Karnataka High Court
Nagesh B. Prabhu vs Syndicate Bank, Rep. By Its General ... on 16 June, 2003
Equivalent citations: ILR2003KAR2667, 2003(6)KARLJ30, (2004)IILLJ83KANT, 2003 LAB. I. C. 2378, 2003 AIR - KANT. H. C. R. 1795, (2003) 4 SCT 105, (2003) 4 LAB LN 736, (2004) 2 SERVLR 412, (2003) 6 KANT LJ 30, (2004) 2 LABLJ 83, (2003) 3 CURLR 862
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER Dattu, J.
1. An employee officer of the respondent Syndicate Bank is before this Court, interalia requesting this Court to quash the orders made by the respondent Bank dated 17.12.1999, 30.12.1999 and 1.1.2000 respectively.
2. Facts in nutshell are Petitioner had joined the services of the respondent Bank on 16.7.1970 as a Clerk. While in service, he was initially promoted as an Officer in Junior Management Grade Scale-I w.e.f. 25.5.1974. He was further promoted as an officer in Middle Management Grade Scale II w.e.f. 1.1.1982 and then to the middle Management Grade Scale III w.e.f. 1.10.1990. He was further promoted as a Senior Management Grade Scale IV Officer w.e.f. 16.5.1998.
3. On promotion to Grade Scale IV Officer, he was transferred to Hampanakatta, Mangalore Branch of the respondent Bank as its Chief Manager. He reported for duty at Hampanakatta, Mangalore Branch on 3.6.1988. While he was working as Chief Manager at the aforesaid branch, he was transferred to Ludhiana Branch of the respondent Bank by their official memorandum dated 24.11.1999.
4. For the reasons mentioned in the notice of voluntary retirement dated 14.12.1999, petitioner requested the respondent Bank to permit him to retire from service voluntarily w.e.f. 1.1.2000. The reason for such request is mentioned in the aforesaid notice for the purpose of disposal of this case, the said letter requires to be noticed. Therefore, it is extracted and it reads as under.
"I intend to get relieved from the services of the Bank under the voluntary retirement scheme (VRS) I have carefully read the relevant provisions and terms/conditions of VRS communicated vide HO circular No. 226/95/BC dated 4.11.1995 and various other circulars issued from time to time. Please consider my request for relieving me from the services of the Bank under VRS and oblige in this connection, I wish to submit as follows.
1. This is an unconditional request to you for accepting my application under VRS. I confirm that I had opted for pension and I am eligible to apply under VRS .
2. I am seeking retirement under VRS, due to problems arising out of terminal illness of my father, indifferent health of my wife and management of my children's education my son has recently joined MBBS course of KSHEMA here on a merit seat and my daughter is in crucial SSLC.
3. I may be relieved from the services of the Bank on 1.1.2000. Until then I will be on PL for which I have applied.
4. The details of my direct and indirect liabilities are as follows:
SI. No. Branch A/c. No. Amt O/s Remarks
1.
Pune Karve Road Housing Loan Approx. Rs. 90,000/-(inclusive of Funded int.)
5. I hereby authorize SYNDICATE BANK to adjust my terminal benefits payable towards all of my direct and indirect liabilities.
6. I am aware that I should separately apply to the Competent Authorities for various terminal benefits like leave, encashment, pension commutation etc.
7. I undertake to surrender the Bank's property like Power of Attorney, identity Card, Vehicle, Books, Furniture, etc, before getting relieved from the Bank's service.
8. I am aware that the Bank may initiate action against me for any act of commissions/omissions, which may come to light at a later date and also recover any financial loss which may arise on that account, from my terminal benefits, including the pension payable in future.
9. Since I stand already relieved from our Hampankatta Mangalore Branch but yet to join duty at our Ludhiana Branch, I have deemed it appropriate to forward this request through our Mangalore Regional Office Please accept the same my retirement benefits may please be disbursed through our Hampankatta Mangalore Branch.
I sincerely thank SYNDICATE BANK for all the opportunities provided to me during my career".
5. The respondent Bank by their communication dated 17.12.1999 has accepted the request made by the petitioner and has permitted the petitioner to retire from service voluntarily w.e.f. 1.1.2000 in their communication, they have also indicated that he would be relieved from service on 1.1.2000, waiving the short fall in the notice period.
6. Thereafter, petitioner has submitted a representation dated 24/ 28.12.1999, requesting the authorities of the respondent Bank to permit him to withdraw his earlier notice of voluntary retirement from service and a further request is made to permit him to continue in the service of the Bank. The said representation is acknowledged by the respondent Bank on 29.12.1999. On the same day, petitioner had also submitted one more representation pointing out the reasons for his request to permit him to withdraw his earlier notice of voluntary retirement from service. The said letter was also served on the competent authorities of the respondent Bank.
