IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.11..2009 CORAM: THE HONOURABLE MR. JUSTICE R.SUDHAKAR W.P. No.16913 of 2003 G. 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. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the respondents herein culminated in the 2nd respondent's proceedings in BCC:HRM:IL:95/C-27/4456, dated 3.6.2003, quash the said proceeding as it is arbitrary, unjust and against all cannons of natural justice, and consequently directing the respondents herein to permit the petitioner in service at the appropriate place with continuance of service and backwages within the time stipulated. For Petitioner : Mr. G. Thangavel For Respondents : Mr. K.S.V.Prasad https://hcservices.ecourts.gov.in/hcservices/ ORDER The prayer in the writ petition is to quash the proceedings of the 2nd respondent dated 3.6.2003 and consequently, direct the respondents to permit the petitioner in service at the appropriate place with continuance of service and backwages. 2. In this writ petition, the petitioner is challenging the letter of the second respondent dated 3.6.2003, which is a reply given by the Bank in response to the representation dated 17.4.2003. For better appreciation of the case, 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 Chennai Main Branch. My PF dues has been adjusted towards my housing loan dues. I have enclosed the full details with necessary documentary evidence where the Bank has confessed in writing the criminal act. Regarding this I have filed a criminal complaint in 7th Metropolitan Magistrate, George Town, Chennai. Magistrate has ordered the B-1 North Beach Inspector of Crimes to conduct a deailed enquiry and report the same. FIR has been registered against the Bank of Baroda under IPC 420. The crime Inspector couple of days back ordered the Chief Manager of Chennai Main Branch to produce the PF records from the head office. This is the first time in the history of Banking in India, an employee has booked a Nationalized Bank under Criminal Procedure Code. Please conduct a detailed enquiry about this criminal act committed by Bank of Baroda." The Bank in response replied and countered the representation and refuted all the allegations and the gist of the reply is as follows:- "It seems that you have presently taken up the issue of recovery of PF amount ignoring all that has transpired in the matter of your resignation from Bank's services, belatedly, in 2002 with intention to avoid payment of the remaining housing loan dues and other dues payable by you to the Bank. You are advised to repay the housing loan dues of Rs.30,877.82 and settle the housing loan at the earliest. In the facts and circumstances aforesaid, you are hereby advised to desist from making false allegations against the Bank's Officials and the Bank." 3. The petitioner now seeks to quash this letter dated 3.6.2003 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 has been extracted above clearly refers to an alleged criminal complaint against the bank for misappropriation of the petitioner's amount towards housing loan dues which according to the petitioner is a criminal act. The bank from its side, has given a detailed reply wide letter dated 3.6.2003 refuting the allegations and setting out the factual details which led to the recovery of the Housing loan amount consequent to the resignation of the petitioner in the year 1982. The Bank requested the petitioner to desist from making such false allegations. It is not clear as to how any relief as prayed for can be granted to the 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 been admitted and since a counter has been filed by the 4th respondent for and on behalf of all the respondents, this writ petition is taken up for final disposal on merits. 5. The brief facts which lead to the filing of the writ petition is as follows:- (i) The writ petitioner joined as a typist on 2.7.1970 in the respondent Bank at Bombay and was transferred to Chennai on 8.2.1982. On 19.7.1982, he tendered his resignation to the Bank by letter dated 19.7.1982 stating that he should be relieved on 18.8.1992. He has stated in the letter dated 19.7.1982 that he had availed housing loan in the year 1976 and the outstanding balance is Rs.31,000/- and that should be adjusted from out of provident fund and gratuity amount and the balance amount to be adjusted from his Savings Bank Account No.6592 held at the Mount Road Branch. He also requested the Bank to release the original documents after adjusting the loan amount. Petitioner further requested the Bank to permit him to encash unavailed leave till the date of resignation. On the same day i.e. 19.7.1982, the petitioner wrote a letter to the Trustee of Provident Fund, Bank of Baroda, stating that he has submitted his resignation and stated that the balance amount of Rs.31,000/- towards housing loan can be adjusted from the P.F. Amount. The petitioner also informed the Bank of Baroda Employees Co-operative Societies that he has resigned the job. (ii) In its letter dated 27.7.1982, the Bank has stated that the resignation will be accepted on clearing the outstanding balance amount in the housing loan account and all other dues payable to the Bank. After the Bank's reply letter dated 27.7.1982, there is no correspondence between the petitioner and the Bank for more than eight years. This is evident from the documents filed in the typeset of papers filed by the petitioner as well as the respondent Bank. On 30.7.1990, (i.e.) after nearly eight years, the petitioner addressed a letter 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 liquidate the outstanding balance of Housing Loan as early as possible. In this connection, I enclosing a cheque No.788560, dated 10.7.1990, drawn on IOB for Rs.500/- to be credited to my Housing Loan Account. Kindly acknowledge. I am once again requesting you that you can consider my case by reinstating my service on Humanitarian grounds, thus you can solve all my problems. 