High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.11..2009CORAM:THE HONOURABLE MR. JUSTICE R.SUDHAKARW.P. No.16913 of 2003G. Krishnamurthi ...Petitioner Vs.1.The Chairman and Managing Director, Bank of Baroda,Central Office: Bandra Kurla Complex,Bandra East, Mumbai 400 051.2. Mr. G. Chakrabarthy, General Manager(HRM & G.A.), Bank of Baroda, Bandra Kurla Complex, Bandra (East), Mumbai 400 051.3.The Asst. General Manager,Bank of Baroda,Regional office, 'Sun' House,C.P. Ramaswamy Road,Alwarpet, Chennai.18.4. The Chief Manager,Bank of Baroda,Chennai Main Branch,TIAM House, 28 Rajaji Salai,Chennai.1. ... RespondentsPrayer: Petition filed under Article 226 of the Constitutionof India to issue a Writ of Certiorarified Mandamus calling forthe records of the respondents herein culminated in the 2ndrespondent's proceedings in BCC:HRM:IL:95/C-27/4456, dated3.6.2003, quash the said proceeding as it is arbitrary, unjustand against all cannons of natural justice, and consequentlydirecting the respondents herein to permit the petitioner inservice at the appropriate place with continuance of service andbackwages within the time stipulated. For Petitioner : Mr. G. Thangavel For Respondents : Mr. K.S.V.Prasad https://hcservices.ecourts.gov.in/hcservices/ ORDERThe prayer in the writ petition is to quash theproceedings of the 2nd respondent dated 3.6.2003 and consequently,direct the respondents to permit the petitioner in service atthe appropriate place with continuance of service and backwages. 2. In this writ petition, the petitioner ischallenging the letter of the second respondent dated 3.6.2003,which is a reply given by the Bank in response to therepresentation dated 17.4.2003. For better appreciation of thecase, the letter dated 17.4.2003 is extracted hereunder:-"Sub : Mis-appropriation of my PF dues.I am an employee of Bank of Baroda of ChennaiMain Branch. My PF dues has been adjusted towards myhousing loan dues. I have enclosed the full detailswith necessary documentary evidence where the Bank hasconfessed in writing the criminal act. Regarding this I have filed a criminalcomplaint in 7th Metropolitan Magistrate, George Town,Chennai. Magistrate has ordered the B-1 North BeachInspector of Crimes to conduct a deailed enquiry andreport the same. FIR has been registered against theBank of Baroda under IPC 420. The crime Inspectorcouple of days back ordered the Chief Manager ofChennai Main Branch to produce the PF records from thehead office. This is the first time in the history ofBanking in India, an employee has booked a NationalizedBank under Criminal Procedure Code. Please conduct adetailed enquiry about this criminal act committed byBank of Baroda." The Bank in response replied and countered the representation andrefuted all the allegations and the gist of the reply is asfollows:-"It seems that you have presently taken upthe issue of recovery of PF amount ignoring all thathas transpired in the matter of your resignation fromBank's services, belatedly, in 2002 with intention toavoid payment of the remaining housing loan dues andother dues payable by you to the Bank. You are advisedto repay the housing loan dues of Rs.30,877.82 andsettle the housing loan at the earliest. In the facts and circumstances aforesaid, you arehereby advised to desist from making false allegationsagainst the Bank's Officials and the Bank."3. The petitioner now seeks to quash this letter dated3.6.2003 and permit him to continue in service of the Bank with https://hcservices.ecourts.gov.in/hcservices/ all other benefits. The representation dated 17.4.2003 as hasbeen extracted above clearly refers to an alleged criminalcomplaint against the bank for misappropriation of thepetitioner's amount towards housing loan dues which according tothe petitioner is a criminal act. The bank from its side, hasgiven a detailed reply wide letter dated 3.6.2003 refuting theallegations and setting out the factual details which led to therecovery of the Housing loan amount consequent to the resignationof the petitioner in the year 1982. The Bank requested thepetitioner to desist from making such false allegations. It isnot clear as to how any relief as prayed for can be granted tothe petitioner by quashing the reply letter dated 3.6.2003.There is no basis for the relief claimed. 4. In any event, the writ petition having beenadmitted and since a counter has been filed by the 4threspondent for and on behalf of all the respondents, this writpetition is taken up for final disposal on merits. 