6. For the reasons stated in their impugned communication dated 30.1.1999, the respondent Bank has rejected the request of the petitioner in that, they have stated as under.
"We regret our inability to accede to your request for withdrawal of the application for voluntary retirement as alternate postings have already been made by the bank and the decision conveyed vide our letter No. Ho PD PAD DGM PNL 0087 20481 00434 dated 17.12.1999 stands."
7. By yet another communication dated 1.1.2000, they had informed the petitioner that he is relieved from the services of the Bank on 1.1.2000 after office hours on voluntary retirement in terms of their earlier letter dated 17.12.1999.
8. Aggrieved by these communications, petitioner is before this Court.
9. Learned Counsel appearing for the petitioner Sri Rajagopal would submit, that the notice of voluntary retirement from service can be withdrawn before it become effective. The notice of voluntary retirement submitted even as per the order of acceptance passed by the Bank would have been become effective only at the closing hours on 1st January, 2000 and the petitioner has withdrawn the notice of voluntary retirement much earlier to its becoming effective. Therefore the rejection of the request made by the petitioner by the respondent Bank is not only contrary to the pension Regulations of the Bank but also violative of Articles 14, 16(1) and 19(1)(g) of the Constitution.
10. Respondent Bank has filed its detailed statement of objections in that, they deny each one of the assertions and allegations made by the petitioner in the memorandum of Writ Petition. They further state that since respondent Bank has already made alternate arrangements by posting an officer to manage the affairs of Ludhiana Branch, they were justified in rejecting the request made by the petitioner for withdrawal of his earlier notice of voluntary retirement from service.
11. During the pendency of the proceedings before this Court, petitioner has filed his additional affidavit in that, he states as under:
"4. By an order dated 30.12.1999 (Annexure J), the Bank rejected my request for withdrawal and the reason given for the order of the Bank is "as alternate postings have already been made by the Bank." This statement of the Bank in the order dated 30.12.1999 is false I bonafide learn that as on 30.12.1999 no postings had been made by the Bank to Ludhiana in my place. For the first time, in my place, one Sri H. Surendra Shenoy was transferred to Ludhiana Branch from the Regional Office of the Bank at Calcutta by order bearing No. PD PAD DGM 2242/0087 dated 28.1.2000 it is further submitted that Sri Surendra Shenoy who was an officer in Scale IV did not join at Ludhiana and ultimately he was transferred to Regional Office, Ahmedabad and Scale III Officer was posted to head Ludhiana Branch during middle of the year 2000."
12. The respondent Bank has also filed its additional statement of objections to the additional affidavit filed by the petitioner in that, they state as under:
"5. Having regard to the fact that petitioner had sought voluntary retirement and there was no point in petitioner reporting for duty at Ludhiana and getting relieved from Ludhiana Branch. The respondent by memorandum dated 24.11.1999 modified the order of transfer and advised petitioner to report to duty at Regional office, Mangalore, on expiry of the leave and get himself relieved from 1.1.2000 on the day he sought to be relieved by his application after waiving the short fall in application as per his request. After petitioner's transfer from Hampanakatta to Ludhiana Branch, the Bank posted one Sri T. Ashok Shenoy to Hampanakatta Branch to work there as Chief Manager until further order by Memorandum dated 24.11.1999. During the time when petitioner was on leave, Sri T. Ashok Shenoy, Chief Manager, Regional Office, Mangalore, was holding concurrent charge of Hempankatta, Mangalore Branch from 22.11.1999 during the absence of the petitioner on leave. After Sri Jagannatha Sherigar was posted to Hampanakatta Branch, Sri T. Ashok Shenoy, Chief Manager, Regional Office, Mangalore, handed over charge to him vide memorandum dated 24.11.1999.
6. In the place which was to be occupied by the petitioner at Ludhiana Branch, one Sri H.S. Shenoy, Chief Manager, Regional Office, Kolkata, was transferred to Ludhiana Branch as Chief Manager by memorandum dated 28.1.2000 however, transfer order of Sri H.S. Shenoy was modified and he was posted to ZO, Ahmedabad, on 29.2.2001. Sri Ashok Kumar Madan, Senior Branch Manager, who was working in the Ludhiana Branch since 17.11.1999 continued to head the branch upto 13.5.2000 Thereafter, Sri Rakesh Kumar Jalota, Senior Branch Manager has been heading the branch with effect from 22.5.2000."
