29 instead of regulation 28 and the proposed amendment thereto viz. C.W.P.s. No. 519, 1024, 1025 & 1317/2001.
7. Counsel appearing for the petitioners submitted that the Scheme-2000 is not statutory and the same has been formulated by the Board of Directors exercising powers vested in it in terms of section 7(2) of the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970. According to them the applications submitted by the petitioners seeking for voluntary retirement under the scheme are also governed by the principles applicable to resignations and the said offer by the petitioners was in the nature of bilateral exercise that its acceptance by the Competent Authority is an essential feature of the scheme and therefore, an offer made by the petitioners to go on voluntary retirement could be revoked by them before its acceptance in terms of the Indian Contract Act, which could not have been curtailed by making a provision like para 10.5 in the scheme which is void being arbitrary and onerous and unconscionable. It was also submitted that clause 10.5 of the scheme could not take away the legal right of the petitioner to withdraw the option exercised by the petitioners and that the said scheme is to be read Along with the statutory regulation namely - PNB (Employees) Pension Regulations, particularly regulation 29, the provisions of which are also applicable to the facts and circumstances of this case. It was submitted by the counsel appearing for the petitioners who are pension optees that in view of the material alterations and changes brought in by the respondent bank subsequent to the closure of the scheme, which are detrimental to the interest of the petitioners prejudicially affecting their benefits doled out under the scheme, the petitioners should have been given an opportunity to exercise their option afresh in view of the substantial alteration in the benefits brought out for the first time after the closure of the scheme and having not done so the petitioners were entitled to withdraw their offers which were given under entirely different circumstances. It was submitted that therefore, such of the petitioners have a vested legal right to withdrawal their offer made in terms of the original scheme dated 29.5.2000. It was also submitted by them that since they had withdrawn their offer before the same were validly accepted by the respondent bank and before the same had become effective the said withdrawal is recognised and valid under the law particularly in absence of any contract between the petitioners and the respondent bank in that regard.
8. While refuting the submissions of the learned counsel appearing for the petitioners, the learned counsel appearing for the respondent bank on the other hand submitted that the aforesaid scheme although is administrative in nature, was a one time limited duration scheme and the petitioners having applied under the aforesaid scheme were not entitled to withdraw the offer in terms of clause 1(a) of the scheme as the option was irrevocable in terms of the threshold contract between the petitioners and the respondent bank. Counsel submitted that the scheme is a self-contained one time package and the same is independently operative having no nexus, relationship and connection with the provisions of regulation 29 of the Pension Regulations, providing far excess benefits than what is contemplated under regulation 29 of the Pension Regulations of the bank. The counsel highlighted that an employees going on voluntary retirement under the said scheme would be receiving about Rs.15,75,000/- as retrial benefits and he would also be at liberty to work elsewhere and earn additionally and therefore, the said employee is getting the wages and remuneration for virtually whole of the time in advance without giving service to the bank. It was also submitted by him that if the aforesaid to go on voluntary retirement is accepted then every employee of the bank could give such an option during the currency of the scheme and then withdraw later on thereby frustrating the very purpose and object of the bank in bringing about the aforesaid scheme. It was also submitted by him that the decision rendered by the Supreme Court in the context of the statutory Service Rules and Regulations would not be applicable to the cases in hand where the terms and conditions of the cases in hand where the terms and conditions of the scheme, which is administrative in nature, are involved for interpretation and not the Statutory Rules like regulation 29 of the Pension Regulations in the instant case. He submitted that the bank had given an offer to the employee and the officers/employees like the petitioners to exercise an option to go on voluntary retirement though an appropriate application in the format prescribed making it clear that the said option once exercised would be irrevocable and as and when the petitioners submit their applications in terms of the said offer a threshold contract came into existence, the effect of which is that the said option exercised, by the petitioners cannot be withdrawn subsequently, the option being irrevocable. Counsel submitted that the Supreme Court has time and again declared that an application seeking for voluntary retirement could be withdrawn before the effective date provided there is no bar for the same constitutionally or contractually. Counsel submitted that there is a contractual prohibition in the present case of withdrawal of an option exercised by an optee and therefore, no withdrawal of option was permissible. It was also submitted by him t hat clause 10.5 cannot be said to be void or unconscionable or arbitrary when the same is read in the context of the objects and reasons for which the said scheme was introduced by the bank and in support of his contention he drew my attention to the averments made in the additional affidavit filed by the bank. He has particularly drawn my attention to the contents of paragraph 4 of the said affidavit wherein it is stated that pursuant to the Government of India, Ministry of Finance, Banking Division advising all Nationalised banks under letter dated 22.5.2000 to carry out detailed manpower planning in order to adopt measures to have optimum human resources at various levels in keeping with the business strategies and requirements of each bank while observing that different committees have opined that most of the banks have minimum 25% employees manpower as surplus, the aforesaid scheme was introduced by the bank.