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 Bank giving details of the Housing Loan availed and how the amount has been adjusted. In this letter, the petitioner states that he is struggling for his day today existence and therefore, to enable him to repay the balance of housing loan, he prayed that he should be reinstated into service on humanitarian grounds. This is followed by a series of correspondence between the Bank and the petitioner. Most of the correspondence relates to settling of the Housing Loan amount from the P.F. Account and gratuity amount etc. In effect, the petitioner attempted to inform the Bank that he has almost cleared the Housing Loan. In order to enable him to pay the balance amount he requested that he should be re-instated into service as he does not have any other source of income. Based on the complaints dated 17.4.2003 addressed to the Member Secretary, Banking, Ministry of Finance and the reply of the Bank dated 3.6.2003, which has already been referred to above, the present writ petition has been filed to quash the reply letter dated 3.6.2003 and for consequential benefits viz., re-instatement of service with backwages. 7. Learned counsel for the petitioner submitted that the Bank in response to the resignation letter has clearly stated that the resignation cannot be accepted untill the Housing Loan is cleared in its entirety. Since the loan is not settled in full, there is no termination of service. The petitioner continues to be in service and therefore, he should be reinstated with consequential benefits. Petitioner relied upon the decision of the Apex Court reported in Srikantha S.M. - Vs. - Bharath Earth Movers Ltd. (CDJ, 2005 SC 786), wherein, it has been held as follows:- " The Court said: " 23. It is now settled legal position that unless the employee is relieved of the duty after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the https://hcservices.ecourts.gov.in/hcservices/ employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High Court, therefore, was not right in holding that the respondent has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently." 24. In J.N.Srivastava – Vs. - Union of India and another (1998) 9 SCC 559, a notice of voluntary retirement was given by an employee on October 3, 1989 which was to come into effect from January 31, 1990. The notice was accepted by the Government on November 02, 1989 but the employee withdrew the notice vide his letter dated December 11, 1989. It was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from January 31, 1990 and before that date it was withdrawn. 25. In Shambhu Murari Sinha – Vs. - Project & Development India and Another (Shambhu Murari Sinha 1), (2000)5 SCC 621) an application for voluntary retirement of an employee dated October 18, 1995 was accepted by the employer vide letter dated July 30, 1997 with further intimation that " release memo along with detailed particulars will follow". The workman was actually relieved on September 26, 1997. In the meanwhile, however, by a letter, dated August 7, 1997, he withdrew the application dated October 18, 1995, by which he sought voluntary retirement. It was held that the effective date of voluntary retirement was September 26, 1997 and before the date it was permissible for the workman to withdraw his retirement. The appellant was, therefore, held entitled to remain in service. 26. In Shambhu Murari Sinha – Vs. - Project & Development India and Another (Shambhu Murari Sinha II), (2002)3 SCC 437) the view taken in Shambhu Murari Sinha 1 was reiterated. It was held that when voluntary retirement was withdrawn by an employee, he continued to remain in service. The relationship of employer and employee did not come to an end and the employee had locus penitentiae to withdraw his proposal for voluntary retirement. He was, therefore, entitled to rejoin duty and the Corporation was bound to allow him to work." https://hcservices.ecourts.gov.in/hcservices/ He therefore pleaded that the master and servant relationship continues and hence, petitioner is entitled to reinstatement. 8. A counter affidavit has been filed by the respondent Bank. Mr. KVS. Prasad, appearing for respondent referred to the various documents filed by them and stated that after resignation on 19.7.1982 and after the reply by the Bank on 27.7.1982, the petitioner did not attend the Bank except for one day. For the first time, in the year 1990, he made a representation for re-instatement i.e. after more than eight years. Assuming without admitting that there was no acceptance of resignation, the petitioner had abandoned his post and therefore, he cannot claim that he should be reinstated into service. He has to suffer the consequence of his act of abandoning his post, after submitting his resignation and indicating that this resignation should be given effect from 18.8.1992. 