Karnataka High Court
Jayaprakash Shetty vs Union Of India And Ors. on 16 September, 2009
Author: Aravind Kumar
Bench: Aravind Kumar
f"«"\
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§"'-~.fi
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 14TH /16TH DAY OF SEPFED/EB*E:f§,;"'2009
BEFORE T' V' % M V' &
THE I-ION'BLE MR. JUSTICE
WRIT PETITION No. 1528 4 ,
BETWEEN Vj 1 V' % V
Sri.JAYAPRAKASH -
Son of Sri.Gopa}a Shetty, ; A
Aged about 41 years, T ' "
Staff Code No.21 0086; --
Working as;-C}er:'k, _ __ --.«
Vijaya Bank, E?ié1ale,:' _
South Kaodagu', V.
.. Petitioner
(By Sri. for M / s Subba Rao 8: company
Advocates)'-e - vv ' _ 2 " ,
'India,
R-epresent~ed by the Secretary to
Government,
M1n1e:t1*y of Fmance,
x New Delhi.
. Bank.
_..'(A Government of India Undertaking),
represented by the Chairman &
E
which is produced at AnneXure--'A'. Petitioner No-8 who
was working as clerical staff in second respondent
Bank, submitted an application for Voluntary retirement on 29«~12«~2000 which came to be accepted by on 28-2-2001. Thereafterwards the 0 1etter/ communication dated 0' of the application submitted..__ forV'Vy'o111ntarl'ye"V_:
However, the respondents llacciepted the application for voluntary _Ar'eti::fernent.:"submitted by the petitioner on 29_-=1--2--20:00'=and relieve the 8th petitione'rWo0'n* remains that on 282- 200l an be issued to the 8th petitioner informing that':-his. application for voluntary retirement 'b--elen."eacceptedAand that he would be relieved of the on 30-4-2001 and it is against this it endorsemevent'.i'.ithe 8th petitioner submitted an appeal to the and Managing Director of the Bank i.e., the third arespondent seeking for setting aside the said endorsement it .:'_"'iss*ued by the competent authority and also permission to axe for Voluntary retirement resulted in a binding contract on both the parties and hence they are bound by the
5. Srisubramanya Bhat, learned M/ s Subba Rao Associates for as follows: it t V K V [i] That acceptance _V 'second respondent is conditional; VVVVV A L. it it it i
(ii) The complying":
said letter dated O _
(iii) of acceptance postulates proimises to be fulfilled by both the which has not been complied by resisforidents.
Eilaboratinéhis submissions Sri.Subramanya bhat contends 'Virtue of clause 11.7 .0 of the scheme the petitioner V. la right to withdraw before being relieved from the services and would further contend that acceptance would Q/.
1 have to be without conditions and by imposition of a condition in the acceptance letter the said contract itself would become a counter offer. Salary to the petitionieitophad not been paid while accepting the letterfappl.i_c'atio~n submitted for voluntary retirement as such th.e,.aece'p:tance' not an acceptance in the eye of law andielven ofier_ itself ' is incomplete. Sri.Subramanya ..__Bhate . Would: tithe': ; decision reported in the matter_:of;:_ S.Vl'1arI.1i*mAl_ Sinha Vs. Project and Bevelopiineizt 2.j_india«.:Ltd., and another reported in AIR 2302 SC' 1' attention of the Court to;;pVaragraphs."l and 19. It is the further subrnissiori of Bhat that acceptance must be absolute and unconditional and if it is conditional Section the (3on'tract attracted and the contract itself becomes' tu.ri-enfzirceable and bad in law.
-- Per; contra Sri.Pradeep Sawkar, Advocate appearing 'respondent by relying upon the following judgments:
a/r 0&-
(i) Bank of India and others Vs. O.P.Swarnakar and others [( 2003)'.-'2. SCC
721.
(ii) Punjab National Bank Vs. Goel and others. 2143641; Lia ~:1{lS7 ii
(iii) Vice Chairman and"-Managing'.lA SIDC LTD and*..another' jut-RX/Taraprasadw and others repo1jtetJ:« éCC 5'72 would contend that the__iVs:suVe sought to be urged in the prese§1t'_xx*ritA petitio_n._is" r1o~*In0re res integra in View of seeks for dismissal of the writ'«pe'titi0n7." ibfroiight to the notice of the Court by Pradeep SaW}.§ar~that- paragraph 130 in Swarnakar's case 'v:'V_to"CQi'Iten'd:r that thevmsame is applicable in all force to the faetsiiof case.
