Full Judgment Text
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION NOS.11792-11793/2012 (S-RES)
R
BETWEEN :
1 MRS VIDYA SEETHARAM
W/O LATE K SEETHARAM
AGED ABOUT 53 YEARS
2 SMT POOJA S,
D/O LATE K SEETHARAM
AGED ABOUT 27 YEARS.
PRESENTLY RESIDING AT
NO.92/1, 11TH B MAIN, 18TH CROSS
REVENUE LAYOUT, PADMANABHA NAGAR
BANGALORE-560061. ...PETITIONERS
(BY SRI:S S PADMARAJ, ADVOCATE)
AND :
CANARA BANK,
REP BY ITS CHAIRMAN & MANAGING
DIRECTOR, HEAD OFFICE
112, J C ROAD,
BANGALORE-560002. ...RESPONDENT
2
(BY SRI:T P MUTHANNA , ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ATICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ACTION AND ORDERS PASSED BY THE
RESPONDENT VIDE ANNEX-E DTD.22.2.12 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Petitioners have sought for quashing of communication
dated 22.02.2012 addressed to the Counsel for the petitioners,
informing that the Voluntary Retirement under Special Scheme of
the deceased husband of first petitioner is not accepted, as such, the
petitioners are not entitled for terminal benefits under the Special
Voluntary Scheme. Petitioners have also challenged Clause 7.7 of
the Special Voluntary Retirement Scheme, produced at Annexure-
A.
2. It is not in dispute that, the husband of the first petitioner
was appointed as a Clerk and thereafter he was promoted and
3
ultimately he was a Senior Manager. While he was working as a
Senior Manager, several Banks introduced Special Voluntary
Scheme. Accordingly, even respondent – Bank also issued a
Special Voluntary Scheme by issuing a communication dated
11.12.2000. The said Scheme was valid only for a period of one
month i.e., upto 31.01.2001. The employees, who had put in 15
years of actual service or who were 40 years, were eligible to seek
for Special Voluntary Retirement. Accordingly, husband of the first
petitioner also made an application on 15.01.2001. He had put in
about more than 37 years of service in the Bank and was also 40
years. He had qualified as per the eligibility, however, in terms of
Clause 7.7, the power was conferred on the Competent Authority to
accept or reject the request of the voluntary retirement. The
husband of the first petitioner did not receive any communication
in terms of Clause 7.7 and while he was on duty, he died on
27.02.2001 and the respondent – Bank made payments to the legal
heirs of the deceased employee in terms of the Regulations
4
applicable to the employee, who dies while he was in service .
3. These petitioners made a claim alleging that they are
entitled for the benefit under the Special Voluntary Scheme for
which the first petitioner's husband had made an application. The
said request was turned down by the Bank in terms of the
impugned communication dated 22.02.2012 produced at Annexure-
E, as against which, these writ petitions are filed.
4. Sri.Padmaraj, learned Counsel for the petitioners
submitted that, in terms of Annexure-A, the eligibility criteria was
either the employee must have put in 15 years of actual service or
40 years of age at the time of making application and the said
application to be made within 60 days. The deceased husband of
the first petitioner had put in 15 years of service and he was also
more than 40 years, there was no other disqualification under the
Scheme. Though Clause 7.7 confers power on the Competent
Authority either to accept or reject and till such acceptance is
5
communicated to the employee concerned, no deemed acceptance
of the voluntary retirement is provided. However, learned Counsel
submitted that, same is contrary to the constitutional features, as it
gives unriddle arbitrary discretion in the hands of the Authority to
reject any application. Even otherwise, when an application is
filed for voluntary retirement and the employee dies, thereafter the
application could not have been rejected. Even any rejection
requires communication to the person concerned, however, the
communication issued at Annexure-R1 produced along with the
objections is not to the address of the petitioners, but it is addressed
to the Bank. In the application for voluntary retirement, the
deceased husband of the first petitioner had given the address and it
is not sent to the said address, as such, there is no communication
and claimed that the Bank should have treated the case of the
deceased husband of the first petitioner as voluntary retirement
rather than death while in employment.
