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CASE NO.: Review Petition (civil)  53 of 2003 Appeal (civil)  896 of 2002

PETITIONER: Punjab National Bank                                           

RESPONDENT: Virender Kumar Goel & Ors.                                        

DATE OF JUDGMENT: 21/01/2004

BENCH: CJI, H.K. SEMA & S.B. SINHA.

JUDGMENT: J U D G M E N T

I.A.NOS.1-2 AND 3 OF 2003 IN CIVIL APPEAL NOS.8488, 8490 and 8467 OF 2002 (IN C.A. 8467-8499 OF 2002)

Punjab & Sind Bank & Ors.                           \005\005 Appellants Versus

Mohinder Pal Singh  & Ors.                         \005\005. Respondents                                                                               Applicants     

I.A. NOS.1-22 OF 2003   IN  CIVIL APPEAL NOS. 7314-7335 OF 2002

State Bank of Patiala                      \005..  Appellant                                                                                   Versus

Varinder Kumar Sharma & Ors.                \005.  Respondents   

I.A.NO.15 OF 2003 IN  CIVIL APPEAL NO. 3553 OF 2002 AND I.A.NO.14 OF 2003 IN  CIVIL APPEAL NO.3556 OF 2002 (IN C.A. 3552-3560/2002)

Punjab National Bank & Ors.             \005Appellants       

Versus

Balbir Singh Chandpuri & Ors.           \005. Respondent                                                                                  SEMA,J.

Parties are heard.

In all these applications, the applicants sought to  review/clarify/modify the judgment and order of this Court rendered on  17.12.2002 in batches of Civil Appeals.                                  At the outset, we make it clear, that this Bench is not sitting on appeal

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over the judgment rendered by this Court on 17.12.2002.  Factual Matrix  leading to the filing of the present petitions is, therefore, obviated.              Before we advert further, we may at this stage, notice the operative  directions rendered in the judgment sought to be reviewed/clarified, strictly  relevant for the purpose of disposal of the present applications. This Court  inter alia held that the request of an employee seeking voluntarily retirement  would not take effect until and unless it was accepted in writing by the  competent authority and, therefore,  this Court upheld the right of the  employee to withdraw his option from voluntary retirement before the same  was accepted.       This Court further held in paragraphs 114 and 115 of the judgment as  under:-           "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.                                                            (Emphasis supplied)

Finally, in paragraph 130 of the judgment this Court issued the following  directions:- 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  has retired on attaining the age of superannuation, this order  shall not apply.                                      (Emphasis supplied)

2.      The appeals filed by the 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.  

In these applications, we are concerned with direction Nos. 1. 2 and 3. In the backdrop of the directions aforesaid, we now proceed to  examine the present applications.  Review Petition No. 53 of 2003 arising out of Civil Appeal No. 896 of  2002 has been filed by the Punjab National Bank.  The ground taken therein  is that respondent No.1, Virender Kumar Goel, has accepted the benefits  under the VRS and, therefore, the appeal filed by him against the judgment  and order of Uttaranchal High Court ought to have been dismissed, instead  of allowed, as contained in direction No.3.    The respondent herein had filed counter to the application.  It is  argued that the Review Petition is not maintainable as the applicant had  failed to show that there was an error apparent on record or that there was  discovery of some new or important matter which, after the exercise of due  diligence, was not within the knowledge or could not be produced by him at  the time of the hearing of the special leave petition.  It is further argued that  the respondent had applied for VRS on 17.11.2000, which was operative

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w.e.f. 1.11.2000 to 30.11.2000.  Thereafter, on 27.11.2000 the respondent  had submitted an application for withdrawal of his application dated  17.11.2000 during the warranty of the Scheme.  However, the bank accepted  the request of the respondent on 6.1.2001 after the period of the Scheme was  expired and on the same date the respondent had been relieved of his post. 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 utilised 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 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 Rs. three lakhs.  Again on  28.2.3001 he had withdrawn Rs. fifty thousand.    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 utilisation thereof would  squarely be covered by direction No.1 as noticed above.   Therefore, the  judgment dated 17.12.2002 is reviewed to the extent that the appeal arising  out of the judgment and order of the Uttaranchal High Court is dismissed  and the judgment of the High Court is upheld.     I.A.NOS.1-2 AND 3

       The question involved in I.A.Nos. 1-2 and 3 is as to whether the  applicants have accepted a part of the benefit under the VRS in terms of  direction No.1 or not.  I.A.No.1