9. The decision to introduce the said scheme was also in the context of a report submitted by a Committee constituted by the Government of India, who had proposed two schemes namely- Sabbatical Leave and Voluntary Retirement Scheme that would assist the banks in their effort to optimise their human resource and achieve a balanced age and skills profile in keeping with their business strategies. It was also submitted by him that so far the issue with regard to applicability of regulation 28 and/or is 29 is concerned the same is not yet final as the matter is referred by the Association of the Banks.
10. In support of their contentions counsel for the parties referred to and relied upon various decisions of the Supreme Court and different High Court to which reference is being made hereafter.
11. The earliest decision of the Supreme Court to which my attention was drawn to is the decision in Jai Ram Vs. Union of India, . In the said case the plaintiff entered the service of the Government as a clerk in the Central Research Institute, Kasauli on 7.5.1912. Rule 56(b)(1) of Chapter IX of the Fundamental Rules which regulate the civil services provides that a ministerial servant may be required to retire at the age of 55 but should ordinarily be retained in service if he continues efficient to be efficient, till the age of 60 years. The plaintiff was to complete 55 years on 26.11.1946. On 7.5.1945 he wrote a letter to the Director of the Institute seeking permission to retire. The Director refused permission on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter dated 30.5.1945 and also asked for leave preparatory to retirement. The said request was also declined. Two subsequent requests to the same effect also met with the same fate. On 28.5.1946 the plaintiff made a 4th application repeating his request and this time the Director of the Institute sanctioned the leave preparatory to retirement. However, just 10 days before the period of leave was due to expire the plaintiff on 16.4.1957 sent an application to the Director stating that he had not retired and asked for permission to resume his duties immediately, in reply to which the Director informed him that he could not be permitted to resume his duties as he had already retired having proceeded on leave preparatory to retirement. In the context of the aforesaid facts the Supreme Court, in the aforesaid decision made the following crucial observations:-
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so as long as he continues in service and not after it has terminated."
12. The aforesaid rule enunciated in the case of Jai Ram (supra) was reiterated by the Supreme Court in the case of Raj Kumar Vs. Union of India, in the following words:-
"Where a public servant has invited by has letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."
13. In a subsequent decision of the Supreme Court in Union of India Vs. Gopal Chandra Misra and Ors.; , the Supreme Court enunciated the law as follows:-
"It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resigner. This general rule is equally applicable to Government Servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office,normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in present the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But if he by such writing, chooses to resign from a future date, the acts of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal."
14. Reference could also be made to the decision of the Supreme Court in Bal Ram Gupta v. Union of India and Another; reported in 1987 (Supp.) Supreme Court Cases, 228. In the said case, it was held by the Supreme Court that in the facts of the said case there was no valid reason for withholding the permission by the respondent as the retirement form the Government service was to take effect at a subsequent date prospectively and that withdrawal was wrong before that date and therefore the appellant had locus poenitentiae. It was held hat the normal rule which prevails in certain cases, that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the government servant cannot withdraw under rule 48(a) of the Pension Rules except with approval of such authority, who has to exercise the said discretion reasonably and rationally.
