@JUDGMENTTAG-ORDER
K. Ravichandrabaabu, J.@mdashThe petitioner is aggrieved against the order of the third respondent dated 3.7.2000 and the order of the second respondent dated 5.3.2002. Under the order dated 3.7.2000, the third respondent imposed a punishment of withholding three increments of pay with cumulative effect for a period of three years in terms of Regulation 4(b) of the Indian Overseas Bank Officer Employees Discipline and Appeal Regulations, 1976. Under the very same proceedings, the suspension period of the petitioner was also not treated as one spent on duty thereby denying monetary and other benefits for that period other than the subsistence allowance already paid to him. Under the order dated 5.3.2002, the second respondent confirmed the above said order of the third respondent. The case of the petitioner is as follows:-
He joined the respondent Bank as Clerk on 1.4.1972 at its Central Office, Chennai and was promoted to Officer cadre on 17.8.1981. While he was in service, he was arrested by C.B.I. on 12.4.1996 based on a complaint given by the respondent Bank. Consequently, the petitioner was placed under suspension on 21.5.1996 under Regulation 12(1)(b) of above said Regulations pending trial of a criminal case. In the mean time, the petitioner was granted bail on 15.5.1996. After investigation by the C.B.I., the petitioner was found innocent and consequently no charge sheet was filed against him in the said criminal case which has been registered as C.C. No. 2 of 1998 before the C.B.I. Special Court, Chennai. Thus, no case was ever registered against the petitioner by C.B.I. and consequently, there was no ground for suspending the petitioner. As the ground for suspension ceased to exist after dropping his name in the charge sheet on 10.6.1998, the petitioner should have been reinstated with full back wages, even for the suspension period. However, he was issued with a charge memo dated 25.6.1998 by the respondent Bank with two imputations for imposition of a major penalty. No separate suspension order was issued by the respondents before proceeding against him domestically. Enquiry was conducted by an officer of the Central Vigilance Commission and insofar as the imputation No. 1 is concerned, which implicated the petitioner with the criminal case, the enquiry officer has found the same as not proved. In fact imputation No. 1 alone was invoked for imposing major penalty.
2. Insofar as the second imputation which is in respect of non-submission of income returns is concerned, the enquiry officer has found the same as proved only on the reason that the petitioner has failed to reply to a reminder letter, which was never served on the petitioner. Consequent upon such enquiry report, the third respondent imposed penalty through his order dated 3.7.2000 as stated supra. The petitioner preferred an appeal before the appellate authority. The said appeal was partly allowed on 29.12.2000 by modifying the penalty as withholding of one increment of pay with cumulative effect. The petitioner preferred further appeal before the Chairman and Managing Director of the Indian Overseas Bank, which came to be rejected on 5.3.2002.
3. The respondents filed a counter affidavit, wherein it is stated as follows:-
3.1. The petitioner was placed under suspension vide order dated 21.5.1996. Thereafter, he was served with the charge sheet dated 25.6.1998 for the misconducts alleged under Regulation 3(1), 3(3), 18, 20(V) and 24 of Indian Bank Officer Employees (Conduct) Regulations, 1976. A domestic enquiry was conducted and the petitioner effectively participated with his representative and elaborately examined the witnesses. The enquiry authority found the charges under Regulations 3(1), 3(3), 18 of the said Regulations as not proved. However, the charge under Regulation No. 20(v) was found proved. Consequently, the order of punishment dated 3.7.2000 was passed. The appellate authority vide order dated 29.12.2000 confirmed the order passed by the disciplinary authority.
3.2 Thereafter, the petitioner applied for Voluntary Retirement Benefits Scheme by giving an undertaking that he will not pursue the subject matter in any other manner in any court and will not claim wages for the suspension period and will not agitate against the penalty imposed in any court. Based on the undertaking given by the petitioner, the bank considered the said application favourably and paid lump sum amount as voluntary retirement package. One of the terms and the conditions of Voluntary Retirement is that he should not claim back wages and that he should not make any claim against the Bank after his retirement. After enjoying the benefits of Voluntary Retirement Scheme and having ceased to be the employee of the Bank, the petitioner made a representation to the first respondent against the order of the appellate authority dated 29.12.2000. The first respondent rejected his request on 5.3.2002 by confirming the order of the appellate authority. The petitioner is thus estopped from filing the present writ petition.
