THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.15197 OF 1996 O R D E R Heard both the counsel. 2. The petitioner worked as Assistant Grade- II in the respondent –Central Warehousing Corporation. Pursuant to the circular issued by the Corporation introducing ‘Special Voluntary Retirement Scheme’, he made application dated 30.11.1994, seeking voluntary retirement. His case is that immediately after four days i.e., on 3.12.1994, he made application seeking withdrawal of his earlier application dated 30.11.1994 for voluntary retirement. His grievance is that without considering his withdrawal application dated 3.12.1994, the respondent have accepted his voluntary retirement application by proceedings dated 7.12.1997 and relived him from service on the same day. Aggrieved by the same, the present writ petition is filed. 3. The respondents filed counter affidavit and stated inter alia that the petitioner never made any application dated 3.12.1994 seeking to withdrawal of his earlier application dated 30.11.1994. The voluntary retirement application of the petitioner was accepted on 7.12.1994 and the same was also communicated to the petitioner and he was relived on the same date and on the date of reliving, the petitioner was given memento and subsequently, he was paid all the amounts due to him. The petitioner having received all the monetary benefits, cannot turn around and say that he made application seeking cancellation of voluntary retirement scheme and that he shall be reinstated. With these averments, the writ petition was sought to be dismissed. 4. The petitioner filed reply and additional counter affidavits were also filed. 5. From the above material, there is no dispute that pursuant to the ‘Special Voluntary Retirement Scheme’ introduced by the respondent – Corporation, the petitioner made application dated 30.11.1994 seeking voluntary retirement. The same was accepted on 7.12.1994 and the petitioner was relived and the amounts that were due to him under the scheme were paid and the petitioner received the same. The case of the petitioner is that he made representation dated 3.12.1994 seeking to withdraw his application for voluntary retirement dated 30.11.1994. This averment is specifically denied by the respondents in the counter affidavit. Hence, such disputed facts cannot be delved under the writ petition. But the fact remains, that the petitioner has accepted the monetary benefits. 6. In similar circumstances, the Apex Court in BANK OF INDIA v. K.V.VIVEK AYER[1], held under the voluntary retirement scheme, the employee having accepted the benefits, cannot be allowed to resile there from and that mere fact that application for not giving effect to the prayer for being covered by the scheme, was made only two days after the prayer and that the fixed deposit was made in the same bank, would not change the position in law and that the benefits were utilized by the respondent employee and that an employee cannot be permitted to approbate and reprobate. The relevant portion of the judgment is extracted as under: 6. In order to consider the acceptability of the respective stand, it is necessary to take note of what was stated in Bank of India case2 in paras 114 and 115 of the judgment. It was noted as follows: (SCC p. 764) “114. 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. 115. The Scheme is contractual in nature. The contractual right derived by the employees concerned, 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.” 7. In para 130, the position was summed up as follows: (SCC p. 768) “1. The appeals preferred by the nationalised banks arising from the High Courts are dismissed except the cases where the employees concerned have accepted a part of the benefit under the Scheme; however, in respect of such of the employees who despite acceptance of a part of the retirement benefit under the Scheme had continued under the orders of the High Court and have retired on attaining the age of superannuation, this order shall not apply. 2. The appeals filed by State Bank of India are allowed. 3. The appeals arising from the judgments of the Uttaranchal High Court are allowed and the judgments of the said High Court are set aside. 4. The appeals arising from the judgments of the Punjab and Haryana High Court in relation to ten writ petitions which were filed by the employees for a direction upon the Bank that the benefits under the Scheme be paid to them are set aside and the matters are remitted to the High Court for consideration thereof afresh on merits and in accordance with law.” 8. Subsequently, certain clarifications were sought for by several banks. A three-Judge Bench in Punjab National Bank v. Virender Kumar Goel3 clarified the position as follows in para 16: (SCC p. 199) “16. We make it clear that the sentence, ‘accepted a part of the benefit under the Scheme’, which appeared in our direction as noticed above, would include the withdrawal of the benefit and utilisation thereof. By no stretch of imagination, unilateral deposit of a part of benefit under the Scheme into the bank account, that too after withdrawal of the application, would construe as to have accepted the part of the benefit under the Scheme, when the same was neither withdrawn nor utilised by the employee concerned.” 9. The crucial question is whether the employee concerned had utilised the amount deposited. It was clarified in Punjab National Bank case3 that the deposit of a part of the benefit unilaterally would not amount to acceptance of the benefit under the Scheme. However, when there is utilisation of the amount so deposited that would be covered by the ratio in Bank of India case2. The mere fact that the application for not giving effect to the question for being covered by the Scheme was made after a few days cannot change the position in law. Moreover, the making of fixed deposits by the respondent employee is a clear case of utilisation. Merely because the fixed deposits were made in Appellant 1 Bank, that does not take away the effect of the fact that it was utilised by the respondent employee.” 7. In view of the above judgment of the Apex Court and having regard to the facts and circumstances, I do not find any merit in the writ petition and the same is dismissed. No costs. AVS ------------------------------------ 26—08—2011 [1] (2006)9 SCC 177