15. Reliance was also placed on the decision of the Supreme Court in Union of India and another v. Wing Commander T. Parthasarathy, reported in JT 2000(Suppl.2) SC 490. In the said judgment the Supreme Court extensively quoted paragraph 51 of the judgment rendered by the Constitution Bench of the Supreme Court in the case of Gopal Chandra Misra (supra) . Since the findings recorded by the Supreme Court in paragraphs 8 & 9 thereof are found to be relevant in the context of the present case, I extract below the said paragraphs 8 & 9 herein below for proper appreciation of the contentions raised by the parties:-
"8 So far as the case in hand is concerned, nothing in the form of any statutory rule or any provision of any Act has bene brought to our notice which could be said to impede or deny this right of the appellants. On the other hand, not only the acceptance of the request by the Headquarters, the appropriate authority, was said to have been made only on 20.2.1986, a day after the respondent withdrew his request for premature retirement but even such acceptance in this case was to be effective from a future date, namely- 31.8.1986. Consequently, it could not be legitimately contended by the appellants that there was any cessation of the relationship of master and servant between the Department and the respondent has a right and was entitled to withdraw or revoke his request earlier made, before it ever really and effectively became effective.
9. The reliance placed upon the so called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for a premature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for premature retirement before it ever became operative and effective and effected termination of his status and relation with the Department. When the legal position is that much clear, it would be futile for the appellants to base their rights on some policy decision of the Department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of a substantive right of a person can be denied except on the basis of any statutory provision or rule or regulation. There being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands. Even that apart, the reasoning of the High Court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so called policy decision also cannot be said to suffer any conformity in law, to warrant our interference."
16. There is another recent decision of the Supreme Court on similar issue which is the case of Shambhu Murari Sinha v. Project and Development India and another; . The question that arose for consideration in the said case was whether it is open to a person having exercised option for voluntary retirement to withdraw the said offer after it is acceptance but before it is made effective. It was held by the Supreme Court in the said decision that the resignation in spite of its acceptance can be withdrawn before the effective date and in arriving at the aforesaid conclusion the Supreme Court relied upon the earlier decisions of the Supreme Court in Bal Ram Gupta (supra), J.N. Srivastava v. Union of India, and Power Finance Corporation Ltd. v. Pramod Kumar Bhatia, 1997 II LLJ 819 (SC).
17. The following propositions of law, therefore, emerge from the aforesaid decisions of the Supreme Court:
(i) That the principles of resignation also apply to a case of voluntary retirement;
(ii) Such resignation/option to go on voluntary retirement in spite of its acceptance could be withdrawn before the effective date;
(iii) A prospective resignation can be withdrawn at any time before it becomes effective, in absence of a legal, contractual or constitutional bar for such withdrawal;
(iv) Withdrawal of a prospective resignation where there is no legal, contractual or constitutional bar would become effective when it operates to terminate the employment or the office tenure of the resigner.
18. There could be no dispute with regard to the aforesaid legal propositions finally settled by the Supreme Court but in order arrive at a just and appropriate conclusion in the present writ petitions it requires further investigation into the legal propositions as to whether there is any legal, constitutional or contractual impediment/bar for withdrawal of the option exercised for going on voluntary retirement. Therefore, I embark upon investigation into such legal position and propositions in the context of the facts of the present cases.
19. In all the present cases the options exercised by the petitioners to go on voluntary retirement were withdrawn by the petitioners before the effective date i.e. before it operated to terminate the employment between the petitioners and the Bank. In terms of the legal principles enunciated above it is within the power and jurisdiction of the petitioners to withdraw or to revoke such options. The said legal position even can not be disputed by the respondents. The only hurdle or prohibition sought to be put forth by the respondents against such withdrawal in these cases was that the petitioners were bound by the declarations made at the time of exercising their option to go on voluntary retirement, which according to the respondent bank gave rise to a threshold contract and therefore, there was a contractual bar for withdrawing such options which is also recognised in the Constitution Bench decision of the Supreme Court in Gopal Chandra Mishra and others (supra). It would, therefore, be required to examine whether there was in fact any such contractual bar on withdrawal of the option as sought to be put for the by the respondents. It is true that while exercising the options and in terms of the requirement as stipulated in the scheme and the offer made by the respondents declarations were given by the petitioners that they are bound by the terms and conditions of the scheme for voluntary retirement one of which was that the options once exercised cannot be withdrawn at a later stage.
20. Counsel for the respondents submitted that the submission of the option together with the declaration gave rise to concluded threshold contracts and therefore, the contractual bar on withdrawal of the option for voluntary retirement would apply.
