Sadiq Shafi Qureshi vs M.D And Ceo Union Bank Of India, ...
2022 Latest Caselaw 2958 Bom

WP 1770.21 (J)                                                                                     1/15


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

                                 WRIT PETITION NO.1770/2021

      Sadiq Shafi Qureshi,
      Aged about 56 years, Occupation-Service.
      R/o. 100, Prashant Nagar,
      Near CID Head Quarter, K.
      Nagpur-440 013
                                                                      ....... PETITIONER
                              ...V E R S U S...

1]     M.D. and C.E.O.,
       Union Bank of India,
       Head Office,
       239, Union Bank Bhawan,
       Nariman Point, Mumbai-400 021
       Banking Company Acquisition and Transfer of
       Undertaking previously Corporation Bank now
       it has merged with Union Bank of India on 01.04.2020)
       through its MD & CEO having Head Office
       at Union Bank Bhawan, Nariman Point,
       Mumbai.

2]     General Manager,
       Union Bank of India,
       Human Resources Management,
       239, Union Bank Bhawan,
       Nariman Point, Mumbai-400 021.

3]     Deputy General Manager,
       Union Bank of India.
       Regional Office, Ashirwad Complex,
       Central Bazar Road,
       Ramdaspeth, Nagpur-400 010.
                                                                     ....... RESPONDENTS

---------------------------------------------------------------------------------------------------------------
Shri S.S.Qureshi, petitioner in person.
Shri C.S.Samudra, Advocate for respondents.
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 WP 1770.21 (J)                                                           2/15



CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.
ARGUMENTS WERE HEARD ON : 18.02.2022
JUDGMENT IS PRONOUNCED ON : 25.03.2022
(AS PER CHAPTER XI RULE 1 OF THE BOMBAY HIGH COURT APPELLATE SIDE RULES, 1960).



JUDGMENT (Per A.S.CHANDURKAR, J.)

Rule. Rule made returnable forthwith and heard the petitioner in

person and the learned counsel for the respondents.

2. The petitioner, who was serving as 'Assistant Manager' with the

erstwhile Corporation Bank which has now merged with Union Bank of India

(for short, the Bank), has challenged the communication dated 15.05.2020

issued to him by the Bank by virtue of which the petitioner has been informed

that his services were relieved on 14.09.2017 under the Voluntary Retirement

Scheme and in accordance with the Corporation Bank (Employees') Pension

Regulations, 1995 (for short, the Pension Regulations,1995). Consequently,

the petitioner prays that his applications dated 13.09.2017 and 12.03.2020 be

accepted and he be permitted to withdraw his notice of resignation/voluntary

retirement. The petitioner further prays for his reinstatement in service with

continuity and full back wages.

3. The petitioner who appeared in person submitted that while he was

in service with the Corporation Bank he had taken various steps to intervene in

contempt proceedings before the Hon'ble Supreme Court for recovery of dues WP 1770.21 (J) 3/15

against Mr. V.Mallya. While serving as 'Assistant Manager' at Pune Branch of

the Corporation Bank he submitted an undated letter of resignation on

06.05.2017. However, he was informed by the Bank that his undated letter of

resignation could not be accepted considering the form in which it was sent.

The petitioner was informed that if he desired to resign from the service, he

was free to submit his letter of resignation through proper channel. Thereafter

on 22.05.2017 the petitioner again sought to resign from service. On

06.09.2017 the petitioner was informed by his employer that after considering

his letter of resignation dated 22.05.2017 as well as subsequent letter dated

04.08.2017, the notice period of three months would expire on 21.08.2017.

Since the petitioner had availed leave for the period of twenty four days from

the date of submission of his request for voluntary resignation, his relieving

date would be 14.09.2017. The request made by the petitioner for treating

such relieving date as 04.11.2017 was not accepted by the Bank. Thereafter

on 13.09.2017 the petitioner issued another communication requesting the

Bank to consider his request of withdrawing the resignation/voluntary

retirement application and not to relieve him from service. This letter was

forwarded to the superior Authority of the Bank and on 20.09.2017 the

petitioner was informed that an amount of Rs.1,73,516.44 was recoverable

from him. In the meanwhile the petitioner was relieved from duties on

14.09.2017. Thereafter on 12.03.2020 the petitioner made yet another request

to the Bank to permit him to withdraw the letter of resignation/voluntary WP 1770.21 (J) 4/15

retirement and reinstate him in service. The petitioner was informed by the

communication dated 15.05.2020 that his request for withdrawing the

voluntary retirement application could not be considered. It is in the aforesaid

backdrop that the petitioner has filed the present writ petition seeking

reinstatement with continuity in service.

