Shri Vijay Wamanrao Kumbhare ... vs Bank Of India Mumbai & Others
2017 Latest Caselaw 7702 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

                          Writ Petition No.2244 of 2002


Shri Vijay s/o Wamanrao Kumbhare,
Aged about 48 years,
Occupation - Nil,
R/o AD-128, Vrindavan Nagar,
Katol Road, Nagpur 440 013.                                     ... Petitioner

      Versus

1.    Bank of India,
      through its General Manager,
      Head Office, Express Towers,
      Nariman Point,
      Mumbai 400 021.

2.    Competent Authority,
      General Manager (Human Resources),
      Bank of India, Head Office,
      Express Towers,
      Floor No.14, Nariman Point,
      Mumbai 400 021.

3.    Zonal Manager,
      Bank of India, Zonal Office,
      Sardar Vallbhbhai Patel Marg,
      P.B. No.4, Nagpur 440 001.

4.    Branch Manager,
      Bank of India, Kodamendhi Branch,
      Tahsil Mouda, District Nagpur.                         ... Respondents




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Smt. Neeta Jog, Advocate for Petitioner.
Shri U.A. Gosavi, Advocate for Respondents.

              Coram : R.K. Deshpande & Manish Pitale, JJ.

th Date : 29 September, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The Scheme for voluntary retirement from service was

introduced by the respondent No.1-Bank of India with effect from

15-11-2000. The employees eligible were required to make an

application for voluntary retirement within a period of one month

from the date on which the Scheme was brought into force. The

petitioner submitted his application under the said Scheme for

voluntary retirement on 16-11-2000. Before the said application

was accepted, the petitioner submitted another application

dated 23-11-2000 for withdrawal of the application for voluntary

retirement. Without considering such application, the Bank

accepted the voluntary retirement of the petitioner on 20-1-2001, on

which date the petitioner was relieved from service. All the

monetary benefits available to the petitioner on account of

acceptance of voluntary retirement were paid to him on 7-2-2001,

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2-3-2001 and 19-4-2001. The petitioner claims to have accepted the

said benefits under protest, which he recorded on 20-1-2001.

2. Smt. Jog, the learned counsel appearing for the petitioner,

invited our attention to clause (J) of the Scheme, under which the

Bank reserved the right to alter and/or amend the conditions of the

Scheme, and it further contains a stipulation that the applications

made under the Scheme will be irrevocable and the employee will

not have any right to withdraw the application once submitted. She

submits that the employee has indefeasible right to withdraw the

application for voluntary retirement and the unilateral condition

imposed that the employee will not have any right to withdraw the

application for voluntary retirement, is unconscionable.

3. Smt. Jog further invites our attention to clause (G) of the

Scheme, under which the Bank had undertaken to relieve the

employee by accepting the notice of retirement not later than

31-12-2000. She submits that in the present case, though the

petitioner submitted an application for voluntary retirement on

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16-11-2000 and the entire process was required to be completed on

or before 31-12-2000, the acceptance of application of the petitioner

for voluntary retirement on 20-1-2001 was in breach of this

condition and it is, therefore, liable to be set aside.

4. Smt. Jog has relied upon the question of law decided by

the Apex Court in the case of Bank of India and others v. O.P.

Swarnakar and others, reported in (2003) 2 SCC 721, which is

reproduced below :

"A. Whether an application by an employee to secure voluntary retirement under the Voluntary Retirement Scheme (VRS) can be withdrawn by such an employee before the same is accepted by the competent authority though the Scheme contained an express stipulation that an application made thereunder is irrevocable and the employee will have no right to withdraw the application once submitted?"

She submits that in para 111 of the said decision, the Apex Court

considered its earlier decision in the case of Shambhu Murari Sinha

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v. Project & Development India Ltd., reported in (2002) 3 SCC 437,

wherein it is held that the appellant therein had locus poenitentiae to

withdraw his proposal for voluntary retirement before the

relationship of employer and employee came to an end. She

submits that in para 113, the Apex Court accepted that the said

decision would also apply to the facts before it. She, therefore,

submits that the employee has every right to withdraw the

application for voluntary retirement before it is accepted.

5. Shri Gosavi, the learned counsel appearing for the

respondent-Bank, has relied upon the decision of the Apex Court in

the case of Punjab National Bank v. Virender Kumar Goel, reported in

(2004) 2 SCC 193, to urge that the decision relied upon by

Smt. Jog has been reviewed by the Apex Court. He has also relied

upon the decisions of the Apex Court in the cases of Bank of India

and others v. K.V. Vivek Ayer and another, reported in

(2006) 9 SCC 177, and Surjeet Singh Bhamra v. Bank of India and

others, reported in (2016) 4 SCC 204. Shri Gosavi has urged that

the real test is whether the employee has utilized the benefits

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received by him upon acceptance of his notice of voluntary

retirement. He submits that the respondent-Bank has placed on

record ample material to establish this fact and, therefore, the

petition has to be dismissed.

6. We have gone through the decisions relied upon by both

the learned counsels and we find that the ultimate test laid down by

the Apex Court is the utilization of monetary benefits received by

the employee upon acceptance of the offer of voluntary retirement.

In the decision of the Apex Court in Surjeet Singh Bhamra's case,

cited supra, it is held in para 34 as under :

"34. In view of the foregoing reasons, we are of the considered opinion that the Scheme in question is partly mandatory for its compliance so far as the employee (the appellant) is concerned whereas it is directory for its compliance so far as the Bank (the respondent) is concerned. There can be no dispute for the legal proposition that the Scheme can be partially mandatory and partially directory."

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The Apex Court has held in clear terms that the Scheme in question

is partly mandatory for its compliance so far as the employee

(the appellant) is concerned, whereas it is directory for its

compliance so far as the Bank (the respondent) is concerned.

7. No doubt, in the present case, the employee was relieved

from service with effect from 20-1-2001 by the respondent-Bank,

which he has accepted under protest by making an endorsement

that he has already filed an application for withdrawal of notice of

voluntary retirement. The requirement of accepting and relieving

an employee upon acceptance of voluntary retirement on or before

31-12-2000 has to be held as directory in view of the decision of the

Apex Court in Surjeet Singh Bhamra's case, cited supra, and even if

the voluntary retirement was accepted on 20-1-2001, the same

would not vitiate. There is ample material placed on record to show

that the petitioner utilized the amount, which he received, by

investing it in the fixed deposit and withdrawing the cash of

Rs.2,05,302/-. The relevant extracts of his account are placed on

record.

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8. In view of above, we do not find any substance in the

petition. The same is dismissed. Rule stands discharged. No order

as to costs.

                (Manish Pitale, J.)                       (R.K. Deshpande, J.)


Nandurkar, PA