21. The terms and conditions in the scheme were merely terms and conditions of invitation to offer. The petitioners in terms of the said condition made their offer which could be accepted by the respondents as they were without any change or alteration so as to make it a concluded contract. As and when the said offer is accepted then only a concluded contract could be said to have come into existence. However, even assuming that the contention of the counsel appearing for the respondent is correct and the declarations submitted by the petitioners that they would not withdraw the options exercised by them, gave rise to contracts, could it be said that such contracts are valid in the eyes of law? In my considered opinion the decision of the Supreme Court in Wing Commander T. Parthasarathy (supra) throws light in that regard. In the said case also the Supreme Court was concerned withe a similar certificate given by the employee to the effect that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for premature retirement. The said facts were noticed by the Supreme Court and in the context thereof it was conclusively held that the reliance placed upon the said policy decision which obligated upon the respondent to furnish a certificate to the extent that he was fully aware of the fact that he could not later seek for cancellation of the application once made for premature retirement would not be destructive of the right of the respondent,in law, to withdraw his request for premature retirement before it ever became operative and effective and effected termination of his status and relation with the department. According to the Supreme Court the right of the respondent to withdraw his request for premature retirement before it ever became operative and effective is a substantive right of a person which cannot be deprived and denied except on the basis of any statutory provision or rule or regulation. It was also held by the Supreme Court that it would be futile for the employer to base their rights on some policy decision of the department or a mere certificate of the employee being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. The said law was laid down by the Supreme Court almost in a similar case as that of the present petitioners. There counsel for the respondents sought to distinguish this case on the ground that the employer therein was a Government department whereas in the present cases the employer in a Bank, the said distinction sought to be brought about by the counsel appearing for the respondents, in my considered opinion is misconceived for whatever was laid down by the Supreme Court as discussed in the aforesaid paragraphs is the general principle of law relating to the substantive right of an employee to withdraw his resignation/option and request to go on voluntary retirement. The said law is the law of the land. The said principle is equally applicable to Government servants, Constitutional functionaries as also to all other agencies and instrumentalities of the Government or to persons working in a State within the meaning of Article 12 of the Constitution of India. No distinction could be made with regard to the applicability of the said general principle of law in respect of the employees/officers of a Bank which is a State within the meaning of Article 12 of the Constitution of India.
21. This issue could also be looked into from another angle. Section 23 of the Contract Act provides that the consideration or object of agreement is lawful unless the same is opposed to public policy. The aforesaid section further provides that the agreement of which the object or consideration is unlawful is void. It is also provided that the consideration or object of an agreement if is of such a nature that if permitted it would defeat the provisions of any law, the same is not lawful. Section 24 of the said Act also provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object is unlawful the agreement is void. The agreement is not however, always void in its entirety for it is well settled that if several distinct promises are made for one and the same lawful consideration, and one or more of them be such as the law will not enforce, that will not of itself prevent the rest from being enforceable. This is what also laid down by the Supreme Court in Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, . In the said decision the Supreme Court referred to the general rule as stated by Willes, J. in Pickering v. Ilfracombe Ry. Co. (1868) 3 CP 235, to the effect:- "the general rule is that, where you cannot server the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good."
22. The declaration that was to be furnished by the petitioners in terms of the scheme was to the effect that the options once exercised shall not be withdrawn at any subsequent stage. Even if it is assumed as sought to be submitted by the, counsel appearing for the respondents that upon giving of such declaration or a certificate by the petitioners a threshold contract had come into operation, the said contract to the aforesaid extent, that the option once exercised cannot be withdrawn at a later stage, would be hit by the provisions of section 23, for such a declaration called for by the scheme defeats the law laid down by the Supreme Court in that regard, which is the law of the land, and therefore, such declaration/certificate could not have given rise to an effective and valid and valid contract even if it is assumed that there was a threshold contract. The aforesaid declaration/certificate would not and could not amount to deprivation of a substantive right of the petitioners. The inherent right of the petitioners to withdraw their request for voluntary retirement before it ever became operative and effective could not have been denied by the respondents save and except in accordance with law or on the basis of any statutory provision or rule or regulation. In that view of the matter the respondents cannot effectively take cover under the declarations given by the petitioners to deny the rights to the petitioners to withdrawn their option to go on voluntary retirement before they were effective and made operative. On the aforesaid reasons, all the writ petitions (being 646, 950, 582, 991, 1006, 581, 911, 943, 968, 952, 983, 1324 & 1431/2001) except four writ petitioner shall have to be allowed holding that the petitioners were entitled to withdraw their options to go on voluntary retirement before it became operative and effective and the said applications should have been accepted by the respondents since the same were filed by all the petitioners before the options were made effective and operative.