4. After merger of the Corporation Bank with the Union Bank of India

from 01.04.2020, reply has been filed by the respondents through its Senior

Manager at the Regional Office. It has been stated therein that the petitioner

sought to voluntary resign from service and this request was considered in

accordance with Clause 29 of the Pension Regulations, 1995. It was brought to

notice of the petitioner on 13.08.2017 that though his letter dated 22.05.2017

mentioned that he was submitting his voluntary resignation under Clause 29 of

the Pension Regulations, 1995, the said provision related to voluntary

retirement and not resignation. The petitioner responded to the same on

04.08.2017 by confirming that he had applied for voluntary retirement under

Clause 29 of the Pension Regulations, 1995 and that his application be

considered accordingly. A confirmation letter in that regard was forwarded on

the same date. The petitioner was then informed on 14.08.2017 by the Chief

Manager of the Bank that his application seeking voluntary retirement had

been accepted by the competent Authority and that he would be relieved from

service on 21.08.2017 after completion of necessary formalities. The petitioner WP 1770.21 (J) 5/15

therefore on 23.08.2017 issued a communication to the Bank stating therein

that his relieving date be considered as 04.11.2017 being the notice period of

90 days from 04.08.2017 and not from 22.05.2017 as calculated. The Bank

responded by its communication dated 06.09.2017 in which it was stated that

since the date of the application for voluntary retirement was 22.05.2017 and

as the petitioner had availed leave of 24 days after submission of that

application, his relieving date would be 14.09.2017 and not 04.11.2017 as

requested. According to the Bank, this request for voluntary retirement was

reiterated on 06.08.2017 by the petitioner by stating that he be relieved after

three months from that date. The petitioner was again informed that he would

be relieved from service as informed earlier. The request for voluntary

retirement was again reiterated on 10.08.2017 and it was clarified by the

petitioner that he was seeking voluntary retirement and not voluntary

resignation. This was clarified by the petitioner on 14.09.2017 while seeking

commutation of his pension. Based on the aforesaid documentary material it is

the case of the Bank that the petitioner voluntarily retired from service in

accordance with Clause 29 of the Pension Regulations, 1995 with effect from

14.09.2017. It is then stated that there was no provision under the relevant

Pension Regulations of the Corporation Bank permitting withdrawal of the

notice of retirement and therefore such request as made by the petitioner could

not be accepted.

WP 1770.21 (J) 6/15

5. We have heard the petitioner in person and we have also gone

through the documents relied upon by him in the writ petition. We have also

heard Shri C.S.Samudra, learned counsel for the respondents-Bank and we

have gone through the written submissions filed on their behalf.

6. From the material on record three questions arise for determination,

firstly whether the request for voluntary retirement as made by the petitioner

on 23.08.2017 which was accepted by the Bank on 06.09.2017 by stating that

voluntary retirement would come into effect on 14.09.2017 could have been

withdrawn prior to that date despite its acceptance? If the answer to the

aforesaid question is in the affirmative, the second question is as regards the

effect of non-consideration of the petitioner's request for withdrawing the letter

of voluntary retirement and lastly, whether the petitioner is entitled for the

relief of reinstatement having accepted monetary benefits flowing from his

voluntary retirement ?

7. Regulation 29 (4) of the Pension Regulations, 1995 reads as under :

"29 (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."

WP 1770.21 (J) 7/15

Thus, an employee who has given notice to retire under the Regulation can

withdraw such notice subject to approval of the Appointing Authority provided

such request for withdrawal is made before the intended date of the

retirement. It is an admitted position on record that that the petitioner on

23.08.2017 had made a request for being granted permission for voluntary

retirement from service by treating the effective date as 04.11.2017 and not

22.05.2017 when he had made his initial application. On 06.09.2017 the Bank

accepted the proposal of the petitioner but stated that since the petitioner had

availed leave of 24 days after submission of his proposal for voluntary

retirement on 22.05.2017, his relieving date was to be 14.09.2017. It is not in

dispute that on 13.09.2017 which was a day before the date when the

petitioner was to voluntarily retire from service he made a request to withdraw

his proposal for voluntary retirement. The intention expressed by the

petitioner in this communication is clear that the petitioner wanted to

withdraw his letter/notice/proposal of voluntary retirement. It is not in

dispute that such communication was received by the Appointing Authority of

the Bank.

8. As regards consideration of the request for withdrawing the notice

of voluntary retirement given by the petitioner prior to the date on which he

was to voluntarily retire from the service, the legal position in that regard is

fairly well settled. In Power Finance Corporation Limited vs. Promodkumar WP 1770.21 (J) 8/15

Bhatia (1997) SCC 280 the Hon'ble Supreme Court has held in clear terms that

as long as the employee is not relieved of his duties on acceptance of the offer

of voluntary retirement or resignation, the jural relationship of employee and

the employer does not come to an end. In Shambhu Murari Sinha vs. Project

and Development India Ltd. and another (2002) 3 SCC 437 that was relied

upon by the petitioner, this position has been reiterated by stating that even

after acceptance of the application for voluntary retirement given by an

employee, he continues to have locus poenitentiae to withdraw his notice for

voluntary retirement. Similarly, in J.N.Srivastava vs. Union of India and

another AIR 1999 SC 1571 this position has been accepted.