5. The brief facts which lead to the filing of thewrit petition is as follows:-(i) The writ petitioner joined as a typist on 2.7.1970in the respondent Bank at Bombay and was transferred to Chennaion 8.2.1982. On 19.7.1982, he tendered his resignation to theBank by letter dated 19.7.1982 stating that he should be relievedon 18.8.1992. He has stated in the letter dated 19.7.1982 thathe had availed housing loan in the year 1976 and the outstandingbalance is Rs.31,000/- and that should be adjusted from out ofprovident fund and gratuity amount and the balance amount to beadjusted from his Savings Bank Account No.6592 held at the MountRoad Branch. He also requested the Bank to release the originaldocuments after adjusting the loan amount. Petitioner furtherrequested the Bank to permit him to encash unavailed leave tillthe date of resignation. On the same day i.e. 19.7.1982, thepetitioner wrote a letter to the Trustee of Provident Fund, Bankof Baroda, stating that he has submitted his resignation andstated that the balance amount of Rs.31,000/- towards housingloan can be adjusted from the P.F. Amount. The petitioner alsoinformed the Bank of Baroda Employees Co-operative Societies thathe has resigned the job. (ii) In its letter dated 27.7.1982, the Bank hasstated that the resignation will be accepted on clearing theoutstanding balance amount in the housing loan account and allother dues payable to the Bank. After the Bank's reply letterdated 27.7.1982, there is no correspondence between thepetitioner and the Bank for more than eight years. This isevident from the documents filed in the typeset of papers filedby the petitioner as well as the respondent Bank. On 30.7.1990,(i.e.) after nearly eight years, the petitioner addressed aletter to the Chief Manager, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ " Please refer your letter dated 10.7.1990. I assure you, Sir, that I am trying to liquidatethe outstanding balance of Housing Loan as early aspossible. In this connection, I enclosing a chequeNo.788560, dated 10.7.1990, drawn on IOB for Rs.500/-to be credited to my Housing Loan Account. Kindlyacknowledge. I am once again requesting you that you canconsider my case by reinstating my service onHumanitarian grounds, thus you can solve all myproblems. Hoping to hear from you a favourable reply soon."6. Again, on 23.6.1992 i.e. after eight years,petitioner writes another letter to the Chief Manager of the Bankgiving details of the Housing Loan availed and how the amount hasbeen adjusted. In this letter, the petitioner states that he isstruggling for his day today existence and therefore, to enablehim to repay the balance of housing loan, he prayed that heshould be reinstated into service on humanitarian grounds. Thisis followed by a series of correspondence between the Bank andthe petitioner. Most of the correspondence relates to settlingof the Housing Loan amount from the P.F. Account and gratuityamount etc. In effect, the petitioner attempted to inform theBank that he has almost cleared the Housing Loan. In order toenable him to pay the balance amount he requested that he shouldbe re-instated into service as he does not have any other sourceof income. Based on the complaints dated 17.4.2003 addressedto the Member Secretary, Banking, Ministry of Finance and thereply of the Bank dated 3.6.2003, which has already been referredto above, the present writ petition has been filed to quash thereply letter dated 3.6.2003 and for consequential benefits viz.,re-instatement of service with backwages. 7. Learned counsel for the petitioner submitted thatthe Bank in response to the resignation letter has clearly statedthat the resignation cannot be accepted untill the Housing Loanis cleared in its entirety. Since the loan is not settled infull, there is no termination of service. The petitionercontinues to be in service and therefore, he should be reinstatedwith consequential benefits. Petitioner relied upon thedecision of the Apex Court reported in Srikantha S.M. - Vs. -Bharath Earth Movers Ltd. (CDJ, 2005 SC 786), wherein, it hasbeen held as follows:-" The Court said:" 23. It is now settled legal position thatunless the employee is relieved of the duty afteracceptance of the offer of voluntary retirement orresignation, jural relationship of the employee and the https://hcservices.ecourts.gov.in/hcservices/ employer does not come to an end. Since the orderaccepting the voluntary retirement was a conditionalone, the conditions ought to have been complied with.Before the conditions could be complied with, theappellant withdrew the scheme. Consequently, the orderaccepting voluntary retirement did not becomeeffective. Thereby no vested right has been created infavour of the respondent. The High Court, therefore,was not right in holding that the respondent hasacquired a vested right and, therefore, the appellanthas no right to withdraw the scheme subsequently."24. In J.N.Srivastava – Vs. - Union of Indiaand another (1998) 9 SCC 559, a notice of voluntaryretirement was given by an employee on October 3, 1989which was to come into effect from January 31, 1990.The notice was accepted by the Government on November02, 1989 but the employee withdrew the notice vide hisletter dated December 11, 1989. It was held thatwithdrawal was permissible though it was accepted bythe Government, since it was to be made effective fromJanuary 31, 1990 and before that date it was withdrawn. 