JUDGMENT
F.I. Rebello, J.
1. The petitioners are the legal representatives of late M. T. Fatnani who was employed with the respondent Bank and expired in office on 30th March, 2001 whilst on duty. The case of the petitioners is as under :
The respondent is a nationalised Bank and is an instrumentality of the State. By a circular bearing No. 235/2000 dated December 11, 2000 the respondent Bank introduced a Special Voluntary Retirement Scheme. The said Scheme was in operation for one month from 1st January 2001 to 31st January 2001. In terms of the said Scheme, employees who intended to seek voluntary retirement were required to submit duly completed applications as per the proforma annexed to the said circular. These applications were to be forwarded to their respective staff sections through their respective Branches/Offices where they worked, so as to reach the concerned staff section before 31st January, 2001.
Late M. T. Fatnani opted for the voluntary retirement Scheme and submitted his application in the prescribed form. The respondent Bank accepted the said application for Voluntary Retirement Scheme and this was communicated to late Fatnani. The decision to accept the application for Voluntary Retirement Scheme was taken on 13th March, 2001 and the same was communicated as required by the Scheme. In terms thereof, late Fatnani was to stand relieved w.e.f. 31-3-2001 after office hours.
As set out earlier, late Fatnani expired on 30th March, 2001. According to the petitioners, on 31st March, 2001 the respondent Bank deposited a sum of Rs. 3,17,392.42 paise as dues payable under the Voluntary Retirement Scheme, into the bank account of the deceased and a credit advice was issued by the Bank. The case of the petitioners is that on account of death of late Fatnani, the petitioners were unable to take any steps about any matter relating to the said deceased for almost one year. The petitioners then came to know that the amount credited in favour of late Fatnani payable to him under the Voluntary Retirement Scheme was kept in suspense. The petitioners personally met the officers of the respondent Bank and thereafter also entered into correspondence, however they did not receive any satisfactory reply.
By letter dated 27th August, 2002, the respondent Bank informed petitioners that the Ex gratia dues payable to late Fatnani under Voluntary Retirement Scheme would have become payable only after the date of Fatnani being relieved from the services of the Bank, and as he had expired before he was relieved from the services of the Bank he was not eligible for the benefits due under the Voluntary Retirement Scheme. The case of the petitioners is that thereafter they made several representations and also caused to be served a legal notice on 5th September, 2003 wherein they relied upon the judgment of the Karnataka High Court in the case of R. Jyothi v. The General Manager, Dena Bank, Mumbai and Ors., 2003(96) FLR 325. As there was no response, the present petition.
2. On behalf of the respondent Bank, reply has been filed by Mr. M. S. Muralee Manohar, the Manager – Staff Section (Officers – Mumbai City Circle). It is contended by the respondent Bank that late Fatnani was not entitled for the benefits under the Voluntary Retirement Scheme. It is set out that the relieving date of late Fatnani was to be 31st March, 2001 after office hours, and the same was communicated to late Fatnani vide proceedings dated 13th March, 2001. It is contended that before the effective date of the acceptance of Voluntary. Retirement Application, Fatnani expired, and as such, his application was lodged at the Bank’s end. This was communicated to the 1st petitioner vide the Bank’s letter dated 9-4-2001. It is contended by the respondent Bank that as the cessation of service of late Fatnani was on account of death and not on account of voluntary retirement under the Special Voluntary Retirement Scheme 2000, late Fatnani was not eligible for ex-gratia amount. The sum of Rs. 70,000/- was disbursed to his nominee under the Staff Welfare Measure. It is contended that the legal heirs are not entitled to claim simultaneously the benefits under the Staff Welfare Measures and those under the Special Voluntary Retirement Scheme 2000. It is contended by the respondent Bank that the legal heirs are estopped from claiming alleged VRS benefits as they had accepted benefits under the Staff Welfare Measures which are available only to the employees or to the legal heirs in case of death of the respective employee while in service. It is therefore contended that the decision of the Bank is not arbitrary, unreasonable and unjust. It is also pointed out that the statement that the Bank had deposited Rs. 3,17,392.42 paise in late Fatnani’s Bank Account is false and hence denied. The amount which is contended, was calculated on the presumption that late Fatnani would stand relieved under the Special Voluntary Retirement Scheme (SVRS) on 31st March, 2001. It is once again reiterated by the respondent Bank that as the cessation of service of late Fatnani was not on account of voluntary retirement, he was not entitled to the benefits under the Special Voluntary Retirement Scheme.