Considering the provisions of the Pension Regulations and especially

Clause 29(4) thereof coupled with the legal position referred to hereinabove, it

is held that it was open for the petitioner to make a request for withdrawing his

notice of voluntary retirement prior to the intended date of retirement,

notwithstanding the fact that such request was accepted by the Bank. The first

question is answered accordingly.

9. The second question is as regards the effect of non-consideration of

the petitioner's request made on 13.09.2017 for withdrawing the notice of

voluntary retirement. The Bank has not disputed the fact that on 13.09.2017

the petitioner had made a request for withdrawing his notice of retirement

dated 23.08.2017. After receiving such request, on the same day the Senior

Manager of the Bank addressed a communication to the General Manger, WP 1770.21 (J) 9/15

Personal Administration Division, Head Office, Mangalore bringing to the

notice of that Authority the communication dated 13.09.2017 made by the

petitioner. The stand of the Bank as regards the communication dated

13.09.2017 made by the petitioner was not made clear in its reply. Hence, by

the order dated 13.01.2022 passed in the present proceedings, the Bank was

directed to clarify its stand with regard to the petitioner's communication dated

13.09.2017 as well as the Bank's subsequent communication, which is also of

the same date. Pursuant to the order dated 13.01.2022 the Bank has filed an

additional affidavit dated 20.01.2022. It has been stated that the Bank did not

give any specific reply to the letter of the petitioner dated 13.09.2017 as the

Bank had already considered the petitioner's earlier letter dated 06.09.2017

and therefore found that the request for withdrawing the proposal for

voluntary retirement was superfluous. The Appointing Authority however has

failed to consider that request and has sought to rely upon its earlier reply

dated 06.09.2017. By the communication dated 06.09.2017 the Bank merely

intimated the intended date of retirement of the petitioner to be 14.09.2017.

Thus, it is clear that the Bank has failed to consider the request made by the

petitioner for withdrawing his notice of voluntary retirement before the

intended date of retirement.

10. In this regard, useful reference can be made to the decision of the

Hon'ble Supreme Court in Balram Gupta vs. Union of India AIR 1987 SC 2354.

WP 1770.21 (J) 10/15

While considering the validity of Rule 48(4) of the Central Civil Services

(Pension) Rules, 1972 which is somewhat similar to Regulation 29(4) it was

held that the approving authority must act reasonably and rationally while

considering the request for withdrawing the notice of voluntary retirement.

Approval is not the ipse dixit of the approving authority. This decision has been

relied in Arun Shankarrao Deshpande vs. District and Sessions Judge, Akola 1993

Mh.L.J. 1642 where the validity of similarly worded Rule 66(5) of the

Maharashtra Civil Services (Pension) Rules, 1982 was challenged. It has been

held that the appointing authority is required to give good and valid reasons for

not granting approval to the withdrawal of notice of retirement. It is thus clear

that it is open for the Appointing Authority to refuse to grant approval to the

withdrawal of the notice of voluntary retirement for valid and good reasons,

the approval cannot be the ispe dixit of the Appointing Authority. In the present

case, the Appointing Authority has failed to consider the request of the

petitioner for withdrawing the notice of voluntary retirement though it was

open for it to refuse such request for good and valid reasons. The petitioner

cannot be prejudiced for the failure of the Appointing Authority to consider his

request for withdrawing his notice of voluntary retirement. This aspect enures

to the benefit of the petitioner and the second question is answered accordingly .

11. Since both the questions have been answered in affirmative, it

would be necessary to consider whether the petitioner is entitled to succeed on

the basis of undisputed facts on record. On 14.09.2017 the petitioner was WP 1770.21 (J) 11/15