6
5. He relied on the judgment of this Court reported in ILR
2002 KAR 4585 in the matter of R.Jyothi -vs- The General
Manager, Dena Bank and Others and submitted that, this Court in
identical circumstances, has held that, if a person dies while he was
in service after opting for voluntary retirement, death will not come
in the way of acceptance and accordingly, in such case directed to
treat it as voluntary retirement and termination of service due to
death.
6. On the other hand, learned Counsel for the respondent -
Bank submitted that, the scheme was special scheme existed only
for short period of one month and even if the application is made,
discretion was with the Management, since thousands of
applications were received, scrutiny took quite some time and
Clause 7.7 makes it clear that till it is accepted, it cannot be treated
as voluntary retirement and after the death of the husband of the
first petitioner, petitioners have received the benefits in pursuance
of the Regulations in case of death of an employee while he was in
7
service, as such, the petitioners are not entitled for the benefit
under the Special Voluntary Retirement Scheme. He also
submitted that, the judgment of this court was taken in appeal to
the Supreme Court and the Apex Court has clarified that the
judgment of this Court is only in particular case and it cannot be
treated as law declared and submitted that, under the Regulations,
petitioners are not entitled, as such, benefit cannot be extended.
7. He also submitted that, since the deceased husband of the
first petitioner had died, his case was not considered for voluntary
retirement.
8. It is not in dispute that, the deceased husband of the first
petitioner had made an application for voluntary retirement under
the Special Scheme. It is also not disputed by the learned counsel
for the respondent - Bank that, he had not suffered any ineligibility.
He was 40 years and he had also completed 15 years of actual
service. Further, it is also not the case of the Bank that, there was
8
any enquiry or proceedings pending against the deceased husband
of the first petitioner. In terms of Annexure-A, deceased husband
of the first petitioner was eligible to be considered for special
voluntary retirement. Even according to the Bank, the reason for
rejection of his application is not that he was ineligible, since he
had died and his legal heirs had accepted the benefits on account of
death, his application was rejected. Admittedly, the application of
the deceased husband of the first petitioner was rejected on
28.03.2001 i.e., much after the death of the employee.
9. If the application was rejected on the ground that, he is
either ineligible or Bank had not found it feasible to accept, it could
have used its discretion, but application is not rejected either on the
ground of ineligibility or on the ground of feasibility, but it is
rejected only because the husband of the first petitioner died.
10. Death should not come in the way of considering the
voluntary retirement because the voluntary retirement was to be
9
considered as on the date when the deceased employee had made
an application. May be because he died, but there was no
impediment to consider the application, hence, his application
should not have been rejected on the ground of death. Though the
Apex Court has observed that, the decision of this Court is between
the parties, this Court in said case while considering the similar
circumstances has observed as under:
“No doubt, the language employes in Clause
10.8 of the Scheme referred to above provided for
payment of compensation payable to the employee of
the Bank to the person nominated to receive such
amount in the event of death of such of an employee, if
his request for voluntary retirement under the Scheme
has been accepted by the Bank. From the provision
referred to above, it is not possible to infer that the
Bank is prevented from considering the application of
an employee, who after making an application for
voluntary retirement and before it is considered expires,
his request for retirement under the Scheme cannot be
considered. No doubt, retirement presupposes the
existence of a person who can be retired from service.
