IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.9190 OF 2001 Between: S. Srinivasa Rao ..... Petitioner And 1. The Chairman & Managing Director, Bank of India, Express Towers, Nariman Point, Mumbai – 400 021 & 3 others …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.9190 OF 2001 ORDER: The Writ Petition is directed against the recovery of the amounts as per the agreement between the writ petitioner and the Bank of India, dated 29.12.1993, after acceptance of the voluntary retirement of the writ petitioner from the bank. 2. The factual background for the Writ Petition is that the writ petitioner who joined the service of the Bank of India on 05.10.1970 worked in various capacities till his voluntary retirement from the post of Deputy General Manager, Top Management Grade – VI, at the Corporate Banking Branch of the Bank at Calcutta. The writ petitioner worked in a foreign posting from 31.12.1993 to 07.07.1997 and before joining the foreign posting, he first executed an agreement, dated 24.08.1993, and again executed another agreement, dated 29.12.1993, under which he agreed to work for a period of three years in foreign posting and thereafter, for a period of five years in India, in default of which under the first agreement, Rs.3.5 lakhs was stipulated to be recoverable and under the second agreement, Rs.7.5 lakhs was stipulated to be recoverable. After returning to India on 07.07.1997, the writ petitioner served as per the stipulations of the agreements till his voluntary retirement. While so, the Bank had introduced a Voluntary Retirement Scheme under the Circular, dated 01.11.2000, and the writ petitioner, who satisfied all the other requirements of the scheme, applied for voluntary retirement which was accepted retiring him with effect from 01.01.2001. Though the scheme was not applicable to persons working under bonds, the Board of Directors were given the power under the scheme to waive the said condition subject to fulfillment of bond/other requirements and when the bank recovered Rs.2.09 lakhs on 27.03.2001 from the accounted leave and further recovered the full amount of gratuity of Rs.3.50 lakhs on 09.04.2001, the writ petitioner came to know about the deductions being made towards enforcement of the agreement, dated 29.12.1993. The writ petitioner, therefore, approached this Court with this Writ Petition contending that the bank had no jurisdiction to add any further conditions to the scheme than specified in the scheme and the acceptance of the request for voluntary retirement by an eligible employee unconditionally cannot be later burdened with any mandatory liabilities. In fact, the writ petitioner claimed to have requested the bank on 29.12.2000 to continue him in service in stead of retirement, if the bond were to be enforced. As the bank is proposing to recover the entire amount of Rs.7.5 lakhs from the amounts due to the writ petitioner, he challenged the recovery in this Writ Petition. 3. The bank firstly resisted the request on the ground of the acceptance of the offer for voluntary retirement being made by the General Manager at Mumbai, while the writ petitioner was working at Calcutta depriving this Court of any territorial jurisdiction to entertain the Writ Petition. The bank also contended that the Voluntary Retirement Scheme is as per the requirements stipulated by the Government of India and the Indian Banks Association and an employee submitting an application for availment of the scheme has no option to withdraw the application and is bound by specific terms and conditions in the scheme. When the writ petitioner applied for voluntary retirement, it was accepted subject to the terms and conditions of the scheme and he received a huge financial compensation of Rs.12,76,440/- apart from the normal terminal benefits. His liability to pay the liquidated damages of Rs.7.5 lakhs under the agreement, dated 29.12.1993, is unaffected by the voluntary retirement which was subject to the fulfillment of the bond and other requirements. The bank’s Circular, dated 01.11.2000, specifically referred to the power of the Board of Directors to waive the conditions of ineligibility subject to fulfillment of bond or other requirement. The bank did not add any conditions to the scheme and the offer of the writ petitioner to pay the damages prorata cannot be accepted. The bank, therefore, desired the Writ Petition to fail. 4. Sri C. Raghu, learned counsel representing Sri C. Nageswara Rao, learned counsel for the writ petitioner and Sri S. Surya Prakash Rao, learned counsel for the respondents are heard. 5. The point for consideration is whether the respondents are entitled to recover any amounts under the agreement, dated 29.12.1993, from the writ petitioner after unconditional acceptance of his offer for voluntary retirement? 6. The objection of the respondents about the territorial jurisdiction of this Court to entertain this Writ Petition was answered by the learned counsel for the writ petitioner by referring to the agreement, dated 24.08.1993, in the first instance and the subsequent agreement, dated 29.12.1993, later, which are sought to be enforced, having been executed between the writ petitioner and the bank at Hyderabad. The execution of the agreements at Hyderabad being not in dispute and the grievance of the writ petitioner herein being against the enforcement of such agreements, any technical considerations against the entertainment of the Writ Petition cannot be sustained and the extra ordinary original jurisdiction of this Court is available to the writ petitioner in respect of the enforceability or otherwise of the agreements due to the subsequent events. 