A 1 h'ave4i'~Vheard Sri. Subrarnanya Bhat, learned counsel for the petitioner and Sri.Pradeep Sawkar and appearing along with Sri.Pradeep Sawkar T anddthe points that arise for consideration as are as follows:
I 10 relieved from the services of the bank on 30-4-200.-1__._ The said Communication dated 28-2--2001 reads as "Your application for voluntary retir'e'm.ent under Vijaya Bank (Empl_oyees'} .0 Retirement Scheme-2000 has.__beerI.. *0 by the Competent authority dsrfldoject complying with all the relefiafrrt scheme particularly c1aVus--e.."%_:'1 I:-7.0 of"Vijaya Bank (Emp10yees'-)0 j . ,V§%j12In.taijf': ' Retirement Scheme- 2000, cornr.m1nteated"" .0 V I-1.0. Circular 020301/20I00I A 11.2000. AccorcI:ng1'3'r_««I;gf0~uI_ EE:;EIvEo from the services 30-.-$2001.
Furth_er._011 's.etti11g't"- ajeiieved from the service of v.Bar1k;._v"yo0u are advised to _Vsurrend.er the identity card, etc. issued to you ~.AVTHEV"l§FgNK"'i§ESERVES THE RIGHT TO _ §;'oUI2 APPLICATION ANY TIME IN .. "BEFORE RELIEVING YOU FROM THE _ IN CASE THERE Is ANY ___0«'O1"\i1"'E2\/IPLATED/OR DISCIPLINARY ACTION INITIATED OR TO BE INITIATED AGAINST YOU."
On receipt of the said communication, 8th peti'ti_oner..lclair.nfs to have wise counsel prevailed OV€I'j.l'1i1'l'1H£i_l?1d.'l'l€3Il¢E:4l1'1tE:'1;ld€'iZ'l to withdraw the offer given byhirn and1laccordi.'ng'ly dated 9--4~--2001 which is at camel' to be submitted seeking thereLi1.r_ir1er--'_Vto application dated 29-12'-2000 as withdra.w.n_.:-.e contention of Sri.Subrarnanya: £l3pelfo1\.:"ilbeing relieved the submitted on 9-4'-2001 and hence it 'cani1ot_V lbe"eo"ris_ide1'ed as a concluded contract _and it is "al_so_ in View of the clauses ..-v.n1entvi»oineVd*in the of acceptance dated 28-2-2001 which "sh-oVvvs..Vthatv said acceptance as conditional and also reciprocal was required to be performed by employer and same having been performed the said acceptance by "employer is not an acceptance in the eye of law. In this ..._l::19egard Sri.Pradeep Sawkar, learned counsel appearing for e/ \:§d>d and would contend that the said decision squarely applies to the facts of the case. it is submitted by Sri.Pradee«p~Sa,Wlgar to contend that the said judgment in SWarnak.ar'sv resulting in different understanding~ar'1d.as if ' Supreme Court in case of I National "
Vs.Virendra Kumar Goel and"-o1:hersV' (2004lj"_;I i057')'l considered the said judgment n'an'1elfy case and noticed as follows:
.l]3efor§;«., 1 'further, if at this stage,.._ directions sought to be reviewed.:ts;trictly relevant for the purpose disposal of the present "applications. This Court inter alia held that l 'requestuw of an employee seeking
- retirement would not take effect unless it was accepted in writing z competent authority and, therefore, this Court uphold the right of the employee to withdraw his option from voluntary retirement before, the same was accepted."