But, if the object of the Scheme is kept in mind, as
noticed by me earlier, the benefit of the Scheme has to
be extended to such of those employees who made a
request for voluntary retirement under the Scheme not
withstanding the fact that such an employee expires
10
before his request for retirement under the Scheme is
taken up for consideration. The employee who makes
an application fore retirement under the Scheme has no
control with regard to the date on which his request
would be considered by the Bank. But, the fact remains
that by making an application for voluntary retirement
under the Scheme, he gives his option for retirement
under the Scheme. Further, it is also relevant to
pointed out that there is no provision in the scheme
which prohibits the Bank from considering the
applications of an employee who expires before his
application was considered by the Bank. Under these
circumstances, if the application filed by the employee
of the Bank seeking voluntary retirement cannot be
rejected on merits, on consideration of such application
by the Bank, in my view as notice by me earlier, the
death of an employee should not make any difference so
far as consideration of the application filed seeking
voluntary retirement by such employee. The legal heirs
of such an employee should be held to be entitled for
all the benefit that the deceased employee would be
entitled in law, if his application were to be considered
on merits. In my view, the words “under the scheme
has been accepted’ employed in Clause 10.8 of the
scheme referred to earlier, has to be understood as one
which accepted and acceptable in cases where an
employee who has made an application seeking
voluntary retirement expires before his application
comes up for consideration. Further, I am also,
unable to accept the submission of the learned counsel
appearing for the respondent – Bank that since the
claim of several other employees who have expire prior
to consideration of their application having been
rejected by the Bank the petitioner alone cannot be
11
given benefit of the scheme. In such a situation the
Bank being an instrumentality of the State which has an
obligation to act fairly and reasonable in all its
decision, obliges it to reconsider its earlier decision
and extend the benefit of the Scheme to the legal
heirs /nominees of such of those employees also’.
11. Having regard to the above circumstances, in my
opinion, merely because the applicant died, the application could
not have been rejected, as the applicant as on the date of
application was eligible to opt for voluntary retirement. Hence, the
deceased husband of the first petitioner had not suffered any
disqualification, and his application was rejected only on the
ground of death, hence, the petitioners are entitled for the benefit
under the Special Voluntary Retirement Scheme.
Accordingly, these petitions are allowed in part. Insofar as
grant of relief of Voluntary Retirement is concerned, it is held that
the petitioners are entitled for all the benefits under the Special
Voluntary Retirement Scheme for which the deceased husband of
12
the first petitioner became entitled and accordingly, the Bank shall
calculate the said benefit and after taking into consideration
whatever amount has been paid to the petitioners after adjusting
the same whatever remains to be paid, same may be paid as early
as possible not later than three months from the date of receipt of
copy of this order.
Sd/-
JUDGE
KNM/DP
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION NOS.11792-11793/2012 (S-RES)
R
BETWEEN :
1 MRS VIDYA SEETHARAM
W/O LATE K SEETHARAM
AGED ABOUT 53 YEARS
2 SMT POOJA S,
D/O LATE K SEETHARAM
AGED ABOUT 27 YEARS.
PRESENTLY RESIDING AT
NO.92/1, 11TH B MAIN, 18TH CROSS
REVENUE LAYOUT, PADMANABHA NAGAR
BANGALORE-560061. ...PETITIONERS
(BY SRI:S S PADMARAJ, ADVOCATE)
AND :
CANARA BANK,
REP BY ITS CHAIRMAN & MANAGING
DIRECTOR, HEAD OFFICE
112, J C ROAD,
BANGALORE-560002. ...RESPONDENT
2
(BY SRI:T P MUTHANNA , ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ATICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ACTION AND ORDERS PASSED BY THE
RESPONDENT VIDE ANNEX-E DTD.22.2.12 AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
Petitioners have sought for quashing of communication
dated 22.02.2012 addressed to the Counsel for the petitioners,
informing that the Voluntary Retirement under Special Scheme of
the deceased husband of first petitioner is not accepted, as such, the
petitioners are not entitled for terminal benefits under the Special
Voluntary Scheme. Petitioners have also challenged Clause 7.7 of
the Special Voluntary Retirement Scheme, produced at Annexure-
A.
2. It is not in dispute that, the husband of the first petitioner
was appointed as a Clerk and thereafter he was promoted and
3
ultimately he was a Senior Manager. While he was working as a
Senior Manager, several Banks introduced Special Voluntary
Scheme. Accordingly, even respondent – Bank also issued a
Special Voluntary Scheme by issuing a communication dated
11.12.2000. The said Scheme was valid only for a period of one
month i.e., upto 31.01.2001. The employees, who had put in 15
years of actual service or who were 40 years, were eligible to seek
for Special Voluntary Retirement. Accordingly, husband of the first
petitioner also made an application on 15.01.2001. He had put in
about more than 37 years of service in the Bank and was also 40
years. He had qualified as per the eligibility, however, in terms of
Clause 7.7, the power was conferred on the Competent Authority to
accept or reject the request of the voluntary retirement. The
husband of the first petitioner did not receive any communication
in terms of Clause 7.7 and while he was on duty, he died on
27.02.2001 and the respondent – Bank made payments to the legal
heirs of the deceased employee in terms of the Regulations
4
applicable to the employee, who dies while he was in service .
