Bank Of India And Others v. K.V Vivek Ayer And Another

Arijit Pasayat, J.— In this appeal, Bank of India, a nationalised bank, and its functionaries have questioned correctness of the judgment rendered by a Division Bench of the Bombay High Court inter alia holding that the appellants' action purporting to accept the prayer for being covered by the Voluntarily Retirement Scheme (in short “VRS” or the Scheme) was not in order.

2. A brief reference to the factual aspects would suffice:

The respondent (hereinafter referred to as “the employee”) joined the services of the Bank in 1974. In May 2000 the Government of India, Ministry of Finance, (Banking Division) vide their letter dated 22-5-2000 advised all nationalised banks to carry out detailed manpower planning in order to adopt measures to have optimum human resources at various levels in keeping with the business strategies and requirements of each bank, keeping in view the economic reforms set in motion in 1990. In August 2000, a committee was constituted by the Government which placed before it two schemes. One of the schemes suggested was called the Voluntary Retirement Scheme. After getting no objection from the Government for placing the Scheme before the respective Boards of Directors for adopting and implementing the Scheme, the Indian Banks' Association circulated a letter dated 31-8-2000 to all the banks vide which the banks were familiarised with the salient features of the Scheme. On 1-11-2000, Appellant 1 Bank floated the Scheme which was approved by its Board of Directors. The Scheme was introduced and was called the “Bank of India Voluntary Retirement Scheme, 2000”. The Scheme was open from 15-11-2000 and continued up to December 2004 for employees who sought voluntary retirement. The respondent employee sought voluntary retirement by submitting an application on 17-11-2000. On 20-11-2000 the respondent employee prayed for withdrawal of the same. About a month thereafter Appellant 1 Bank wrote to the respondent intimating that his application for voluntary retirement was under consideration and the decision of the competent authority would be conveyed as soon as the same is taken. On 9-1-2001, the respondent employee wrote a letter to the Zonal Office of the Bank indicating that he had already withdrawn the letter seeking coverage by the Scheme on 20-11-2000. A writ petition was filed by the respondent employee before the Bombay High Court which was numbered as Writ Petition No. 897 of 2001 in April 2001. On 19-4-2001 the respondent employee's application to be covered under the Scheme was accepted by Appellant 1 Bank, he was relieved from the services and ex gratia compensation as well as leave encashment amounts were credited to Savings Bank Account No. 9420 of the respondent employee. Certain withdrawals and/or adjustments were made out of the amounts deposited. According to Appellant 1 Bank, the respondent employee by his letter dated 19-4-2001 acknowledged the receipt of the ex gratia compensation and leave encashment amount and requested for settlement of his terminal dues.

3. By the impugned judgment dated 26-4-2001 the Division Bench of the Bombay High Court pronounced its final judgment/order in a matter involving an identical Voluntary Retirement Scheme floated by the Punjab National Bank in Jai Singh Chauhan v. Punjab National Bank WP No. 259 of 2001. Following its earlier judgment, by the impugned judgment, the Division Bench held that Appellant 1 Bank was not justified in treating the respondent employee to be covered by the Scheme and directed his reinstatement with all consequential benefits. Punjab National Bank and the other banks whose cases were decided by the High Courts approached this Court. A three-Judge Bench of this Court in Bank of India v. O.P Swarnakar (2003) 2 SCC 721 considered the scope and ambit of the Scheme and certain directions were given as to in which cases the employees concerned were to be treated to be covered by the Scheme and/or relief that can be granted.

4. In support of the appeal, learned counsel for the appellant submitted that the case at hand is squarely covered by Bank of India case (2003) 2 SCC 721, more particularly, the parameters set out in para 130 of the judgment. It is pointed out that in Savings Bank Account No. 9420, as on 7-4-2001 there was a credit balance of Rs 251.15 On 19-4-2001, that is, the crucial date, two amounts were deposited i.e Rs 1,56,900.64 being the amount payable for leave encashment and Rs 3,60,864.81 representing the ex gratia amount. On the very same day the respondent employee made two fixed deposits i.e one for Rs 80,000 and other for Rs 4,00,000 by withdrawal from the account. Adjustments were made in respect of overdraft and loan account, and there were two cash withdrawals. This, according to the learned counsel for the appellant clearly indicated utilisation of the amounts deposited by the appellant Bank. Therefore, the respondent employee is not entitled to an order of reinstatement as directed by the High Court.