25. In Shambhu Murari Sinha – Vs. - Project& Development India and Another (Shambhu Murari Sinha1), (2000)5 SCC 621) an application for voluntaryretirement of an employee dated October 18, 1995 wasaccepted by the employer vide letter dated July 30,1997 with further intimation that " release memo alongwith detailed particulars will follow". The workmanwas actually relieved on September 26, 1997. In themeanwhile, however, by a letter, dated August 7, 1997,he withdrew the application dated October 18, 1995, bywhich he sought voluntary retirement. It was held thatthe effective date of voluntary retirement wasSeptember 26, 1997 and before the date it waspermissible for the workman to withdraw his retirement.The appellant was, therefore, held entitled to remainin service. 26. In Shambhu Murari Sinha – Vs. - Project& Development India and Another (Shambhu Murari SinhaII), (2002)3 SCC 437) the view taken in Shambhu MurariSinha 1 was reiterated. It was held that whenvoluntary retirement was withdrawn by an employee, hecontinued to remain in service. The relationship ofemployer and employee did not come to an end and theemployee had locus penitentiae to withdraw his proposalfor voluntary retirement. He was, therefore, entitledto rejoin duty and the Corporation was bound to allowhim to work." https://hcservices.ecourts.gov.in/hcservices/ He therefore pleaded that the master and servant relationshipcontinues and hence, petitioner is entitled to reinstatement. 8. A counter affidavit has been filed by the respondentBank. Mr. KVS. Prasad, appearing for respondent referred tothe various documents filed by them and stated that afterresignation on 19.7.1982 and after the reply by the Bank on27.7.1982, the petitioner did not attend the Bank except for oneday. For the first time, in the year 1990, he made arepresentation for re-instatement i.e. after more than eightyears. Assuming without admitting that there was no acceptanceof resignation, the petitioner had abandoned his post andtherefore, he cannot claim that he should be reinstated intoservice. He has to suffer the consequence of his act ofabandoning his post, after submitting his resignation andindicating that this resignation should be given effect from18.8.1992.9. It is based on petitioner's letters, the HousingLoan dues have been adjusted from various accounts and someamount is still due from the petitioner. The correspondencebetween the petitioner and the Bank relates only to settlement ofHousing Loan. The correspondence of the year 1992 also goes toshow that the petitioner was eager to settle the balanceoutstanding housing loan. He requested for re-instatement intoservice on humanitarian grounds. There is no explanation as towhy he had stayed away from the Bank for more than eight years.There is not even a scrap of paper to show that petitioner hassome connection with the Bank between the period 1982 to 1990.This long period of silence is unexplained and therefore, it isclear that petitioner has abandoned his post. 10. By the conduct of the petitioner submitting hisresignation and requesting the bank to settle his dues from theprovident fund account and gratuity amount and by requesting theBank to adjust the balance amount from the savings account, it isclear that both parties proceeded on the basis that theresignation has been given effect to .11. Learned counsel for the respondent Bank submitsthat the petitioner ceased to be an employee of the Bank by hisown conduct and abandoned the post and therefore, he cannotclaim re-instatement. Respondent counsel relied upon thefollowing decisions.(i)Dr. Lakhte Mustaf Kazmi – Vs. - State of U.P. And another(2004 LAB I. C.30)(ii)K.S. KASHYAP – Vs. - Union of India and others (2004LAB.I.C.514)(iii) Abdul Kalam Sheikh – Vs. - Registrar, MLS Universityand another ( 2002 LLR 190) https://hcservices.ecourts.gov.in/hcservices/ (iv) Kshetriya Sri Gandhi Ashram, Magahar – Vs. - Ram SamujhMaurya and another (1990 LAB.I.C. 1406);(v) Shahoodul Haque – Vs. - The Registrar, Co-operativeSocieties Bihar and another (AIR 1974 S.C. 1896);(vi) M/s. Jeewanla (1929) Ltd., Calcutta – Vs. - Its Workmen(AIR 1961, S.C. 1567);(vii) Krishnan P. - Vs. - Management, Jonas Woodhead and Sons(India) Ltd., Madras and another (2003) 3,LLJ 686); and(viii) Dr.C. Chendroyaperumal – Vs. - National Institute ofPort Management and another ( 2006 W.L.R. 820).to state that once the person abandons his post, the question ofre-instatement does not arise. This aspect of the case is notdisputed by the counsel for the petitioner. There is noexplanation for the long period of silence. 