3. These petitioners made a claim alleging that they are
entitled for the benefit under the Special Voluntary Scheme for
which the first petitioner's husband had made an application. The
said request was turned down by the Bank in terms of the
impugned communication dated 22.02.2012 produced at Annexure-
E, as against which, these writ petitions are filed.
4. Sri.Padmaraj, learned Counsel for the petitioners
submitted that, in terms of Annexure-A, the eligibility criteria was
either the employee must have put in 15 years of actual service or
40 years of age at the time of making application and the said
application to be made within 60 days. The deceased husband of
the first petitioner had put in 15 years of service and he was also
more than 40 years, there was no other disqualification under the
Scheme. Though Clause 7.7 confers power on the Competent
Authority either to accept or reject and till such acceptance is
5
communicated to the employee concerned, no deemed acceptance
of the voluntary retirement is provided. However, learned Counsel
submitted that, same is contrary to the constitutional features, as it
gives unriddle arbitrary discretion in the hands of the Authority to
reject any application. Even otherwise, when an application is
filed for voluntary retirement and the employee dies, thereafter the
application could not have been rejected. Even any rejection
requires communication to the person concerned, however, the
communication issued at Annexure-R1 produced along with the
objections is not to the address of the petitioners, but it is addressed
to the Bank. In the application for voluntary retirement, the
deceased husband of the first petitioner had given the address and it
is not sent to the said address, as such, there is no communication
and claimed that the Bank should have treated the case of the
deceased husband of the first petitioner as voluntary retirement
rather than death while in employment.
6
5. He relied on the judgment of this Court reported in ILR
2002 KAR 4585 in the matter of R.Jyothi -vs- The General
Manager, Dena Bank and Others and submitted that, this Court in
identical circumstances, has held that, if a person dies while he was
in service after opting for voluntary retirement, death will not come
in the way of acceptance and accordingly, in such case directed to
treat it as voluntary retirement and termination of service due to
death.
6. On the other hand, learned Counsel for the respondent -
Bank submitted that, the scheme was special scheme existed only
for short period of one month and even if the application is made,
discretion was with the Management, since thousands of
applications were received, scrutiny took quite some time and
Clause 7.7 makes it clear that till it is accepted, it cannot be treated
as voluntary retirement and after the death of the husband of the
first petitioner, petitioners have received the benefits in pursuance
of the Regulations in case of death of an employee while he was in
7
service, as such, the petitioners are not entitled for the benefit
under the Special Voluntary Retirement Scheme. He also
submitted that, the judgment of this court was taken in appeal to
the Supreme Court and the Apex Court has clarified that the
judgment of this Court is only in particular case and it cannot be
treated as law declared and submitted that, under the Regulations,
petitioners are not entitled, as such, benefit cannot be extended.
7. He also submitted that, since the deceased husband of the
first petitioner had died, his case was not considered for voluntary
retirement.
8. It is not in dispute that, the deceased husband of the first
petitioner had made an application for voluntary retirement under
the Special Scheme. It is also not disputed by the learned counsel
for the respondent - Bank that, he had not suffered any ineligibility.
He was 40 years and he had also completed 15 years of actual
service. Further, it is also not the case of the Bank that, there was
8
any enquiry or proceedings pending against the deceased husband
of the first petitioner. In terms of Annexure-A, deceased husband
of the first petitioner was eligible to be considered for special
voluntary retirement. Even according to the Bank, the reason for
rejection of his application is not that he was ineligible, since he
had died and his legal heirs had accepted the benefits on account of
death, his application was rejected. Admittedly, the application of
the deceased husband of the first petitioner was rejected on
28.03.2001 i.e., much after the death of the employee.