3.3. On merits, it is stated that the petitioner has not submitted the Assets and Liability Statement from 31.3.1990 to 31.3.1996. Thus, such breach amounts to misconduct. It was further found that the petitioner was indulging in speculation of stocks, shares and other securities with the amount allegedly borrowed from one S.S. Ramadoss. Thus, the petitioner was issued with a charge sheet as stated supra. As the imputation of non-submission of the Assets and Liabilities Statement was proved and other imputations were not proved in the domestic enquiry, the disciplinary authority awarded the punishment of withholding the next three increments of pay with cumulative effect for a period of three years. Under the very same order, the disciplinary authority also revoked the suspension and reinstated the petitioner. Accordingly, he was reinstated as Assistant Manager. It was also ordered therein that the suspension period of the petitioner was to be treated as the one not spent on duty. The criminal case filed against the petitioner ended only on 10.6.1998 and however, the departmental enquiry was in progress. As such the petitioner was continued under suspension till it was lifted by the original order passed by the disciplinary authority on 3.7.2000. Therefore, the petitioner''s suspension is justified. The contention of the petitioner that there was no separate or concurrent suspension is not correct. The suspension was quite lawful as the same was made in pursuant to the arrest of the petitioner by the CBI on 12.4.1996. As per Regulation 12(2) of the said Regulations, the petitioner was deemed to be under suspension as he was arrested and put behind the bar for more than 24 hours. Once the petitioner was placed under deemed suspension, he would continue to be under suspension till its revocation by the respondent Bank. There was no need for the respondent Bank to place the petitioner under suspension once again, when he was already under suspension under Regulation 12(1).
4. Heard the petitioner as party in person and the learned counsel appearing for the respondents.
5. The petitioner as party in person filed written arguments and the crux of the same is already extracted supra while narrating the case of the petitioner. The core contention of the petitioner is that he was placed under suspension only under Regulation 12(1)(b) and there was no suspension order passed in respect of or in connection with departmental proceedings as contemplated under Regulation 12(1)(a) and thus the denial of wages for the suspension period by not treating the same as one spent on duty is unjustifiable. In other words, the contention of the petitioner is that the suspension order passed against the petitioner on 21.5.1996 is not in respect of the departmental proceedings but in respect of a criminal proceedings which ultimately ended in his favour by not filing the charge sheet against him as he was found innocent. Thus, the petitioner contends that such suspension period should be treated as the one spent on duty as per Regulation 15(1) and full wages for such period has to be paid.
6. Per contra, the contention of the learned counsel for the respondents is that once the suspension order is made, unless and until it is revoked, there is no necessity to pass any further or separate suspension order against the petitioner in respect of departmental proceedings.
7. In order to appreciate the rival contentions, it is better to refer Regulation No. 15(1) of the Indian Overseas Bank Officer Employees'' (Discipline and Appeal) Regulations 1976 which reads as follows:-
15. PAY, ALLOWANCES AND TREATMENT OF SERVICE ON TERMINATION OF SUSPENSION:
(1) Where the competent authority holds that the officer employee has been fully exonerated or that the suspension was unjustifiable, the officer employee concerned shall be granted the full pay to which he would have been entitled to had he not been suspended together with any allowance of which he was in receipt immediately prior to his suspension, or may have been sanctioned subsequently and made applicable to all officer employees.
8. It is seen from the above Regulation 15(1) that the employee concerned shall be granted the full pay together with any allowance, when the competent authority holds that the said employee has been fully exonerated or that the suspension was unjustifiable. Thus, it is manifestly clear that there must be a finding rendered by the competent authority satisfying that the employee has been fully exonerated or that the suspension was unjustifiable.