3. At the hearing of this petition, learned Counsel has drawn our attention to the Scheme and submitted that once the application for voluntary retirement is accepted and communicated to the employee, it becomes irrevocable both on the part of the employee and the Bank. The date of relieving is merely for the convenience of the Bunk. That date can be preponed or extended. Under the Scheme the date of relieving is only for the purpose of calculating and paying the benefits. It is therefore submitted that it is not required that the employee must be physically available to be relieved to get the benefits under the Voluntary Retirement Scheme if it has been accepted by the Bank and communicated to the employee.
On the other hand, on behalf of the respondent Bank, learned Counsel contends that perusal of the Scheme would require that the petitioner is available on the date to be relieved, and if he is not so available and cannot be relieved, he is not entitled for the benefits under the Voluntary Retirement Scheme. In the instant case, it is contended that though the Bank had accepted the application of the deceased, none the less before he could be relieved on 31-3-2001 in terms of the letter of acceptance, he expired on 30th March, 2001 and in these circumstances, he is not eligible for the benefits”. His cessation of service is not on account of voluntary retirement. It is contended that the petitioners have already been paid what they are entitled to on account of death of Fatnani while in service, which they have also accepted. The petitioners cannot avail of both the benefits. Once having accepted one benefit, they are precluded from contending that they are also entitled to be paid under the Voluntary Retirement Scheme.
4. We have heard learned Counsel for the parties. It would be essential for the purpose of deciding the controversy to reproduce some of the essential clauses/ terms of the Scheme. In our opinion what are relevant to be reproduced are Clauses 7.4, 7.5, 7.6, 7.7 and 7.10 which read as under :–
7.4 Employees seeking Voluntary Retirement under this Scheme are required to submit their applications in the prescribed format only. The application for Voluntary Retirement shall take effect only upon the acceptance and communication in writing by the Competent Authority.
7.5 Employees seeking Voluntary Retirement under this Scheme shall not be permitted to withdraw the application after having exercised their option.
7.6 All the employees who have been permitted to voluntarily retire under this Scheme shall be relieved from the services of the Bank, on a date to be specified and taking into account the administrative exigencies.
7.7 It will be the prerogative of the Competent Authority either to accept or reject the request for Voluntary Retirement under this Scheme depending upon the requirement of the Bank. The decision of the Competent Authority shall be final and binding. The acceptance or otherwise of the application for Voluntary Retirement under this Scheme shall be subject to receipt of communication of Competent Authority by the employee concerned.
7.10 The benefits payable under this Scheme shall be in full and final settlement of claims of whatsoever nature, whether arising under the Scheme or otherwise the employee (or to the nominee in case of death). An employee who voluntarily retired under this Scheme will not have any claim against the Bank of whatsoever nature and no demand or dispute or difference will be raised by or on behalf of the employee, whether for re-employment or compensation or backwages including employment to any of the relatives on compassionate grounds in the service of the Bank or for any other benefit, whatsoever.
From the reading of these provisions, what becomes clear is that once the employee opts under the Scheme the employee is not permitted to withdraw the application after having exercised option. Under Clause 7.4 the application for voluntary retirement shall take effect only upon the acceptance and communication in writing by the Competent Authority. In the instant case the late Fatnani had applied under the Scheme. The acceptance was communicated to the deceased in terms of the proceedings dated 13th March, 2001. On this count, there is no dispute. However, the relevant portion of the letter of communication /proceeding on which reliance was sought to be placed on behalf of the respondent bank reads as under;
“Now therefore, it is hereby ordered that the request for Voluntary Retirement submitted by Shri/Smt. M T. Fatnani as per Circular 235/2000 is hereby accepted with effect from 31-3-2001 and that he/she stands relieved from the services of the Bank with effect from 31-3-2001 after office hours. He/she shall cease to be in the services of the bank with effect from 31-3-2001 after office hours.”
