& Sind Bank & Ors Vs. Mohinder Pal Singh & Ors  Insc 620 (28 October 2005)
H.K. Sema,S.B. Sinha & A.K. Mathur O R D E R I.A. No. 7 in CIVIL APPEAL NO. 8476 OF 2002 Application of a
decision of this Court in Bank of India and Others this application. Before, however, we advert to the said question, we may notice the admitted
Shri Amarjit Singh Sahni, the Applicant herein at all material times was
working in the Punjab and Sind Bank (for short "the Bank") as a
Cashier-cum-Clerk at the Zonal Office Haryana. The Bank adopted a scheme known
as "the Punjab and Sind Bank Employee's Voluntary Retirement Scheme,
2000" (for short "the Scheme") which was to remain in operation
from 1.12.2000 to 31.12.2000. In terms of the Scheme, those who sought for
voluntary retirement were entitled to accept ex gratia payments as specified
therein as also the other benefits which are as under:
"Amount of ex gratia An employee seeking voluntary retirement under the
Scheme will be entitled to the ex gratia amount mentioned below in para (a) or
(b), whichever is less:
(a) 60 days' salary (pay plus stagnation increments plus special pay plus
dearness relief) for each completed year of service;
or (b) salary for the number of months of service left;
Other benefits An employee seeking voluntary retirement under the Scheme
will be eligible for the following benefits in addition to the ex gratia amount
mentioned in para 6 above of this Scheme:
(i) Gratuity as per the Payment of
Gratuity Act, 1972 or
gratuity payable under the Service Rules, as the case may be, as per existing
(ii)(a) Pension (including commuted value of pension) as per PNB (Employees)
Pension Regulations, 1995.
or (b) Bank's contribution towards PF as per existing rules.
(iii) Leave encashment as per existing rules." The Applicant opted to
avail the benefit of the said Scheme wherefor he filed an application on
15.12.2000. He, however, withdrew the said offer on or about 22.12.2000. It is
not the case of the Bank that prior thereto the application filed by the
application was accepted.
It is furthermore not in dispute that on 29.01.2001, the Applicant filed a
writ petition in the Punjab and Haryana High Court being C.W.P. No. 1458 of
2001. The matter came up before the High Court on 31.01.2001 whereupon notices
were issued and an interim order was passed directing that if the applicant had
not been relieved from service, he would be allowed to continue therein.
However, he was not permitted to join his service by the Bank on the plea that
he had been relieved from duties on 28.01.2001.
Employees who had, however, not been relieved were permitted to continue.
It is furthermore not in dispute that the Applicant had a Saving Banks
Account with the Bank wherein a sum of Rs. 1422.21 was deposited on 9.03.2001.
According to the Applicant, as he apprehended that the Respondent might deposit
some other amount in terms of the aforementioned Scheme in his account, he
closed the same on or about 24.04.2001.
The employees of the Bank as also other nationalized banks filed writ
applications questioning the legality and validity of the Scheme. Some writ
applications were also filed seeking for issuance of writ of or in the nature
of mandamus directing the respective Banks to pay unto them their lawful dues
strictly in terms of the Scheme. The said writ applications were allowed by the
Punjab and Haryana High Court holding the Scheme to be invalid in law.
The Bank as also the other banks filed applications for grant of special
leave before this Court questioning the correctness of the said judgment.
These appeals upon grant of special leave were disposed of on 17th December, 2002 in O.P. Swarnakar (supra) wherein this Court opined:
(i) If the Scheme had been amended as a result whereof the employees
entertained an apprehension that they would not even receive the entire
benefits, they were entitled to revoke the offer.
(ii) An offer made by an employee ipso facto would not amount to a
resignation in praesenti as it was to apply on a future date and withdrawal
thereof before acceptance thereof by the employer would be valid in law.
(iii) The offers could not be accepted before expiry of the Scheme.
(iv) The Scheme as such was not invalid in law.
(iii) However, if those employees had accepted the ex gratia payment or any
other benefit under the Scheme, they could not have resiled therefrom.
It is not in dispute that the Bank had not accepted the offer of the
Applicant before he withdrew therefrom. It is also not in dispute that no such
communication was ever made to the Applicant. It is furthermore not in dispute
that the Applicant was entitled to a sum of Rs. 10,50,000/- by way of benefits
in terms of the Scheme. The said amount had not been offered to the Applicant
Even out of the total amount of leave encashment of Rs. 14,459.21, a sum of
Rs. 13,037/- was deducted and only a sum of Rs. 1,422.21 was credited in the
account of the Applicant on 9.03.2001. The Bank accepts that the Applicant had
never been communicated that the said amount was being deposited in terms of
the Scheme. When questioned as to why the amount of Rs. 10,50,000/- or any
other amount to which the Applicant might have been entitled to by way of the
Scheme had not been offered to the Applicant, the learned counsel for the Bank
faintly suggested that the same could not be done as the Applicant closed his
bank account. We cannot accept such contention. It is not a case where after
the expiry of the Scheme, an employee requested the Bank to be permitted to
withdraw from option.