9. Regulation 12 deals with suspension which reads as follows:-
(1) An officer employee may be placed under suspension by the competent authority:-
(a) where a disciplinary proceeding against him is contemplated or is pending or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
(2) An Officer employee shall be deemed to have been placed under suspension by an order of the competent authority:-
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty eight hours;
(b) with effect from the date of conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation: The period of forty eight hours referred to in clause (b) of this sub-regulation shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
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(5)(a) An order of suspension made or deemed to have been made under this regulation shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) An order of suspension made or deemed to have been made under this regulation, may at any time, be modified or revoked by the Authority which made or is deemed to have made the order.
10. As per Regulation 12(1)(a), an employee can be placed under suspension when a disciplinary proceeding against him is contemplated or pending. Likewise, where a criminal case against such employee is under investigation, an inquiry or trial, then also such employee can be placed under suspension under Regulation 12(1)(b). The deemed suspension is dealt with under clause (2) of Regulation 12, wherein it is contemplated that the employee shall be deemed to have been placed under suspension with effect from the date of his detention for a period exceeding forty eight hours. Clause 5(a) of Regulation 12 further contemplates that such an order of suspension made or deemed to have been made shall continue to remain in force until it is modified or revoked by the authority competent to do so. Regulation 3(f) defines the competent authority as the authority appointed by the Board for the purpose of the said Regulations.
11. A combined reading of Regulations 12 and 15 would thus show that a suspension order made or deemed to have been made under Regulation 12 shall continue to remain in force until it is modified or revoked by the competent authority and once the competent authority holds that the employee has been fully exonerated or that the suspension was unjustifiable, then such employee is entitled to get full pay to which he would have been entitled to, had he not been suspended.
12. Keeping these statutory position in mind, let me analyse the facts of the present case. The petitioner was arrested by the CBI in respect of a criminal case on 12.4.1996 and released on bail on 15.5.1996. Thereafter, the order of suspension came to be passed on 21.5.1996. The said order of suspension came to be passed in terms of Regulation 12(1)(b). Thus, the petitioner contends that in the absence of any further suspension order passed under Regulation 12(1)(a), the authorities are bound to pay salary for the suspended period by treating it as the one spent on duty in terms of Regulation 15(1).
13. A bare perusal of the said suspension order would show that the petitioner was placed under suspension only in terms of Regulation 12(1)(b) of the said Regulations and not under 12(1)(a) of the same. Thus, it is manifestly clear that on the date of passing of the suspension order, the authorities though entitled to proceed with the petitioner with the disciplinary proceedings, they have not chosen to do the same and suspended the petitioner by invoking Regulation 12(1)(a). On the other hand, they suspended the petitioner only by invoking Regulation 12(1)(b) since a criminal case was under investigation. It is needless to say that the department is not prevented from proceeding against the petitioner parallely. On the other hand, after the petitioner was dropped from the charge sheet, the department initiated disciplinary proceedings by issuing a charge memo on 25.6.1998. It is also to be noted that it is not necessary that in all cases of departmental proceedings the concerned employee has to be suspended. It is for such competent authority to decide as to whether such employee has to be suspended before initiating the disciplinary proceedings against him or not, by taking note of the gravity of the offence or allegation levelled against him. Thus, the respondents are not justified in contending that the suspension order passed under Regulation 12(1)(b) is also to be treated as the suspension under Regulation 12(1)(a). In my considered view, such contention of the authorities cannot be sustained since the very Regulation contemplates suspension under two circumstances viz., one under 12(1)(a) and another under 12(1)(b). It is for the competent authority to choose the relevant provision under which the suspension has to be made based on the facts and circumstances of each case. Thus, it is clear that no suspension order was passed against the petitioner in respect of the disciplinary proceeding is concerned. However, the fact remains that the petitioner was placed under suspension by invoking Regulation 12(1)(b).
14. Now let me consider the next issue as to whether the petitioner is entitled to get the said suspended period as the one spent on duty.
15. It is contended by the learned counsel for the respondents that the petitioner is estopped from claiming the above relief in this writ petition, as he had given an undertaking that he will not claim the benefit of back wages or salary for the suspended period, while he submitted an application for voluntary retirement.
16. It is not in dispute that the petitioner has given such undertaking as could be seen form his letter dated 29.5.2001. A perusal of the said letter would show that the petitioner has given such an undertaking and requested the bank to accept his VRS application and relieve him.