5. In response, learned counsel for the respondent submitted that unlike the cases which were dealt with in Bank of India case (2003) 2 SCC 721, in the instant case, there was hardly any time-gap between the date when the application was made for being covered by the Scheme and the date of withdrawal of the same. The application was made on Saturday and on Monday as soon as the Bank reopened, prayer was made for not acting on the application for being covered by the Scheme. It was further submitted that the fixed deposits made by the respondent cannot be treated to be as utilisation of the amount by the respondent, as the fixed deposits were made in Appellant 1 Bank and the money remained with it. Therefore, it was submitted that Bank of India case (2003) 2 SCC 721 does not apply to the facts and circumstances of the present case.

6. In order to consider the acceptability of the respective stand, it is necessary to take note of what was stated in Bank of India case (2003) 2 SCC 721 in paras 114 and 115 of the judgment. It was noted as follows:

“114. However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the Scheme, in our considered opinion, could not have resiled therefrom.

115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.”

7. In para 130, the position was summed up as follows:

“1. The appeals preferred by the nationalised banks arising from the High Courts are dismissed except the cases where the employees concerned have accepted a part of the benefit under the Scheme; however, in respect of such of the employees who despite acceptance of a part of the retirement benefit under the Scheme had continued under the orders of the High Court and have retired on attaining the age of superannuation, this order shall not apply.

2. The appeals filed by State Bank of India are allowed.

3. The appeals arising from the judgments of the Uttaranchal High Court are allowed and the judgments of the said High Court are set aside.

4. The appeals arising from the judgments of the Punjab and Haryana High Court in relation to ten writ petitions which were filed by the employees for a direction upon the Bank that the benefits under the Scheme be paid to them are set aside and the matters are remitted to the High Court for consideration thereof afresh on merits and in accordance with law.”

8. Subsequently, certain clarifications were sought for by several banks. A three-Judge Bench in Punjab National Bank v. Virender Kumar Goel (2004) 2 SCC 193 clarified the position as follows in para 16:

“16. We make it clear that the sentence, ‘accepted a part of the benefit under the Scheme’, which appeared in our direction as noticed above, would include the withdrawal of the benefit and utilisation thereof. By no stretch of imagination, unilateral deposit of a part of benefit under the Scheme into the bank account, that too after withdrawal of the application, would construe as to have accepted the part of the benefit under the Scheme, when the same was neither withdrawn nor utilised by the employee concerned.”

9. The crucial question is whether the employee concerned had utilised the amount deposited. It was clarified in Punjab National Bank case (2004) 2 SCC 193 that the deposit of a part of the benefit unilaterally would not amount to acceptance of the benefit under the Scheme. However, when there is utilisation of the amount so deposited that would be covered by the ratio in Bank of India case (2003) 2 SCC 721. The mere fact that the application for not giving effect to the question for being covered by the Scheme was made after a few days cannot change the position in law. Moreover, the making of fixed deposits by the respondent employee is a clear case of utilisation. Merely because the fixed deposits were made in Appellant 1 Bank, that does not take away the effect of the fact that it was utilised by the respondent employee.

10. Above being the position, the decisions in Bank of India case (2003) 2 SCC 721 and Punjab National Bank case (2004) 2 SCC 193 clearly apply to the facts of the case. The High Court's order is clearly unsustainable and is set aside. The appeal is allowed. No costs.

Civil Appeal No. 5033 of 2002

11. Heard Mr Sanjay R. Hegde, learned Advocate for the appellant. In view of our decision in CA No. 4239 of 2002 decided today, the impugned order of the High Court is set aside. This appeal deserves to be allowed, and we direct accordingly. No costs.

Civil Appeal No. 5036 of 2002

12. In view of the judgments of this Court in Bank of India v. O.P Swarnakar (2003) 2 SCC 721 and Punjab National Bank v. Virender Kumar Goel (2004) 2 SCC 193 and the factual position that there was a unilateral deposit and non-utilisation, there is no merit in this appeal. It is accordingly dismissed. No costs.