The only question which, therefore, arises for consideration is as to
whether the Applicant herein waived his right.
Waiver of a right implies his knowledge of the existing right. A person
cannot be said to have waived his right unless it is established that his
conduct was such so as to enable the Court to arrive at a conclusion that he
did so with knowledge that he had a right but despite the same acted in such a
manner which would imply that he has waived the same.
The Applicant in the instant case not only withdrew his offer before the
same was accepted, he even filed a writ petition when he came to know that the Bank
had unilaterally accepted offers of certain employees despite the same having
been withdrawn and terminated their services with immediate effect. As noticed
hereinbefore, the judgment in O.P. Swarnakar (supra) was delivered on 17th
December, 2002. Immediately thereafter, he issued a notice that he be permitted
to report for duty as he had not accepted the retiral benefits. His
representation went unheeded. He thereafter sent legal notices on 22nd
February, 2003 and 28th March, 2003. The stand of the Bank at all material
times was and still is that a sum of Rs. 14,459.21 was paid to him by way of
leave encashment of 31 days upon deduction of income tax therefor. But, it is
accepted that at no point of time he had been told that the said amount had
been deposited in his account as a part of benefit under the Scheme. Even,
there had been no communication to the Applicant by the Bank that he is being
paid out of the total leave encashment of Rs. 14,459.21, after deducting a huge
sum of Rs. 13,037/-, a sum of Rs.
1,422.21. We fail to understand as to how out of the said amount of Rs.
14,459.21, a sum of more than Rs. 13,000/- could be deducted by way of
income tax. Leave encashment benefit is one of the additional benefits. The
main benefit of the Scheme indisputably was the ex-gratia payment. An employee
even if continued in service would have been entitled to the additional
benefits which are in the nature of terminal benefits.
It is also beyond anybody's comprehension as to why despite expiry of about
five years the main benefit of the Scheme or in any event the total benefit
amounting to Rs.10,50,000/- to which the Applicant was otherwise entitled to in
terms of the Scheme had not been paid to him.
The Bank is a 'State' within the meaning of Article 12 of the Constitution
of India. We expect fair and better dealings from a 'State' vis- `-vis its own
employees. It is not for an employee who did not accept that his offer had
validly been accepted in terms of the Scheme could not have been expected to
approach the Bank for payment of his dues. It was for the Bank to make such an
offer. The Scheme says so. The law in this behalf is also clear. He had not
even been offered his salary or notice pay.
In a case of this nature, the court is entitled to take into consideration
the entire facts and circumstances of the matter and for that purpose the
conduct of the Bank is also relevant.
We, therefore, in the peculiar facts of this case, are not in a position to
accept that by reason of such a deposit of a meager sum of Rs. 1,422.21 in
respect whereof the applicant had no knowledge, and in relation whereto he had
not been informed, and only because he closed the account so as to prevent the
Bank from depositing any further amount in his account cannot be said to have
waived his right to continue in service.
The learned counsel appearing on behalf of the Bank relied upon the Singh
Bawa and Another [(2004) 4 SCC 484]. Therein, having regard to the facts and
circumstances of the case, this Court clearly came to the conclusion:
"8. From the averments herein, it is clear that Respondent 1 had two
savings bank accounts Nos.
4775 and 4777. He had withdrawn his option on 22-12-2000 and yet without any
objection he receives three credits in his account on 27-12- 2000, 25-1-2001
and 29-1-2001 on account of salary (including notice pay). Thereafter, he
repays his car loan; invests Rs 30,000 in PPF and Rs 1,42,406.40 in fixed
deposit for three years, which is a long-term investment. Therefore, the
principle of estoppel extensively discussed by this Court in the case of Bank
of India v. O.P. Swarnakar applies to the facts herein. The conduct of
Respondent 1 indicates his knowledge about payments in his accounts; that he
never objected to such payments and that he had appropriated the amounts for
his benefit. Therefore, he cannot resile from the Scheme." (Emphasis
supplied) The said decision has no application to the fact of the present case.
The conduct of the Applicant herein does not indicate any knowledge about
the payment in his account or his willful appropriation thereof as to
constitute a waiver. The Applicant had contended that even the Bank had acted
in a discriminatory manner as in the account of certain employees some deposits
had been made but in respect of others, no such deposits had been made. The
said allegation also has not been denied.
For the reasons aforementioned, this application is allowed. The Bank is
hereby directed to permit the Applicant to join his duties. He is entitled to
be reinstated in service with all consequential benefits and continuity in
service except for the period during which he was on leave. However, in the
facts and circumstances of this case, we do not intend to award any interest on
the said sum or any costs against the Respondent. The Respondent shall,
however, be entitled to deduct the amount actually paid to the Applicant or
payable in his account, if any.