3/ W and contends that admittedly in the instant case the 2nd respondent has accepted the letter of resigna,tion'i~.V_for voluntary retirement dated 29-12-2000 on has also been communicated to 8"'. »p*3t.i4'Ei01fl'.<h3'I"0 "c*tS"SU<3V1'1u petitioner is estopped from con'tending llc.ontrary<vV'0i"---alter acceptance. He further conten-ds"~.that"'in of'Vice-0' Chairman and Managing and Another Vs. R.Varapras'acl' 11 SCC 572 the Hon'ble 'giuorporation in the said case given by the employees and could Vflhenefits as admitted by them in as they were awaiting the funds ;vf1'OIl1 and this fact not paying the convsiddered by the I-1on'b1e Supreme Court Supreme Court came to the conclusion that 0 00 _wheri"--- employees have opted for VRS on their own without compulsion knowing fully well of the scheme guide lines ._ig'aI°1d"circular governing the same it was not open to them to " any claim contrary to the terms accepted. He further @/ WA l3 contends that the acceptance of withdrawal letters would not arise particularly after the bank having accepted the SEIITIC .
9. In this background if the rival examined for answering question No. 1 and _N_0_A.2.forrnulatedVV herein above it would be necessaryflto looij: 'into the letter submitted for voluntary retirlemerlgtf'letter acceptance by the bank as alsollthe 1Vetter"0_llfl_vlrithfr1raWal by the 8"? petitioner. V A at Annexure-'A' was introduced' V' as a._ c-rV1el"t_i_n1e~~" measure by the bank which had received nod of Government for implementing perlflthe contentions of the bank the said scherriepllcalgme to-.b'e introduced to optimise and to achieve a _balan"c.ed and skill profile in keeping with their :".v4,4"blus.iness"strategies. The other undisputed fact is that the "scheme came to be circulated to all the employees by circular No. 23-11-2000 which was to come into force with @,,/ I6 effect from 1--12-2000. After several rounds of discussions at the industry level and after due deliberations the same scheme came into force which was kept..o_pe_1i"Vfrom 1-12-2000 to 31~O1--2001 and the said sche.flt¥€~.V\&9as "phred:y Voluntary and optional. It would '4 at this juncture which reads as foI1o\tis_:V_""
The application.:se_eking~ it/oluntary retirement subnii1tted_"h'3t_ eiriployeedddunder the Scheme sha1'1Hdb.e will not be oper14_f0.z_" vxiithdraw the such option.' thunder any :'circ_umst'a11ces . "' _ ' ---.
Thus, errrpioyeeds aware of the offer given by the bank to demployeesiyanpd. it was within the domain of the erifipieoyeest "the either to accept it or not to accept it. the instant case the 8"! petitioner herein "V 4 his application for voluntary retirement ChaVi"I'1.g understood the clauses enumerated in the scheme 29«»12~2000 which was wefl Within the time and on fir' W, service clearly stands terminated from the date on which the ietter of resignation is accepted by the appropriate authority and in the absence of any Iaw or rule governing'; the condition of the service to the contrary',Vi'. it it will not be open to the pubiic in withdraw his resignation a:ft'er*i'r_ by the appropriate authority1'_'an;d the resignation is -..acceVpt_ed V appropriate authority'"inr:Tconsonance':
the rules governing xthenjdacceptanceg' the public servant locus poenitentzne but not it Thus, the is not a part of any statutory regulation in'V.re'1:tri contract. The scheme as a _ whole; 'being and the petitioner having accepted in by submitting his application for voluntary now contend that the condition imposed in the is built with reciprocal promises and / or the recivprocal promises having not been fulfilled even on the said question wouid not arise inasmuch the '°*,aVpHpiication of the petitioner for voluntary retirement came W"
30
to be accepted on 28-2-2001 specifying thereunder the petitioner would be relieved with effect from It is in this factual matrix the decision in Swarnal§ar3s*i would apply to the facts of the present llallliforcei ' ; Hence, it is held that clause 1 l.5..lO.Vin.A_'_the require to be struck the Vldciiiestion answered by holding thei"clai:1se"" in the scheme is intra vires. __ _. V