5. It is true that in terms of the said letter the application of late Fatnani was accepted with effect from 31-3-2001 and he was to be relieved from the services of the Bank with effect from 31-3-2001. The short question therefore is whether, once having accepted the application of late Fatnani and which acceptance could not be withdrawn in terms of Clause 7.5 merely because of the fortuitous circumstance of Fatnani not being available on 31-3-2001 to be relieved, can it be said that the respondent Bank is discharged from its liability under the Scheme. A reading of Clause 7.10 would indicate that the benefits under the Scheme can be paid to the employee or to the nominee in case of death of the employee. In other words, the respondent Bank was aware that there could be situations in which the employee would not be available to receive the benefits at the time when they were to be paid and as such, provided for Clause 7.10. What however is material to note is that in terms of Clause 7.7 of the Scheme, the acceptance or otherwise of the application for voluntary retirement was subject to receipt of communication of Competent Authority by the employee concerned. There was no other requirement. In the instant case, there is no dispute that the respondent Bank had accepted the application of late Fatnani and it was communicated to him. Therefore, the requirements of Clause 7.7 were satisfied.
What therefore is the effect of fixing of the date of retirement and whether availability of the employee would be relevant on the date notified for giving benefits under the Scheme, we will examine the effect of Clause 7.6. Clause 7.6 permits the employer to fix the date on which the employee would be relieved taking into account the administrative exigencies. In other words it is something purely within the discretion of the Bank. The date of retirement could have been accepted on the date of communication of the acceptance or it could have been deferred even after 31-3-2001 if the administrative exigencies so required. Even if the relieving date was 31-3-2001 it could still have been open to the Bank considering Clause 7.6 which was for their benefit, to prepone the date of relieving. We therefore find that the date of relieving is of no consequence and it was in the discretion of the Bank either to prepone or postpone the date of relieving. Only thing that they could not do was that after accepting they could not withdraw the acceptance.
6. We may now consider whether having fixed the date as 31-3-2001 as being the date from which the services of late Fatnani would come to an end with the Bank, would the fact that the petitioner expired on 30-3-2001 make a difference. The entire Scheme and the object of the Scheme was to have ideal manpower for the Bank and have optimum human resources in keeping with the business strategies and skill profile towards achieving a balanced age profile and meeting the latest requirements of the Bank. Secondly, the vacancy which would arise on account of acceptance of application could not be filled by a new recruitment. Therefore, the sole object of the Bank was to reduce the workforce and it is with this object that the respondent Bank introduced the Scheme. It is in this background that we have to consider the date of acceptance. The date of acceptance, in our opinion, apart from being for administrative exigencies would only be for the purpose of calculating ex-gratia payment that would be payable to the employee. An employee’s presence on that date would be immaterial. There could be various situations where the employee may not be available. One such instance could be a case where the employee met with the accident and would not be available on account of serious grievous injuries and or being in coma. Therefore, would it mean that such an employee whose application was accepted by the Bank but was not available to be relieved, would cease to receive the benefits. Would the death of a person be an exception to the rule that the person must be available. The contention of the Bank as noted earlier was that the services came to be terminated on account of death and not on account of voluntary retirement. In our opinion, having read the Scheme and object thereof, the only requirement is that the employee must apply, his application must be considered and accepted, and that he must be communicated the decision. Once these three things happen, then it is no longer open either to the employee or the Bank to withdraw or to contend that the benefits under the voluntary retirement are not available for whatsoever reasons including death. In that context the date of relieving as set out earlier, could only be a date fixed for the purpose of calculating the benefits. As the acceptance becomes final by communication to the employee the date of acceptance or relieving is only for administrative exigencies. It may be mentioned that, there can be no doubt that on the date when the Bank accepts and communicates the order the employee must be available, meaning thereby that he is not deceased on the date of communication of acceptance. Clause 7.10 to that extent also becomes material inasmuch as the benefit in case the employee dies has to be paid to the nominee.
