Professor L.S. Tanwar vs Netaji Subhas Institute Of ...
2013 Latest Caselaw 4798 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.6420/ 2010

%                                                   21st October, 2013

PROFESSOR L.S. TANWAR                               ..... Petitioner
                  Through:               Ms. Manpreet Kaur, Advocate.

                          Versus

NETAJI SUBHAS INSTITUTE OF TECHNOLOGY AND ORS.
                                             ...Respondents

Through: Mr. Amiet Andley, Advocate for respondent No.1.

Mr. Amitesh Kumar, Advocate for respondent No.3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner seeks the benefit of increase in

his age of superannuation from 62 years to 65 years in terms of the

notification dated 5.3.2010 of the respondent no.3/All India Council of

Technical Education (AICTE).

2. That the notification dated 5.3.2010 has been approved for

implementation by the respondent no.2/Govt. of NCT of Delhi as regards

the respondent no.1 is not disputed, and which is in terms of the office order

dated 29.7.2010 of the respondent no.2. This order also does not give any

prospective date for implementation of the notification dated 5.3.2010 and

the office order dated 29.7.2010 simply states that notification of the

respondent no.3 dated 5.3.2010 is to be implemented.

3. I was originally inclined to allow the writ petition in view of the

fact that the petitioner superannuated on 31.5.2010, and the notification

dated 5.3.2010 would stand implemented from 5.3.2010 itself in the absence

of any prospective date in the office order dated 29.7.2010, however,

petitioner is actually estopped from claiming the relief of entitlement to

continue till the age of 65 years inasmuch as petitioner pursuant to office

order of the respondent no.1 dated 8.6.2010 had received terminal benefits

of GPF amounting to Rs.4,47,602/-. Once an employee without reserving

his rights not only accepts the terminal benefits but in fact utilizes such

terminal benefits credited to the employee's account, such person thereafter

cannot turn around and claim that he does not stand retired and entitled to

the age of superannuation. I also note that petitioner has otherwise crossed

the age of 65 years and the issue is only of payments claimed without

petitioner having to work.

4. I have had an occasion to consider the aspect of estoppel in the

case of R. Kothandaraman Vs. Speaker, Lok Sabha Secretariat and Anr. in

W.P.(C) No.7132/2009 decided on 10.1.2013 wherein I have held that the

issue of taking back an application for voluntary retirement even if to be

validly in favour of the employee yet benefit of continuation in employment

cannot be granted where terminal benefits have been received and utilized

by the employee. The relevant paras of this judgment read 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."

5. In the present case, respondent no.1/employer in the counter

affidavit has specifically stated in para 6 of the preliminary objection with

respect to receipt of the amount of Rs.4,47,602/- by the petitioner and the

petitioner in the rejoinder affidavit does not dispute receiving this amount or

that the amount has been received without prejudice or that the amount has

not been utilized and kept intact by the petitioner.

6. In view of the above the relief claimed in the petition is barred

on the principle of estoppel, and the writ petition is therefore dismissed,

leaving the parties to bear their own costs.

OCTOBER 21, 2013                                  VALMIKI J. MEHTA, J.
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