9. If the application was rejected on the ground that, he is
either ineligible or Bank had not found it feasible to accept, it could
have used its discretion, but application is not rejected either on the
ground of ineligibility or on the ground of feasibility, but it is
rejected only because the husband of the first petitioner died.
10. Death should not come in the way of considering the
voluntary retirement because the voluntary retirement was to be
9
considered as on the date when the deceased employee had made
an application. May be because he died, but there was no
impediment to consider the application, hence, his application
should not have been rejected on the ground of death. Though the
Apex Court has observed that, the decision of this Court is between
the parties, this Court in said case while considering the similar
circumstances has observed as under:
“No doubt, the language employes in Clause
10.8 of the Scheme referred to above provided for
payment of compensation payable to the employee of
the Bank to the person nominated to receive such
amount in the event of death of such of an employee, if
his request for voluntary retirement under the Scheme
has been accepted by the Bank. From the provision
referred to above, it is not possible to infer that the
Bank is prevented from considering the application of
an employee, who after making an application for
voluntary retirement and before it is considered expires,
his request for retirement under the Scheme cannot be
considered. No doubt, retirement presupposes the
existence of a person who can be retired from service.
But, if the object of the Scheme is kept in mind, as
noticed by me earlier, the benefit of the Scheme has to
be extended to such of those employees who made a
request for voluntary retirement under the Scheme not
withstanding the fact that such an employee expires
10
before his request for retirement under the Scheme is
taken up for consideration. The employee who makes
an application fore retirement under the Scheme has no
control with regard to the date on which his request
would be considered by the Bank. But, the fact remains
that by making an application for voluntary retirement
under the Scheme, he gives his option for retirement
under the Scheme. Further, it is also relevant to
pointed out that there is no provision in the scheme
which prohibits the Bank from considering the
applications of an employee who expires before his
application was considered by the Bank. Under these
circumstances, if the application filed by the employee
of the Bank seeking voluntary retirement cannot be
rejected on merits, on consideration of such application
by the Bank, in my view as notice by me earlier, the
death of an employee should not make any difference so
far as consideration of the application filed seeking
voluntary retirement by such employee. The legal heirs
of such an employee should be held to be entitled for
all the benefit that the deceased employee would be
entitled in law, if his application were to be considered
on merits. In my view, the words “under the scheme
has been accepted’ employed in Clause 10.8 of the
scheme referred to earlier, has to be understood as one
which accepted and acceptable in cases where an
employee who has made an application seeking
voluntary retirement expires before his application
comes up for consideration. Further, I am also,
unable to accept the submission of the learned counsel
appearing for the respondent – Bank that since the
claim of several other employees who have expire prior
to consideration of their application having been
rejected by the Bank the petitioner alone cannot be
11
given benefit of the scheme. In such a situation the
Bank being an instrumentality of the State which has an
obligation to act fairly and reasonable in all its
decision, obliges it to reconsider its earlier decision
and extend the benefit of the Scheme to the legal
heirs /nominees of such of those employees also’.
11. Having regard to the above circumstances, in my
opinion, merely because the applicant died, the application could
not have been rejected, as the applicant as on the date of
application was eligible to opt for voluntary retirement. Hence, the
deceased husband of the first petitioner had not suffered any
disqualification, and his application was rejected only on the
ground of death, hence, the petitioners are entitled for the benefit
under the Special Voluntary Retirement Scheme.
Accordingly, these petitions are allowed in part. Insofar as
grant of relief of Voluntary Retirement is concerned, it is held that
the petitioners are entitled for all the benefits under the Special
Voluntary Retirement Scheme for which the deceased husband of
12
the first petitioner became entitled and accordingly, the Bank shall
calculate the said benefit and after taking into consideration
whatever amount has been paid to the petitioners after adjusting
the same whatever remains to be paid, same may be paid as early
as possible not later than three months from the date of receipt of
copy of this order.
Sd/-
JUDGE
KNM/DP