On behalf of the petitioners learned Counsel relied upon the judgment of a learned Single Judge of the Karnataka High Court in the case of R. Jyothi v. The General Manager, Dena Bank, Mumbai and Ors., 2003(96) FLR 325. In that case, an employee applied under the Scheme for voluntary retirement. After the application was made and before it could be considered, the employee expired. The legal representatives aggrieved by failure of the Bank to accept the application, preferred a writ petition. The learned Single Judge of the Karnataka High Court, after considering the Scheme and the defence raised by the Employer that the Scheme was not available to the persons who were not alive on the date when the application came up for consideration, held that once the application is made by an employee seeking voluntary retirement, it is irreversible and the only thing which is required to be considered by the bank was whether such an employee was entitled for the benefits of the Scheme. It seems on the facts therein that otherwise it was not disputed that the application of the deceased employee would have been accepted except for the fact of his intervening death. The learned Judge held that, on making application for voluntary retirement under the Scheme, an employee gives his option for retirement and that there was no provision in the Scheme which prohibits the bank from considering the application of the employee who expired before his application was considered by the Bank. The learned Judge therefore held that the death of an employee should not make any difference so far as the consideration of the application filed seeking voluntary retirement of such an employee. We are unable to agree with the broad proposition as laid down in the said judgment considering the Scheme of the respondent Bank herein which is before us. Under the Scheme in question in this petition, mere application was not enough, it had to be accepted and communicated in writing by the Competent Authority. Only then it can be said to be accepted. Under Clause 7.7 of the Scheme it is the prerogative of the Competent Authority to accept or reject the request depending upon the requirement of the Bank. In other words; it is clear that merely because an employee applies by itself would not result in the Bank having to accept the application. Once that is the case, we are clearly of the opinion that mere filing of the application and its receipt by the Bank within the cut of date is not sufficient. An employee to receive the benefits must be available on the date application is considered and accepted and the decision communicated by the Competent Authority.
7. To repeat once again the requirement of valid acceptance would be firstly that the application is made within the cut of date in a prescribed format; that the application has to be considered by the Competent Authority and accepted, and for it to become final it must be communicated by the Competent Authority to the employee who must receive it. It is only then, can it be said that it has been accepted by the bank. The date on which the employee is to be relieved is really not material. As pointed out earlier it is merely for the convenience of the Bank and for the purpose of computing the benefits available to such employee. In other words, after it is accepted by the Competent Authority and communicated to the employee, the happening of event like in the instant case, the death of an employee cannot result in denying to the legal representatives of the deceased employees the benefits under the voluntary retirement scheme. At the highest, by reading of the Scheme reasonably all that can be said is that the benefits would be payable from the date on which he ought to be relieved. In cases like the present, where the employee is not available on account of death it must read to mean on the date on which he expired or the day earlier. Authorities of the State like the respondent cannot on technical plea that the employee expired one day before he was to be relieved deny the benefits of the Scheme to his legal representatives. This would be totally contrary to the principles based on which the Scheme was framed viz. to reduce the number of employees. Every action of a body which is an instrumentality of the State must be fair. Where there is discretion that discretion must be exercised bearing in mind the fact situation. The scheme was to reduce the number of employees. The date of relieving was for administrative exigencies. That date could be preponed in the exercise of discretion in such cases. In the instant case therefore we are of the opinion that the petition will have to be allowed.
8. In the light of that, the following order;
“Petition is made absolute in terms of prayer Clause (a). Respondent Bank is directed to pay the amounts less the amount paid to the petitioners at any rate not later than three months from today by paying the benefits of special voluntary scheme as and on from 30-3-2001. There shall be no order as to costs.”
9. The learned Counsel for the respondent Bank seeks stay of the order. In our opinion, no case is made out for stay. Stay rejected.
10. Parties to act on an ordinary copy of this order duly authenticated by the Personal Secretary or the Associate.