7. Under both the agreements, dated 24.08.1993 and 29.12.1993, the terms and conditions are identical except the quantified sums of liquidated damages, the same being Rs.3 lakhs under the first agreement and Rs.7.5 lakhs under the second agreement. The agreements stipulate that the employee should serve for the specified periods in the foreign posting and on return in India as may be required by the bank as per its terms and conditions and it is only a failure to serve the bank or the termination of his services for any reason whatsoever or voluntarily leaving the bank by the employee for any reason whatsoever that was specified to be the pre-condition for payment of liquidated damages. While in the present case, there was neither any failure to serve the bank nor any termination of his services for any other reason, though the option by the writ petitioner to leave the bank was voluntary, it was induced by the Voluntary Retirement Scheme floated by the bank by its circular, dated 01.11.2000. It could not be equated to an offer emanating from the writ petitioner himself, but should have to be construed as the acceptance of the offer made by the bank under the Voluntary Retirement Scheme. The offer by the bank is subject to the conditions of the Circular, dated 01.11.2000, and when the writ petitioner submitted an application for voluntary retirement, it is no doubt true that he must be deemed to have agreed to all the conditions of the Voluntary Retirement Scheme under the circular. The circular makes any specialized Officers/employees who executed service bonds and have not completed them or who were serving abroad under special arrangements/bonds ineligible for the Voluntary Retirement Scheme, but an option was still left to the Board of Directors to waive the ineligibility subject to the fulfillment of the bond/other requirements. 8. With this background, it is seen that the writ petitioner submitted his voluntary retirement application on 24.11.2000 and though his application had no reference to the agreements, dated 24.08.1993 and 29.12.1993, he submitted another letter to the bank before his request for voluntary retirement was considered, clearly specifying that the repayment of the bond amount even prorata will put him to hardship and in view of his inability to repay the bond amount or any part thereof, he would rather serve the bank as per the terms of the bond and, therefore, requested the bank to consider his application for voluntary retirement accordingly. When the General Manager (HR) communicated to the Zonal Manager on 01.01.2001 subsequently that the competent authority has accepted the application of the writ petitioner for voluntary retirement, it may have to be deemed that the request of the writ petitioner in his application, dated 24.11.2000, as qualified by the letter, dated 29.12.2000, was considered on merits by the bank and the said letter, dated 01.01.2001, had absolutely no reference to the agreement, dated 29.12.1993, or any recovery of any liquidated damages. When the terms of the scheme under the circular, dated 01.11.2000, empower the Board of Directors to waive the ineligibility, it is for them to specify the waiver of the ineligibility to be unconditional or conditional in view of the language of the scheme which makes it possible that such waiver can be subject to fulfillment of the bond/other requirements. It is evident from the very language that such waiver need not also be subject to the fulfillment of the bond or any other requirements. When the letter, dated 01.01.2001, was thus unconditional, the bank or any of its Officers could not have read any conditions into it later. Even in the letter communicated by the Zonal Manager, Eastern Zone, to the writ petitioner on the same day on 01.01.2001, it was clearly informed that it has been decided by the competent authority to accept the application, dated 24.11.2000, and relieve him from services with effect from 01.01.2001. There was absolutely no reference to the liability of the writ petitioner to be subjected to any deductions on any count. 9. However, subsequently on 01.01.2001, the writ petitioner came to address a letter with reference to his earlier letter, dated 29.12.2000, reiterating his request to mitigate his hardship in case of the bond amount being insisted upon and had offered with reference to his service for 3 ½ years as against the required five years to consider deduction of the prorata amount of Rs.93,750/-. He submitted another letter, dated 13.03.2001, again reiterating the same request and he claims his request to be as per the practice prevailing in the bank subjecting similarly placed persons to only prorata recovery of amount. He referred to his unblemished service of 30 years earlier while reiterating the request. This request was obviously not considered by the respondents sofar and while the respondents are not entitled to read any conditions into the unconditional acceptance of the request for voluntary retirement subsequently, the writ petitioner should, in equity and justice, abide by the offer made by himself to have prorata recovery of the amount which sufficiently safeguards the interests of the bank representing public interest which was deprived of the services of the writ petitioner for the full period, of course due to the scheme floated by the bank itself and due to its unconditional acceptance of the request for voluntary retirement. 10. On the above facts and circumstances, therefore, the respondents have to be permitted to make only that much of deduction as was offered by the writ petitioner in his letters, dated 01.01.2001 and 13.03.2001, and not any more and the relief has to be moulded accordingly. 11. In the result, the respondents are permitted to recover Rs.93,750/- from the amounts due and payable to the writ petitioner on his voluntary retirement, if they so desire to make such recovery, but shall not be entitled to recover any further amounts with reference to the agreement between the writ petitioner and the Bank of India, dated 29.12.1993. 12. The writ petition is allowed, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 2nd December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETTION No.9190 OF 2001 December 02, 2010. KL