23. However, so far as pension optees are concerned they have an additional ground which was urged before me and which in my considered opinion has strong force. In the scheme it was specifically stated that an employee seeking for voluntary retirement under the scheme would be eligible for the benefit of pension (including commuted value of pension) as per PNB (Employees) Pension Regulations, 1995. The petitioners submitted their options on the basis of the aforesaid offer of the respondents that the pension optees would be entitled to aforesaid pension benefits i.e. according to the provisions of Regulation 29 of the Pension Regulation. However, after the circulation of the aforesaid scheme amongst the employees, and after the petitioners had exercised their option to go on voluntary retirement in accordance with the terms and conditions of the scheme and submitted their application in the format prescribed Along with the appendix and after the said scheme was closed the respondents circulated a circular on 19.12.2000. giving information that the bank had taken up the matter with the Indian Banks Association to clarify as to under which regulation of Pension Regulations, 1995 the employees would be eligible for pension if the employee is a pension optee and seeking voluntary retirement under the new scheme. The bank further informed that in the light of the advice received the bank had proposed to incorporate certain amendments to regulation 28 of the Pension Regulations whereby it would be provided that the pension optees would be eligible for pro rata pension for a period of service rendered by them as if they are to retire on attaining the age of superannuation on the date of their release under the new voluntary retirement scheme introduced by the bank. The said decision of the bank has materially changed and altered the earlier terms and conditions as spelt out in the scheme. Since there was a material changes and alteration in the terms and conditions of the scheme the offers of the petitioners as it stood were not accepted by the respondents. On the other hand a material and substantive alteration and change was brought in respect of terms and conditions of the scheme and after the petitioners had exercised their options and without obtaining any approval/consent of the petitioners. Since no consent/approval of the petitioners (pension optees) were obtained by the respondents prior to the acceptance of the option to go on voluntary retirement the said acceptance of the request of the petitioners to go on voluntary retirement cannot be said to be legal and valid. Therefore, on that count also the acceptance of the options of the petitioners who were pension optees to go on voluntary retirement are liable to be set aside and quashed.
24. So far the petitioners in C.W.P. 519, 1024, 1025 and 1317/2001, are concerned, their counsel had taken a definite stand before me during the course of arguments that the said petitioners stand by their request to go on voluntary retirement pursuant to the aforesaid scheme and in terms of their request. It was, however, stated that the said four petitioners claim that they are entitled to the benefit of their pension in terms of regulation 29 instead of regulation 28 and the proposed amendment thereto. As the proposed amendment has not materialised as of date and the same is pending for consideration before the Appropriate authority, in my considered opinion, these writ petitions cannot be decided at this stage and are left un-decided to be taken up for arguments at a later stage. The said petitions shall remain adjourned sine die with liberty to the counsel appearing for the parties to get the same revived by making a mention of the same once the decision is taken by the appropriate authority on the reference made by the Bank.
25. Consequently all the writ petitions stand allowed save and except the four writ petitions (being C.W.P.) 519, 1024 1025 and 1317/2001) and the impugned orders accepting the option for voluntary retirement stand quashed. The petitioners shall be reinstated in service with all consequential benefits. It is however, ordered that those of the petitioners who had received the benefits under the scheme including the ex-gratia payment whether with or without protest shall return the entire amount received by them with interest @ 9% per annum form the date of receipt of the said amount till the date of return. On return of the aforesaid amounts the consequential benefits i.e. payment of arrear salary and allowance from the date of their release to the date of reinstatement shall be given to the petitioners by the respondents. All the petitioners shall also have continuity of service and the interregnum period shall be regularised in accordance with law. In the circumstances, however, there will be no order as to costs.