9. It is based on petitioner's letters, the Housing Loan dues have been adjusted from various accounts and some amount is still due from the petitioner. The correspondence between the petitioner and the Bank relates only to settlement of Housing Loan. The correspondence of the year 1992 also goes to show that the petitioner was eager to settle the balance outstanding housing loan. He requested for re-instatement into service on humanitarian grounds. There is no explanation as to why he had stayed away from the Bank for more than eight years. There is not even a scrap of paper to show that petitioner has some connection with the Bank between the period 1982 to 1990. This long period of silence is unexplained and therefore, it is clear that petitioner has abandoned his post. 10. By the conduct of the petitioner submitting his resignation and requesting the bank to settle his dues from the provident fund account and gratuity amount and by requesting the Bank to adjust the balance amount from the savings account, it is clear that both parties proceeded on the basis that the resignation has been given effect to . 11. Learned counsel for the respondent Bank submits that the petitioner ceased to be an employee of the Bank by his own conduct and abandoned the post and therefore, he cannot claim re-instatement. Respondent counsel relied upon the following 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 (2004 LAB.I.C.514) (iii) Abdul Kalam Sheikh – Vs. - Registrar, MLS University and another ( 2002 LLR 190) https://hcservices.ecourts.gov.in/hcservices/ (iv) Kshetriya Sri Gandhi Ashram, Magahar – Vs. - Ram Samujh Maurya and another (1990 LAB.I.C. 1406); (v) Shahoodul Haque – Vs. - The Registrar, Co-operative Societies 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 of Port Management and another ( 2006 W.L.R. 820). to state that once the person abandons his post, the question of re-instatement does not arise. This aspect of the case is not disputed by the counsel for the petitioner. There is no explanation for the long period of silence. 12. From the factual matrix of the case, it is clear that the petitioner wanted to resign his post. He submitted his resignation and consequent thereon, he addressed the Bank to settle all the outstanding loan and liabilities out of Provident fund and gratuity amount and that has almost been done except a portions which remains unpaid. Even in the letter dated 13.7.1990 addressed to the Bank, the petitioner paid a sum of Rs.500/- towards Housing Loan account and thereafter renewed his request for re-instatement into service. There is a long gap of eight years between the banks' reply dated 27.7.1982 and the petitioner's letter dated 13.7.1990 requesting for re- instatement, which has not been explained by the petitioner. In the letter dated 13.7.1990, the petitioner seeks re-instatement, thereby, he admits that he is not in the banks service for more than eight years. After submitting his resignation letter dated 19.7.1982, he has not proceeded further. The petitioner has abandoned his service without any just cause. Once the petitioner has submitted his resignation letter and not attended the Bank , he cannot claim any right by way of re-instatement. There is no order of dismissal or removal from service to seek reinstatement. 13. Here is the case, where the petitioner has resigned and voluntarily withdrawn from attending the Bank consequent to the letter of resignation. He prayed for settlement of all dues and liabilities and clearly instructed the Bank to do so. Therefore, there is a clear understanding between the petitioner and the respondent Bank that the resignation has been given effect in its entirety. Further admittedly, amounts are due towards Housing Loan for which, the petitioner is seeking the Bank's indulgence for re-instatement so as to enable him to repay the loan. This is evident from the letter dated 23.6.1992 and it explained the position. The petitioner therefore cannot claim that he should be treated as an employee. Petitioner is not in service of the Bank on his own volition and therefore there is no question of re-instatement into service. Such a situation 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 and has raised the issue of re-instatement after eight years based on some correspondences. The petitioner is now trying to quash the 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 to raise such a plea and the claim has no basis. By threat of criminal case, the petitioner is trying to get reinstated. Further, the plea of the petitioner cannot be accepted by this Court only on the ground of delay and laches. The reply letter of the second respondent dated 3.6.2003 will not give a cause of action for the writ petitioner to claim the benefit of re- instatement as it is a reply to the representation with regard to the allegation of criminal misconduct, which has been refuted by the Bank outright. Therefore, the prayer in the writ petition itself is misconceived. 14. The decision of the Apex Court reported in Srikantha S.M. - Vs. - Bharath Earth Movers Ltd. (CDJ, 2005 SC 786), which is relied upon by the petitioner, relates to the case of withdrawal of resignation letter before acceptance under voluntary retirement scheme. The above said decision does not apply to the facts of the present case as this court is not dealing with the case of voluntary retirement. 15. Viewed from any angle, there is absolutely no merit in the writ petition. The relief sought for cannot be granted by this Court by quashing the letter of reply of the second respondent-Bank in response to the representation of the petitioner. No case much less prima facie case, has been made out by the petitioner to grant the relief sought for. Hence, the writ petition is dismissed. Consequently, WP.M.P.No. 43880 of 2003 is also dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ra To 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. 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 2003 KA(CO) EM/27.1.10 https://hcservices.ecourts.gov.in/hcservices/