Judgment:
Chandramouli Kr. Prasad, J.
1. In this writ application, prayer of the petitioner is to quash the order dated March 29, 2001 (Annexure-4) whereby the prayer of the petitioner seeking voluntary retirement has been accepted and the petitioner was directed to be relieved from the services of the Bank at the close of the office hours on April 20, 2001. Further prayer made by the petitioner is to issue a writ in nature of mandamus commanding the respondents to reinstate him on the post of Branch Manager in MMG Scale II with all consequential benefits.
2. Short facts giving rise to the present application are that the petitioner, at the relevant time, was working as the Branch Manager of Hajipur Branch of Union Bank of India. The Union Bank of India, hereinafter referred to as 'the Bank' came out with a Scheme known as Union Bank of India Voluntary Retirement Scheme, 2000-01. Petitioner opted for retirement under the Scheme by filing application on December 1, 2000 but later on he filed another application dated March 21, 2001 requesting for withdrawal of his earlier option. It is the stand of the petitioner that the respondent Bank, by memo dated March 29, 2001 (Annexure-4), accepted the petitioner's request seeking voluntary retirement and directed that the petitioner shall stand relieved from the services of the Bank at the close of office hours on April 20, 2001. It is not in dispute that the petitioner received ex-gratia and other monetary benefits under the Scheme on April 20, 2001. This writ application has been filed on November 19, 2001, i.e. after petitioner received the ex-gratia and other privileges under the Scheme.
3. Mr. Manu Shankar Mishra appearing on behalf of the petitioner submits that the petitioner had although accepted the ex- gratia and other monetary benefits under the Scheme prior to the filing of the writ application but that itself shall not preclude the petitioner from challenging the order accepting the voluntary retirement and asking for reinstatement in service. In support of his submission, Mr. Mishra has placed reliance on a judgment of this Court in the case of Krishnamber Jha v. Union of India and Ors., 2000 (2) PLJR 100 and my attention has been drawn to the judgment which reads as follows:
'This Court is in respectful agreement with the observation made by the Hon'ble Supreme Court in the aforesaid case, and it is difficult for this Court to accept the plea raised by the respondent. This Court is of the opinion that in the instant case by accepting the amount of voluntary retirement which was offered to him after filing of this writ petition the petitioner has not given up his right to challenge the impugned order. In fact, during the pendency of this writ petition a learned Judge of this Court while admitting the same gave further liberty to the petitioner to receive the balance amount and made it clear that filing of this writ petition will not stand in the way of the petitioner to receive the balance amount of provident fund and any other amount.'
Mr. Mishra emphasises that even prior to the acceptance of the voluntary retirement, petitioner had filed application for withdrawal of the option and the ex-gratia and other benefits were received by him later.
4. Mr. Birendra Kumar Sinha, senior advocate appearing on behalf of the respondents, however, submits that as the petitioner had received the ex-gratia and all other amounts admissible under the Scheme before filing of the writ application, the writ application deserves to be dismissed on this ground alone. In support of the aforesaid submission, reliance has been placed on a decision of the Supreme Court in the case of Bank of India and Ors. v. O.P. Swaranakar reported in AIR 2003 SC 858 : 2003-I-LLJ-819, and my attention has been drawn to the judgment and same reads as follows at p. 843 of LLJ:
'24. ........... 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. The Scheme is contractual in nature. The contractual right derived by the concerned employees, 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.'
5. Having appreciated the rival submissions, I do not find any substance in the submission of Shri Mishra. True it is that before accepting the ex gratia and other benefits under the Scheme, petitioner had filed application withdrawing his option seeking voluntary retirement but thereafter, his prayer was accepted on March 29, 2001 and the petitioner received all the amounts admissible to him under the Scheme on April 20, 2001. Petitioner has chosen to impugn the action of the respondent Bank only after he received all the benefits on November 19, 2001. The Supreme Court in the case of Bank of India (supra) has clearly held that an employee, who has accepted the ex gratia amount or any other benefit under the scheme, cannot resile later on and they could waive their right. In view of the authoritative pronouncement of the Supreme Court in the case referred to above, I am of the opinion, that the petitioner having once accepted the ex gratia payment and other benefits, he cannot be permitted to resile from that and challenge the order accepting the voluntary retirement later on. Now, referring to the decision of this Court in the case of Krishnamber Jha (supra), I am of the opinion that the same is clearly distinguishable. In the said case payment was accepted after filing of the writ application and this Court further observed that filing of the writ petition shall not stand in the way of the petitioner of the said case to receive the balance amount and in the said background, this Court held that the principle of waiver shall not apply. In the present case, much before filing of the writ application, petitioner had accepted the ex gratia and other benefits.
6. In the result, I do not find any merit in this writ application and it is dismissed accordingly. No costs.