Sandesh Verma vs Govt. Of Nct Of Delhi And Anr.
2013 Latest Caselaw 5109 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4597/2012

%                                                    7th November, 2013

SANDESH VERMA                                   ..... Petitioner
                          Through:       Mr. Deepak, Advocate with petitioner
                                         in person.

                          Versus

GOVT. OF NCT OF DELHI AND ANR.                ...Respondents

Through: Mr. Sachin Chopra, Advocate for respondent No.1.

Mr. R.K. Vats, Advocate for respondent No.2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Counter affidavit in this case has been filed way back in

August, 2013. There is no reason to grant adjournment to file rejoinder

affidavit as the facts of the present case show that the petition is clearly

barred by the principle of estoppel as also the direct ratio of the judgment of

the Supreme Court in the case of A.K.Bindal Vs. Union of India (2003) 5

SCC 163.

2. Petitioner was an employee of respondent No.2. Petitioner took

voluntary retirement under a 2009 SVRS Scheme. Petitioner received

amounts pursuant to acceptance of his VRS application. Petitioner has

utilized all the amounts which were received by him on his VRS application

being accepted which will include the ex gratia payment. Petitioner stood

voluntarily retired w.e.f 31.12.2009.

3. By this writ petition, the petitioner prays for grant of pension by

stating that he has completed 18 years and 3 months of service and therefore

his service has to be taken as 20 years or more and therefore he was entitled

to pension on the date his application for voluntary retirement was accepted.

The pension claimed is thus in addition to VRS benefits already received by

the petitioner.

4. The Supreme Court in the case of A.K. Bindal (supra) has held

that taking of a voluntary retirement is a golden handshake. The effect of

this golden handshake is to sever the relationship of employer and employee.

After the relationship is severed, no employee can claim any alleged past

dues from his employer. Para 34 of the judgment in the case of A.K. Bindal

(supra) which holds accordingly reads as under:-

"34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts

for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a compete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated." (underlining added)

5. If the petitioner did not want the SVRS the petitioner need not

have taken SVRS. Reliance placed by the petitioner upon the circulars of

the respondent No.2 including the circular dated 13.10.2009 is misconceived

for the reason that neither the petitioner nor any other employee of the

respondent No.2 was ever declared surplus.

6. Petitioner has utilized the amounts received by him pursuant to

his taking voluntary retirement and therefore in addition to the ratio in the

case of A.K. Bindal (supra) petitioner is estopped from filing the present

petition as I have so held in the case titled as R. Kothandaraman Vs.

Speaker, Lok Sabha Secretariat and Anr. in W.P.(C) No.7132/2009

decided on 10.1.2013. Relevant paras of the judgment in the case of

R.Kothandaraman (supra) reads as under:-

"12. In my opinion, the respondents must succeed on the principle of estoppel inasmuch as it makes no difference whether the retirement is pursuant to a contractual voluntary scheme or pursuant to a statutory Rule inasmuch as if Rule 48A is statutory, the provision of Section 115 of the Evidence Act which deals with the principle of estoppel is also a statutory provision. The principle of estoppel is based on the ground of equity that no one can take advantage of a fact and thereafter turn around to say that the situation should be reversed. Equity does not permit such an action of blowing hot and cold by a person. In the present case, since entitlement pursuant to Rule 48A of seeking voluntary retirement is personal to the petitioner there is no element of public policy involved and therefore the petitioner was entitled to waive the rights under Rule 48A of seeking the withdrawal of his request of voluntary retirement by accepting and utilizing the terminal lumpsum benefits given pursuant to the retirement. I am unable to agree with the judgment in the case of Vishnu Vardhan Reddy (supra) of Andhra Pradesh High Court inasmuch as the cited judgment does not refer to judgments in the case of Punjab National Bank and Pale Ram Dhania (supra) wherein the issue of estoppel has squarely been dealt with. In para 11 of the Punjab National Bank's case it has been held that on taking benefits pursuant to a voluntary retirement a person is estopped from withdrawing from the voluntary retirement. Paras 10 and 11 of the judgment in the case of Punjab National Bank (supra) are relevant and they read as under:- "10. In our view this contention would be of no assistance to the respondent. He knew very well that the money deposited in his account was part of the benefits under the Scheme. He also knew it very well that his request for VRS was accepted after the

Scheme had expired, yet he had withdrawn the amount deposited and utilized the same. The fact that the respondent had withdrawn a part of the benefit under the Scheme is not disputed and it could not be. To substantiate the contention, the applicant has submitted a photocopy of the respondent's Bank Account No.27980 (Annexure R-1). It clearly appears from Annexure R-1 that a part of the retirement benefit was deposited in the respondent's Bank Account on 12-1-2001 and on 15-1-2001 he had withdrawn rupees three lakhs. Again on 28-2-2001 he had withdrawn rupees fifty thousand.