13. Sri Rajagopal, learned Counsel appearing for the petitioner in support of his contentions, has relied upon the observations made by the Apex Court in the case of BALARAM GUPTA v. UNION OF INDIA AND ANR., the observations made by the Apex Court in the case of SHAMBHU MURARI SINHA v. PROJECT AND DEVELOPMENT INDIA AND ANR., 2000 SCC (L & S) 741 and the observations made this Court in H.L NAGARAJU v. DEPUTY GENERAL MANAGER, PERSONNEL DEPARTMENT (HRD) VIJAYA BANK, ILR 1999 KAR 1197.
14. In Re BALARAM GUPTA VS UNION OF INDIA (supra), the Apex Court was pleased to observe as under.
"In this case the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement.
We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation we have not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modem age we should not put embargo upon people's choice or freedom. If however, the administration had made advancements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that anv administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant."
(underlining is by me)
15. In Re SHAMBHU MURARI SINHA v. PROJECT AND DEVELOPMENT INDIA AND ANR. (supra), the Apex Court was pleased to observe as under.
5. From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by the respondent Management by their letter dated 30.7.1997, the appellant was not relieved from service and he was allowed to continue in service till 26.9.1997, which, for all practical purposes, would be the "effective date" as it was on this date that he was relieved from service in the meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary retirement vide his letter dated 7.8.1997. The question which therefore, arises in this appeal is whether it is open to a person having exercised option of voluntary retirement to withdraw the said offer alter its acceptance but before it is made effective. The question is squarely answered by three decisions, namely, Balram Gupta v Union of India, J.N. Srivastava v. Union of India and Power Finance Corpn. Ltd v Pramod Kumar Bhatia in which it was held that the resignation, inspite of its acceptance, can be withdrawn before the "effective date."
16. In Re H.L. NAGARAJU v. DEPUTY GENERAL MANAGER, PERSONNEL DEPARTMENT (HRD) VIJAYA BANK (supra), this Court was pleased to observe as under.
"Two Employees who had opted to retire from service subsequently changed their mind and withdrew the request to retire. The Competent Authority under the Regulations considered the request for withdrawal and rejected their request to withdraw and permitted them to retire Employees approached the High Court questioning the validity of the rejection to withdrawal of the Notice of Retirement given by them -
HELD: High Court found that there was no good reason for the Competent Authority to refuse withdrawal of Notice of Retirement as pointed out in BALARAM GUPTA v. UNION OF INDIA AND ANR. ."
17. Per contra Sri Ramdas, learned Senior Counsel appearing for the respondent Bank would submit, that, once the notice of voluntary retirement from service is accepted by the respondent Bank, officer employee of the Bank for no reasons can seek for withdrawal of the same. In support of his contention, the learned Senior Counsel also relies upon certain observations made by this Court in BALARAM GUPTA v. UNION OF INDIA, and the observations made by the Supreme Court in VICE CHAIRMAN AND MANAGING DIRECTOR APSIDC LTD, AND ANR. v. R. VARAPRASAD AND ORS., C.A. No. 5638/1999 dd 22.5.2003 and the observations made by the Apex Court in NORTH ZONE CULTURAL CENTRE AND ANR. v. VEDPATHI DINESH KUMAR, 2003 LLR 583 and the observations made by the Apex Court in the case of P. LAL v. UNION OF INDIA AND ORS., 2003 (II) LLJ 164.
18. In Balaram Gupta's case, the Supreme Court is of the view that the normal rule is to permit a person to withdraw his resignation or request for voluntary retirement from service before the "effective date." The Court has made some exception for refusing or rejecting the request for withdrawal before the effective date by the employer viz, if the administration has made arrangement acting on his resignation or letter of retirement to make other employee available for the job.
19. In Re VICE CHAIRMAN AND MANAGING DIRECTOR. The Apex Court was considering the scheme framed by the State of Andhra Pradesh to be applied in the Government Companies and Corporations with regard to the voluntary retirement from service. One of the clauses in the scheme was that the Voluntary Retirement Scheme option exercised is final as far as the employee is concerned and for no reasons the employee can withdraw his request for voluntary retirement from service.
20. In Re NORTH ZONE CULTURAL CENTRE v. VEDAPATHI DINESH KUMAR's. The employee officer had requested the employer to accept his letter of resignation with immediate effect. Keeping in view the request so made, the employer had accepted the resignation of the applicant/officer. But, the acceptance was communicated a little later. Keeping in view the facts and circumstances of the case, the Court was pleased to observe that once the resignation is accepted for no reason it can be withdrawn by the employee.
21. To the same effect is the observations made by the Apex Court in the case of P. LAL v. UNION OF INDIA AND ORS.
22. The parties to the lis are governed by the provisions of Syndicate Bank (Employees) Pension Regulations, 1995 (Pension Regulations' for short) Regulation 29 of the Pension Regulations is relevant for the purpose of this case. Therefore it is extracted and it reads as under.