       This I.A is filed by respondent Balbir Singh Chadha for clarification  and modification of the judgment dated 17.12.2002.  The ground taken in the  application is that the benefits under the scheme had been deposited in the  applicant’s defunct Bank account No.30 which has never been accepted nor  withdrawn by the applicant cannot be construed as  acceptance of part of the  benefits in terms of direction No.1.  In this case, the applicant applied for  VRS on 28.11.2000.  The applicant withdrew his application on 20.12.2000,  before the same was accepted by the bank.  Annexure-R5 is the photocopy  of Bank account no.30 in the name of the applicant.  It appears that on  13.3.2001 leave encashment of Rs.134650.82/- was deposited in his account.   Thereafter, the applicant had not operated the bank account. He had not  withdrawn the amount.       I.A.No.2         The employee Narinder Singh is the applicant.  The applicant applied  for benefit under the scheme on 1.12.2000.  He submitted an application on  25.1.2001 for withdrawal of his offer for VRS.  The ground taken in the  application inter alia is that on 26.3.2001 the respondent-bank herein  deposited leave encashment of Rs.119048/- in account No.5654 of the  applicant.  It is further contended that the applicant did not operate the  account thereafter.  He has neither withdrawn the amount nor utilised the  amount, unilaterally deposited in his account.  To substantiate his contention  the applicant has annexed photocopy of the account No.5654 (Annexure R- 3).  A perusal of the account would reveal that after 26.3.2001 the applicant  has not operated his bank account.  This fact is not denied by the bank.      I.A.No.3         The applicant is Mohinder Pal Singh, an employee of the bank.  He  applied for the benefit of the scheme on 1.12.2000.  On 27.12.2000 he made  an application for withdrawal of his offer for VRS.  The withdrawal  application was filed before the acceptance of the offer for VRS by the bank  authority.  The ground taken in this application is that the applicant did not  operate  bank account No.17611 after 21.4.2001.  To buttress his contention  the applicant has filed photocopy of bank account no.17611 (Annexure R-6).   It appears from there that the benefit under the scheme was deposited in the  bank account of the applicant on and from 30.4.2001 and the applicant had

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not operated his bank account thereafter.   In view thereof, it cannot be  construed that the applicant had accepted a part of benefit under the scheme  in terms of  direction No.1.         We make it clear that the sentence, "accepted a part of benefit under  the scheme", 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.                  In view of the discussion aforesaid, IA Nos. 1, 2 and 3 are allowed.   The applicants shall be reinstated into their posts with continuity in service,  back wages and all consequential benefits as are entitled to them under the  Law.  They shall, however, refund the entire amount deposited into their  bank accounts with interest accrued, if any, to the bank.  Full refund of the  amount by the applicants would be the condition precedent for  reinstatement.   Mr. Mukul Rohtagi learned ASG submits that applying the  principle of ’No Work No Pay’, back wages should not be allowed to them  on their reinstatement.  We are unable to accept this contention.  The  applicants were out of their jobs for no fault of theirs.  Even otherwise, party  in breach of contract can hardly seek for any equitable relief.        I.A.NOS. 1-22         These applications have been filed by the State Bank of Patiala for  clarification/directions.  The ground taken in these applications is that the  State  Bank     of Patiala is not a nationalised bank.  It is hundred per cent a  subsidiary of the State Bank of India.  The VRS scheme floated by the State  Bank of Patiala is in para-materia with the scheme floated by the State Bank  of India.  This Court in the judgment dated 17.12.2002 allowed the appeals  filed by the State Bank of India but nothing has been said about the appeals  filed by the State Bank of Patiala.  In the interregnum, a two-Judge Bench of  this Court, in which one of us (Sema, J) was a member, considered the same  question in Civil Appeal No. 2341 of 2003 arising out of Special Leave  Petition No. 23530 of 2002 entitled State Bank of Patiala   Vs.   Jagga  Singh, disposed of on 13.3.2003, where this Court after considering Clause  8 of the scheme floated by the State Bank of Patiala and Clause 7 of the  scheme floated by the State Bank of India, had held that the scheme floated  by the State Bank of Patiala is almost identical of the scheme floated by the  State Bank of India.  Accordingly, the appeal filed by the State Bank of  Patiala was allowed.  Review Petition was also dismissed on 3.12.2003.  In  view thereof, we clarify that our direction No.2, allowing the appeals filed  by the State Bank of India, would also include the appeals filed by the State  Bank of Patiala. In other words, the appeals filed by the State Bank of  Patiala are allowed in terms of our judgment dated 17.12.2002.        I.A.NOS. 14-15 I.A.No.14 has been filed by an employee of the bank sought to  clarify/modify our order dated 17.12.2002.  In this case, admittedly, the  benefit of the scheme had been withdrawn by the applicant on 27.2.2001.  The applicant had clearly admitted, in ground E of the application,  withdrawal of the amount so credited in his account, albeit compelling  financial constraints.   I.A.No.15 has been filed by an employee of the bank for  clarification/modification of our order dated 17.12.2002.  In para 6 of the  application, the applicant admitted that he had withdrawn and utilised the  benefit of the scheme credited in his account.  As noticed in our judgment, having accepted the benefit under the  scheme by withdrawing and utilisation thereof they are not permitted to  approbate and reprobate.   The net result is:

(a)     Review Petition No. 53 of 2003 is allowed but the costs of the  respondent shall be borne by the applicant.  

(b)     I.A.Nos. 1, 2 and 3 of 2003 are allowed.  

(c)     I.A.Nos. 1-22 of 2003 are allowed.

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(d)     I.A.Nos.14 and 15 of 2003 are dismissed.  

Petitions are disposed of in the above terms.