11. This fact, however, was not brought to the notice of this Court at the time of the hearing. However, the fact remains that the incumbent had accepted the benefits under the Scheme and utilization thereof would squarely be covered by Direction 1 as notice above. Therefore, the judgment dated 17-12-2002 is reviewed to the extent that he appeal arising out of the judgment and order of the Uttaranchal High Court is dismissed and the judgment of the High Court is upheld." (underlining added)

13. In Pale Ram Dhania's (supra) case, the Supreme Court has observed as under:-

1. It is not disputed that the appellant Bank introduced a Voluntary Retirement Scheme, 2000 (herein referred to as "the Scheme") for its employees which had the approval of its Board of Directors. The Scheme was operative w.e.f. November 15, 2000 to December 14, 2000 for the employees who sought voluntary retirement. It is not disputed that the respondent herein who was an employee of the appellant Bank sought voluntary retirement under the Scheme on November 30, 2000. It is also not disputed that on December 2, 2000 he wrote to the Bank for withdrawal of his application for voluntary retirement. On January 22, 2001, the appellant Bank accepted the request for voluntary retirement of the respondent. Further, on January 25, 2001, the respondent withdrew the retiral benefits deposited in the Bank in his name as per voluntary retirement. It appears that the respondent changed his mind after the respondent was relieved from the employment and he filed a petition under Article 226 of the Constitution challenging the acceptance of his request for

voluntary retirement. A learned Single Judge of the High Court allowed the petition and set aside the acceptance of the application for voluntary retirement submitted by the respondent. Aggrieved, the appellants preferred a letters patent appeal which was dismissed. It is against the said judgment, the appellants are in appeal before us.

2. A Bench of three Judges of this Court in Punjab National Bank v. Virender Kumar Goel (2004)ILLJ1057SC , has held that an employee who sought voluntary retirement and subsequently wrote for its withdrawal but has withdrawn the amount of retiral benefits as per the Voluntary Retirement Scheme, is not entitled to the withdrawal of his application for voluntary retirement. It is not disputed that in the present case the respondent herein withdrew the amount of retiral benefits on January 25, 2001.

3. For the aforesaid reason, this appeal deserves to be allowed. We order accordingly. The order and judgment under challenge is set aside. There shall be no order as to costs.

C.A. Nos. 4099, 4100 of 2002 and 8833 of 2003

4. In view of the above order passed in C.A. No. 4098 of 2002, these appeals arc also allowed. The orders and judgments under challenge are set aside. There shall be no order as to costs." (underlining added)

14. In view of the aforesaid discussion, I hold that though the petitioner had validly revoked his request for voluntary retirement and which withdrawal was valid in view of the judgments of the Supreme Court in the case of Balram Gupta (supra), Shambu Murari Sinha (supra) and J.N.Srivastava (supra) cited on behalf of the petitioner, however the petitioner is estopped in view of the sub para 1 of para 130 of the judgment in Bank of India's (supra) case and paras 10 and 11of the judgment in Punjab National Bank's (supra) case and Pale Ram Dhania's case to withdraw from his request seeking voluntary retirement. At the cost of repetition it is necessary to be stated that the petitioner does not dispute the fact that the lumpsum amounts credited in his bank account including towards provident fund, gratuity and commutation of pay have been withdrawn and utilized by the

petitioner. If the petitioner had only utilized the amounts credited in his account for withdrawing monthly salary which was due to the petitioner from time to time then in such a case possibly it could have been argued that the principle of estoppel cannot apply, however, in the present case the issue is not of withdrawal of amounts every month (whether as pension or as salary) but the issue is of utilizing and taking benefit of lumpsum amounts which were deposited in the account of the petitioner on account of provident fund, gratuity and commutation of pay."

7. In view of the above, there is no merit in the petition and the

same is barred not only by the ratio of the judgment of the Supreme Court in

the case of A.K. Bindal (supra) but also by the principle of estoppel. Writ

petition is accordingly dismissed, leaving the parties to bear their own costs.

NOVEMBER 07, 2013                                 VALMIKI J. MEHTA, J.
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