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2005 Supreme(SC) 1429
2005(7) Supreme 707
Supreme Court of India
(From Punjab and Haryana High Court)
H.K. Sema, S.B. Sinha & A.K. Mathur, JJ.
Punjab and Sind Bank & Ors. —Appellants
versus
Mohinder Pal Singh & Ors. —Respondents
I.A.No. 7
In
Civil Appeal No. 8476 of 2002
Decided on 28-10-2005
Counsel for the Parties :
For the Appellants : Jagat Arora, Rajiv Nanda, Rajat Arora and Ms. Ritu Arora, Advocates.
For the Respondents : Ms. Meenakshi Arora and Shailendra Bhardwaj, Advocates.
Headnote:Service Law—Respondent-applicant was working as a cashier-cum-clerk in appellant Bank—Bank adopted a scheme “the Punjab and Sind Bank Employee’s Voluntary Retirement Scheme 2000" which was in operation from 1.12.2000 to 31.12.2000—Employee opting voluntary retirement was entitled to ex-gratia payments and other benefits under scheme—Applicant opted to avail benefit of scheme and filed application on 15.12.2000—He however withdrew said offer on or about 22.12.2000—Bank’s plea in a writ before High Court that applicant was relieved from duties on 28.1.2001 —Bank had not accepted offer of applicant before he withdrew it—Applicant was entitled to a sum of Rs. 10,50,000/- as benefit under scheme which had never been offered to applicant—Only a meager amount Rs. 1422 was deposited in applicant’s saving A/c in bank towards leave encashment balance—Applicant by that act of bank could not be said to have waived his right to continue in service—Bank was liable to be directed to permit applicant to join his duties and applicant was entitled to be reinstated in service with all consequential benefits and continuity in service.
Held : 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 till date. 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. (Paras 9 to 11)
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. (Para 16)
Order
Application of a decision of this Court in Bank of India and Others Vs. O.P. Swarnakar and Others [(2003) 2 SCC 721] falls for consideration in this application.
2. Before, however, we advert to the said question, we may notice the admitted facts.
3. 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 Employees’ Voluntary Retirement Scheme, 2000" (for short “the Scheme”) which was to remain in operation from 1.12.2000 to 31.12.2000. In term 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 rules.
(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.”
4. 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.
5. 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.
6. 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.
7. 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.
8. 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