11. In so faras thelllcoijtentiion regard to clause 11.7.0 whichis .tof:_tl1-e 'fo.l_loi'wir1g;" effect?
"i1,1.7;otil Vfsll--.i:p:a1no-iirits r payable under the Schetne ' V any other 5ser:/ice)'re'tireme'nté]terminal benefits will be to xprioie"'settlement/ repayment in full .,of loans, advances, dues, surrendering of quarters. Bank's pro*per«ty, if any, and any other outstanding dues to the Bank payable by the employee to ifiethe Bank." @/ SH it is contended that before payment was to be made by 2nd respondent on 30-4--2001 the petitioner subrn/itted application for withdrawal and it is also petitioner had a right to withdravvMbefore"'being"*i§elieved';~. inasmuch as the acceptance of the ;jvol;3unetaryV"'re'tiren1e1'1t letter by the bank which is at"£:_\_ri-:ieXur'e -.2' * the words " subject to yourflcompIyin'g?':'pigs? also the payment. It is that both these conditions having:p'i'emainedl:a. would be hit by Section '7 of contend that acceptancellltofu:thetilitigoliiritarytl retirement shouid have been abso1uteVzwithont-- The words "subject to your co.mp1ying"..i;vould"'"be a qualification and hence it .cannot<'gjei*t blossornédtvitself to unqualified acceptance. In this._reVgard_:vSri';,l$Earayar1a Bhat relies upon the decision in l the AcaseV___v'of_Sha1nbhu Murari Sinha as aiso Badriprasad ' H " ' -refeljred tohsupra.
12. In so far the Shambhu Murari case the Hon'ble .. ':fSupreIne Court had occasion to consider same in the case of W' 51$ Vice Chairman and Managing Director A.P.SIDC Ltd. and Another Vs. R.Varaprasad and others (2003) 11 SCC 572 and held as follows: 9 9 "These appeals are directed against:9""th\€v:,',,1:
common order made in W.Ps N0s.15793...Van:d 9 15742 of 1999. Respondent:'1""V1j'ay CA No.4658 of 2001 and 1é.espofid¢u1_ A.Simhadri, in CA 99.485999: 819399"
(hereinafter referred to respondents") filed Writ Petitions;-Nos;99195"?-0;319'pt'a1;c1 159?*4"2 of 1999 in the High' -lsee1_<:ing_'...directi0n to the appe11a,_nts__ Co1"po'ra:t:io111.,.9:'vt0 Veontinue them in attairt superannuation.
Both _VRs Phase 11:. The Corporation .-- 93"1.1.;4IV.t)--1998 as the cut-off date _foru" III. Respondents Vijay p.and9999'H.'Simhadri filed applications ' .99'seekingivwfioluntary retirement under the said ~-p9't8ch'é1fi.e-1 31-10-1998 and 10-10-1998 _ i*'espect1v:9e1y. The corporation accepted their A poptiottis on 24-11-1998 and 27-10-1998, which .«\1.1'I"cA_>re also acknowledged by the respondents on 96-11-1998 and 2-11-1998. Thereafter, they 9 applied for withdrawal of the option given for 41/ 535 VRS on 8-1-1999 and 26-24999 respectively. These respondents could not be relieved service along with a large number of employees who were relieved on under VRS Phase III because*t"ofAth'eV order granted by the High Caouzrftt petitions filed by them. .='"i'-he divi.si"o1'i 3 the High Court, by the impiugiied order'; aliovqedl the Writ petitions direétedjp the Corporatijon to continue their searvie-es' attaining the age of superarinuaitionjfip the High Court fo1i;5;\ire}3.~'. ":hé~iyda;ciéi<§nsC 'of'-this Court in Balrarnl _V » of India, J.l\l;'SrivaV.s'i;ava::fTv'; UnaionCof"inidia and Shambhu l\/luVr--ari-- ." Development India.
The the View that the respondents'*' 'Chad Tlfiled their withdrawal "appii<f:aiti,ons "oir841-1999 and 26-2-1999 and ' ---benefit of interim directions to H '- service granted by the High Court Con 3'0.-"F91 999 while they were to be relieved on _ pp31.??T_rA:"1999 and the result was that they were v_§::z11 in service on that date. The High Court further observed that these respondents had made the applications for withdrawal before the "'3 52.5 Consequences of the acceptance of their voluntary retirement by the Corporation. other words, question fo withdrawal of applications made for seeking retirement after their acceptance did_.i*1oti'ari'se: . and they could not be permitted tl_o'do"sgo_ It is fairly settled now that.__ voitifntaifyff retirement once accepte_cl*..V_in lternisg of Scheme or rules, as the case befoannotfibe withdrawn. In these._'"appeals.Afroraithpe facts is clear that the app1icatiot'i',s'fof vCA.'r'es;3ondents opting for C _:'wi*et.irerneVnt tinder the Scheme. were 'ac'_Ceptedi' and even the acceptance Thereafter, they filed.' the 'Hence the High Court was not right the writ petitions holding 'tvheyfapplied for withdrawal before gfgffectivell"date considering the date of ' L"relgieying~the_employees as the effective date. In ~_ the 'lighvt__the discussions made in civil Appeal rmsysssiittcof 1999 the High Court, in our view, was..V__lWrong in treating 31-7-1999 as an tgleftective date. The decisions relied on by the respondents before the High Court or in this 9 Court on facts do not help them. Moreover, the cbx a which was required to be performed by both the parties and also the same was not without any qualification tovVconte_nd that it is no contract in the eye of law. I am argument would not be tenable for two.r_e4asc:n's:" " --:" .