17. It is also not in dispute that the terms and conditions stipulated in the VRS order specifically prevented the petitioner from making any claim against the bank for re-employment or compensation or back wages etc., or for any other relief. Clause 9 of the said terms and conditions states that the petitioner has to submit a declaration that he has no other liability for which a claim may be preferred after his voluntary retirement. The above undertaking given by the petitioner as well as the terms and conditions of the Voluntary Retirement Scheme are put against the petitioner for rejecting his claim. Whether the respondents are entitled to raise such objection is the only question that needs to be answered now.
18. The petitioner contends that the undertaking given by him through his letter dated 29.5.2001 cannot be put against him as there is no estoppel for exercising his statutory right. In support of his submission he relied on the decision reported in
The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day to day transactions.
There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced would defeat the purpose of the Constitution.
19. Before considering the question of applying the principles of estoppel in this case, let me consider the factual aspect of the matter in this regard. Admittedly, the petitioner was imposed with the punishment of stoppage of increment of pay for a period of three years and also denial of back wages for the suspended period. The said order came to be passed on 3.7.2000 and an appeal filed against the said order came to be decided on 29.12.2000 only to an extent of modifying the penalty to the one of withholding one increment of pay. Insofar as the denial of wages for the suspended period is concerned, the appellate authority confirmed the finding of the original authority. A further review or appeal preferred by the petitioner on 10.9.2001 before the Chairman and Managing Director came to be rejected on 5.3.2002. In the mean time, the petitioner opted to go on voluntary Retirement under VRS 2000 and filed an application on 29.5.2001 wherein admittedly he has given an undertaking that he will not pursue the subject matter in any other manner in any court and will not claim suspension period wages nor agitate against the penalty imposed in any Court. The said application has been considered by the respondents and an order has been passed on 15.6.2001 accepting the request of the petitioner subject to certain terms and conditions out of which clause 4 and 9 of the conditions read as follows:-
4. Member will not have any claim against the Bank for reemployment or compensation or back wages including employment of any of the relative on compassionate grounds or for nay other benefits whatsoever.
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9. Member to submit a declaration that he/she has no other liability for which a claim may be preferred against the Bank after his/her Retirement.
20. Therefore, it is clear that after giving an undertaking as stated supra on 29.5.2001 and allowing an order of acceptance of his VRS application to be passed on 15.6.2001 based on such undertaking, the petitioner filed further appeal on 10.9.2001 before the Chairman and Managing Director and as a follow up action he has also filed this writ petition before this Court. Under this factual background, we have to see as to whether the petitioner is entitled to say that he is not estopped from agitating for his rights in spite of giving such undertaking and enjoying the benefit derived out of such undertaking. At this juncture, the conduct of the petitioner has to be seen carefully. After his appeal was disposed of by the first appellate authority on 29.12.2000 and when Voluntary Retirement Scheme 2000 was introduced in the meantime, the petitioner on his own volition went before the respondents and made his request for accepting his voluntary retirement. The letter dated 29.5.2001 of the petitioner requesting to accept his VRS application is extracted hereunder:
From
M. Truman
Roll No. 4914
Officer
Indian Overseas Bank
Royapuram Br.
Chennai.
To
The General Manager (P)
Indian Overseas Bank
Central Office
762 Anna Salai
Chennai 2.
Respected Sir,
Re: VRS - 2000 application
Further to my letter enclosing copy of dismissal order of Writ Petition No. 212 14/2000 by the Hon''ble High Court of Chennai. I also undertake that I will not pursue the subject matter of the petition in any other manner in any court and will not claim suspension period wages nor agitate against the penalty imposed in any Court.
I request you kindly accept my VRS application and relieve me.