relieved from service. On the same day he submitted an application for

commutation of pension without medical examination to the General Manger,

Corporation Bank. The date of retirement stated therein was 14.09.2017 and

class of pension was stated to be VRS (Voluntary Retirement Scheme). The

fraction of pension proposed to be commuted was one third. The petitioner

thereafter has been drawing pension of Rs.38,450/- per month. With regard to

receiving the amount of gratuity from the Corporation Bank Employees

Gratuity Funds, the petitioner was informed on 22.09.2017 that the amount of

gratuity payable as per provisions of the Gratuity Act, 1972 (for short, the Act

of 1972) was Rs.14,36,620.18. However, the maximum permissible amount

payable was Rs.10,00,000/-(Rs.Ten lakhs). A demand draft for amount of

Rs.10,00,000/- dated 21.09.2017 drawn in favour of the petitioner was

accordingly forwarded for clearing. It appears that the Bank adjusted an

amount of Rs.1,73,516.44 from the petitioner's gratuity proceeds on account of

recoveries to be made from him. The petitioner being aggrieved approached

the Controlling Authority of the Bank under the Act of 1972 making a grievance

in that regard. This application was made to the Controlling Authority on

28.04.2018. On 07.01.2019 the Controlling Authority allowed that application

and directed the Bank to pay the amount of Rs.1,73,516.44 to the petitioner

within a period of 30 days. The Bank accordingly complied with the aforesaid

order and credited the aforesaid amount to the petitioner's bank account. This

was informed to the petitioner on 28.11.2019. With regard to the provident WP 1770.21 (J) 12/15

fund dues of the petitioner, a communication was issued by him on 18.08.2017

to the Bank to settle his provident fund account.

From the aforesaid, it is clear that the petitioner had sought

commutation of his pension. The petitioner is presently receiving monthly

pension of Rs.38,450/-. He has received gratuity amount of Rs.10,00,000/- and

deduction of Rs.1,73,516.44 has been directed to be repaid to the petitioner

and his provident fund dues are also sought to be settled. The present writ

petition has been filed on 09.03.2021 and in the aforesaid factual backdrop, the

entitlement of the petitioner to reliefs as prayed for would have to be

considered.

12. In Punjab National Bank vs. Virenderkumar Goel (2004) 2 SCC 193

an employee of the bank had applied for voluntary retirement on 17.11.2000

under the scheme that was in operation from 01.11.2000 to 30.11.2000. On

27.11.2000 the employee submitted an application for withdrawal of his

application dated 17.11.2000. The bank accepted the request of the employee

after the period of the scheme had expired and on that date relieved the

employee. Considering the aforesaid aspects, it was held that the employee

was aware that certain amounts were deposited in his account towards part

benefit under the Voluntary Retirement Scheme. Despite having knowledge

that the request for voluntary retirement had been accepted after the scheme

had expired, the employee had withdrawn the amounts deposited and had

utilized the same. In that context, it was observed that the employee having WP 1770.21 (J) 13/15

accepted the benefit under the scheme by withdrawing the amounts deposited

and utilizing the same, he would not be permitted to approbate and reprobate.

In P.K.Krishnamurthy vs. The Commissioner of Sericulture and another (2014)

12 SCC 549 disciplinary proceedings were initiated against an employee on

18.01.2004. On 03.02.2004 the employee sought permission to retire from

service from 01.05.2004. The employer on 04.03.2004 accepted the request of

the employee. Before 01.05.2004 the employee on 15.04.2004 made a request

to the employer to permit him to continue in service by revoking the order

dated 04.03.2004. That application was rejected by the employer on

28.04.2004. Subsequently an order was passed on 29.07.2004 imposing

punishment of 25% cut in the amount of pension on account of gross

negligence. The employee filed an appeal challenging that order which was

allowed on 03.04.2006. The prayer made by the employee seeking

reinstatement was rejected. It was held that the employee having failed to

challenge the order dated 28.04.2004 whereby his application seeking

revocation of the permission to voluntarily retire from service was rejected. It

was clear that the employee had taken a chance of moving an application

seeking reinstatement in service after about two years. That request was not

accepted.

13. The conduct of the petitioner in the present case is thus material and

from the same it is clear that after being relieved from service on 14.09.2017

the petitioner has received various retirement benefits. He is also receiving WP 1770.21 (J) 14/15

regular monthly pension. Though the petitioner had engaged in some

communications with the Bank thereafter, it is only on 09.03.2021 that the

writ petition has been filed. Thus for a period of more than three years

the petitioner has received and is receiving his retirement benefits despite

which he has sought to challenge the non-consideration of his request to

withdraw his application seeking permission to voluntarily retire from

service. We find that the petitioner's conduct of receiving various service

benefits from 14.09.2017 disentitle him to the relief of reinstatement with

continuity of service as prayed by him. The petitioner cannot be permitted

to take inconsistent positions at the same time, one by seeking to withdraw

his notice of voluntary retirement before the intended date of such

voluntary retirement and on the other hand continue to receive the

retirement benefits. The third question is answered accordingly.

14. Hence for aforesaid reasons it is held that though the

petitioner was entitled to withdraw his offer of voluntary retirement

before the intended date of such voluntary retirement, accepting

various retirement benefits for a period of more than three years

disentitles him to grant of any relief under Article 226 of the WP 1770.21 (J) 15/15

Constitution of India. The writ petition is thus dismissed. Rule stands

discharged with no order as to costs.

                              (G.A.SANAP, J.)      (A.S.CHANDURKAR, J.)

               Andurkar..




Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
25.03.2022 17:01