"PENSION ON VOLUNTARY RETIREMENT (1) On or after 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 an 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 undertaking 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 flat 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 receipt 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 employee who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be precluded from 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 extend 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 national fixation of pay for the purpose of calculating his pension."
23. Sub-regulation (4) of Regulation 29 of the Pension Regulations envisages that an employee, who has elected to retire under the Regulation and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority. Proviso appended to the sub-regulation mandates that the employee officer must make a request for such withdrawal before the intended date of his retirement or to put it otherwise, an employee officer cannot withdraw his notice of retirement from service without the specific approval of the authority and such request requires to be made before his jural relationship comes to an end.
24. Keeping in view the possible construction that could be placed on sub-regulation (4) of Regulation 29 of the Pension Regulations, let me notice the fact situation. It is not in dispute that the petitioner by his request letter dated 14.12.1999 had requested the respondent Bank to permit him to retire from service voluntarily He had also stated in the said letter that he should be relieved from the services of the Bank w.e.f. 1.1.2000. The said request of the petitioner had been accepted by the respondent Bank by their communication dated 17.12.1999 and in that, they had also stated that though petitioner's letter of voluntary retirement from service is accepted by the respondent Bank on 17.12.1999 itself, he would be relieved from service only on 1.1.2000, which for all practical purposes would be "effective date." Even before he was relieved from service, petitioner for the reasons stated by him in his communication dated 24/28.12.1999, withdraws his earlier request made for voluntary retirement from service. That request is rejected by the respondent Bank by their communication dated 30.12.1999. The first question that requires to be considered and answered by this Court is, whether it is open to a person having exercised his option for voluntary retirement, to withdraw the said offer after its acceptance but before it was made effective ? The question is squarely covered by the decisions of the Apex Court in the case of BALARAM GUPTA v. UNION OF INDIA, J.N. SRIVASTAVA v. UNION OF INDIA, , POWER FINANCE CORPORATION v. PRAMOD KUMAR BHATIA., In these decisions, it is held by the Apex Court that the request for voluntary retirement from service, inspite of its acceptance can be withdrawn before the effective date.
25. Under Regulation 294 of the Pension Regulations, an employee/officer, who has opted to retire from service voluntarily under the Pension Regulations is prevented from withdrawing his notice of retirement from service except with the specific approval of the competent authority and the request for withdrawal requires to be made before the effective date of his retirement. That means, the Bank has the discretion either to accept or reject the request of an employee/officer, seeking permission to withdraw the notice of voluntary retirement from service. The bank being an authority coming within the meaning of Article 12 of the Constitution is expected to act fairly and reasonably in exercise of its discretion while considering the request by an employee/officer to withdraw his notice of retirement from service. In the instant case, petitioner files a representation before the competent authority of the respondent Bank to permit him to withdraw his notice of voluntary retirement from service before the effective date namely, 1st day of January, 2000. That representation is acknowledged by the respondent Bank. The competent authority refuses the request made by the petitioner only on the ground that the Bank has already made alternate postings and therefore, their earlier decision conveyed in their communication dated 17.12.1999 stands. Two things require to be considered at this stage. Firstly, whether the reasons assigned by the Bank to reject the reasonable request of the petitioner is justified? and secondly, whether the Bank has really made any alternate postings as stated by them in their impugned communication ? As stated by me earlier, the competent authority of the Bank is expected to act fairly and judiciously in exercise of his discretion and he cannot abdicate his duty to act reasonably to match the "game plan" of the petitioner. The respondent bank could have rejected the request of the petitioner, if they really had posted a person to work as a Chief Manager at Ludhiana Branch, where petitioner was transferred and posted just before he tendered his notice of retirement from service, but it has come on record that one Mr. Shenoy was posted to that branch only on 28.1.2000 much later to the rejection of the request of the petitioner for withdrawal of his notice of retirement. Even otherwise also, petitioner's offer to voluntary retirement from service and withdrawal of the same happened in quick succession and therefore, it cannot be said that any administrative set up or arrangement was effected in any manner whatsoever. Therefore, the reason projected by the Bank in their impugned communication is not only arbitrary but also contrary to the facts, which have come on record by way of affidavits by both the parties.
26. In view of the above, it is difficult to sustain the impugned orders made by the respondent Bank dated 17.12.1999, 30.12.1999 and 1.1.2000 respectively. Therefore, the same requires to be set aside by this Court.
27. In the result, the following.
ORDER I. Writ petition is allowed. Rule made absolute.
II. The impugned orders made by the respondent Bank dated 17.12.1999, 30.12.1999 and 1.1.2000 respectively are set aside.
III. The respondent Bank is directed to reinstate the petitioner into service forthwith.
IV. It is declared that the petitioner is entitled to monetary and service benefits from the date of the impugned communication till the date of reinstatement into service. Ordered accordingly