(i) The scheme as a wholeis an when the scheme 'itself ro"*oses lb of an-0 up 1% Y 0 :7 offer and whenxthe "offeijis accepted by such person namelylthe the instant case by su'i§rnittir;g for voluntary refire1_z"1eVnt'3'-'he"'--is-._de_e;ned to have accepted the said contention cannot be 'aeceptelfiyll "
(11). _ V_:e1'y.".san1e"clause 11.7 .0 of the scheme was ?-f"th"e..'sub#iect"'rr1atter for consideration by Bombay in W.P.i62/2001 in the case of Shetty Vs. Union of India and others
0. v,_i'eported in 2008 (108) FLR 85, whereunder their Lordship at paragraph 22 has held as follows:
(0% Z18 " Second submission made on behalf of the petitioner is that the acceptanVc'e_"'»was conditional. It was conditional....ii}VV':that*it was accepted subject to the the dues as per th_e~c0ndition't:onta;in'ed Clause 11.7.0 of the scaheme: It also conditional in that";_the petitionerf yvasfl denied and was"vainformed*~ that f'i:he.ppVetitioner V was ine}igible.l-"'for"-- additioh'al.. five years remuneration"-of§serViee._éfot the purpose of determining_ ipensiond as d Regulation 29 iuodf Rlégfilatioiié.':--"On.f the other hand, it V out.--on behalf of the Bank, at j.aridi§:,in our:yiew..rig%ht1y, that the petitioner these pleas in either of his 4' . lettefs'o:f'wftlidrawal dated 1031 April, 2001, ._:as-.Wel'i- as 15th May, 2001, nor in the peti'tis--n', as originally filed and they were vintroduced for the first time by amendment '~:d'uring the hearing of the petition on or about 2012 March, 2005. Admittedly, the petitioner was bound to comply with Clause 11.7.0 of the Scheme by which the employees were informed that all amounts payable under the Scheme would be we 61°l subject to prior settlement, repayment in full of all loans, advances, dues etc. Moreover, the petitioner in terms of Column 8 of his application dated 631 2000, had clearly undertakez{".lt'o~»l_' closure of all his liabilities..,_Ato.Vv tiéije i_Ban1»;
before he was reiiesikedllfrom. serV.ice_and not only that, the petitionerilhadll What were his__ll'iabilities in snb'Ǥ.co--iLirnn {a} V of Column 8 sai'd.ll_appli:cati0n of voluntarlfretirement 63? "December, 2000, andfonlyv"hecaiise;/t1'1_f3 Bank in their _1ette.r_ 2001, informed ~ 'that; he had to comply with 41li}._.l'i'--,0 of the Scheme, it does not it - m'ear"i..lp'that.iV'l4the petitioner's application for ll" yoliuntary retirement was accepted cond'i'tional1y. That was only a clarification mentioned by the Bank in terms of Clause .0 of the Scheme and the undertaking given to that effect by the petitioner. By no stretch of imagination it could be said that it was a condition of acceptance of the application for voluntary retirement." fl/' 30
14. Srisubramanya Bhat in reply would contend that this judgment would not be binding and isof persiiasive Value only. However, I am not persuaded counsel for the petitioner to deviate»AA»fro4m the' the High Court of Bombay and .
View taken therein and hence contention rais'c~d"by the learned counsel for the:"petitior1'er"p_is not accepted and same is hereby rejected.
15. In yiéw the following order is passe_d:.___ _ I' Thecimritll .petitio_ri is dismissed. Rule issued on is discharged. Parties are directed to bear their own Sd/4 JUDGE " Sbb/~