12. From the factual matrix of the case, it is clearthat the petitioner wanted to resign his post. He submitted hisresignation and consequent thereon, he addressed the Bank tosettle all the outstanding loan and liabilities out of Providentfund and gratuity amount and that has almost been done excepta portions which remains unpaid. Even in the letter dated13.7.1990 addressed to the Bank, the petitioner paid a sum ofRs.500/- towards Housing Loan account and thereafter renewed hisrequest for re-instatement into service. There is a long gap ofeight years between the banks' reply dated 27.7.1982 and thepetitioner's letter dated 13.7.1990 requesting for re-instatement, which has not been explained by the petitioner. Inthe letter dated 13.7.1990, the petitioner seeks re-instatement,thereby, he admits that he is not in the banks service for morethan eight years. After submitting his resignation letter dated19.7.1982, he has not proceeded further. The petitioner hasabandoned his service without any just cause. Once thepetitioner has submitted his resignation letter and not attendedthe Bank , he cannot claim any right by way of re-instatement.There is no order of dismissal or removal from service to seekreinstatement. 13. Here is the case, where the petitioner hasresigned and voluntarily withdrawn from attending the Bankconsequent to the letter of resignation. He prayed forsettlement of all dues and liabilities and clearly instructed theBank to do so. Therefore, there is a clear understanding betweenthe petitioner and the respondent Bank that the resignation hasbeen given effect in its entirety. Further admittedly, amountsare due towards Housing Loan for which, the petitioner is seekingthe Bank's indulgence for re-instatement so as to enable him torepay the loan. This is evident from the letter dated 23.6.1992and it explained the position. The petitioner therefore cannotclaim that he should be treated as an employee. Petitioner isnot in service of the Bank on his own volition and thereforethere is no question of re-instatement into service. Such asituation does not arise in the present case. Further more, the https://hcservices.ecourts.gov.in/hcservices/ petitioner has remained silent from the year 1982 till 1990 andhas raised the issue of re-instatement after eight years based onsome correspondences. The petitioner is now trying to quashthe reply letter dated 3.6.2003 and for consequential benefits,which is not an order by which petitioner can claim re-instatement. There is no cause of action for the petitioner toraise such a plea and the claim has no basis. By threat ofcriminal case, the petitioner is trying to get reinstated.Further, the plea of the petitioner cannot be accepted by thisCourt only on the ground of delay and laches. The reply letterof the second respondent dated 3.6.2003 will not give a cause ofaction for the writ petitioner to claim the benefit of re-instatement as it is a reply to the representation with regard tothe allegation of criminal misconduct, which has been refuted bythe Bank outright. Therefore, the prayer in the writ petitionitself is misconceived. 14. The decision of the Apex Court reported inSrikantha S.M. - Vs. - Bharath Earth Movers Ltd. (CDJ, 2005 SC786), which is relied upon by the petitioner, relates to thecase of withdrawal of resignation letter before acceptance undervoluntary retirement scheme. The above said decision does notapply to the facts of the present case as this court is notdealing with the case of voluntary retirement. 15. Viewed from any angle, there is absolutely nomerit in the writ petition. The relief sought for cannot begranted by this Court by quashing the letter of reply of thesecond respondent-Bank in response to the representation of thepetitioner. No case much less prima facie case, has been madeout by the petitioner to grant the relief sought for. Hence, thewrit petition is dismissed. Consequently, WP.M.P.No. 43880 of2003 is also dismissed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarraTo1. The Chairman and Managing Director, Bank of Baroda,Central Office: Bandra Kurla Complex,Bandra East, Mumbai 400 051.2. Mr. G. Chakrabarthy, General Manager(HRM & G.A.), Bank of Baroda, Bandra Kurla Complex, Bandra (East), Mumbai 400 051. https://hcservices.ecourts.gov.in/hcservices/

3. The Asst. General Manager,Bank of Baroda,Regional office, 'Sun' House,C.P. Ramaswamy Road,Alwarpet, Chennai.18.4. The Chief Manager,Bank of Baroda,Chennai Main Branch,TIAM House, 28 Rajaji Salai, Chennai.1.+ 1 cc to Mr.G.Thangavel,Advocate,SR.59727+ 1 cc to Mr.K.S.V.Prasad,Advocate,SR.59386 WP No. 16913 of 2003KA(CO)EM/27.1.10