Thanking You,
Yours faithfully,
(M. Truman)
21. It is to be noted that based on such undertaking only the voluntary retirement application of the petitioner was accepted by the respondents by passing an order on 15.6.2001. It is further to be noted at this juncture that the petitioner has not refused to enjoy the benefit of voluntary retirement and on the other hand he has accepted the order dated 15.6.2001 granting Voluntary Retirement with lumpsum payment as a package, subject to the terms and conditions stipulated therein and enjoyed the said benefit. Under such circumstances, I am of the view that the petitioner having opted to go on VRS on his own by making an application with an undertaking and having enjoyed the benefit of VRS by accepting the conditions stipulated therein, cannot turn around and say that he is entitled to agitate for his statutory rights and there is no estoppel. I am unable to appreciate the stand taken by the petitioner. The petitioner has not challenged the conditions stipulated in the VRS at any point of time.
22. First of all, a person after giving an undertaking and enjoying the benefit derived out of such undertaking is not entitled to say that he can act against such undertaking under the guise of establishing some statutory rights. In other words, it is to be construed that by enjoying the benefit derived out of such undertaking, he has given up his right, if any. Obviously, but for such undertaking he would have not been given the benefit of Voluntary Retirement Scheme. Therefore the petitioner cannot blow hot and cold at the same time. No doubt, there is no estoppel against the statute and the same is a settled principle with which there is no quarrel. But to apply the said principle, the facts and circumstances of each case coupled with the conduct of the person, who seeks to gain from the above principle, have to be seen carefully. Certainly a concession given by a person cannot be put against him to deny a benefit otherwise available to him under a statute so long as, such person, by his conduct, has not derived any benefit out of such concession and enjoyed it.
23. Yet another aspect which is to be noted at this juncture is that there is no automatic statutory benefit conferred on the petitioner for granting salary to the suspended period. As already stated supra, only when the competent authority holds under Regulation 15(1) that the petitioner has been fully exonerated or that the suspension was unjustifiable, he shall be granted the full pay to which he would have been entitled to had he not been suspended. Admittedly, no such order has ever been passed by the competent authority, though the petitioner made an application seeking for revocation or cancellation of the suspension and payment of salary for that period. On the other hand, the petitioner by his own subsequent conduct made an application for VRS by specifically giving an undertaking as stated supra. Thus, he has given up his right to seek revocation or cancellation of suspension as contemplated under Regulation 15(1). When the petitioner himself has given up such right by his own conduct, he cannot now say that he has a right to agitate for such right. It is not as though such right is automatically available under the statute. As pointed out earlier, such right accrues and gets crystalised only when the competent authority holds in favour of the petitioner under Regulation 15(1) as stated supra. Therefore, I am of the view that even though the suspension order was not made under Regulation 12(a), still as long as the same was not found by the competent authorities as unjustifiable as contemplated under Regulation 15(1), the petitioner is not entitled to get the suspension period treated as one spent on duty and claim salary for the same, even assuming that the petitioner is not estopped by his own conduct.
24. The petitioner relied on the decision of the Apex Court reported in
25. He further relied on the decision reported in
26. The learned counsel appearing for the respondent Bank relied on the decision made in
The Voluntary Retirement Scheme (VRS) which is some times called Voluntary Separation Scheme (VSS) is introduced by companies and industrial establishments in order to reduce the surplus staff and to bring in financial efficiency. The Office Memorandum dated 5.5.2000 issued by Government of India provided that for sick and unviable units, the VRS package of Department of Heavy Industry will be adopted. Under this Scheme an employee is entitled to an ex-gratia payment equivalent to 45 days emoluments (pay + D.A.) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is less. This is in addition to terminal benefits. The Government was conscious about the fact that the pay scales of some of the PSUs had not been revised with effect from 1.1.1992 and therefore it has provided adequate compensation in that regard in the second VRS which was announced for all Central Public Sector Undertakings on 6.11.2001. Clause (a) of the scheme reads as under:
a) Ex-gratia payment in respect of employees on pay scales at 1.1.87 and 1.1.92 levels, computed on their existing pay scales in accordance with the extant scheme, shall be increased by 100% and 50% respectively.
This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as ''Golden Handshake''. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated.
27. It is further observed by the Apex Court in the above decision that the contention of the employees opted for VRS that it was under compulsion is not worthy of acceptance. At paragraph No. 35 the Apex Court has dealt with the said issue as hereunder:-
The contention that the employees opted for VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However they, in their wisdom thought that in the fact situation VRS was a better option available and chose the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion.
28. In the decision reported in
