THE HONGKONG & SHANGHAI BANKING CORPORATION LTD. v. UOI & ORS.

1. The present application has been filed in the disposed writ petition. Vide the application, the applicant seeks direction thereby directing the petitioner to release excess amount in favour of the applicant as recorded vide Order dated 15.12.2006 & 03.07.2013.

2. Vide order dated 15.12.2006 passed in CM APPLN. 12492/2006 in W.P.(C) 12602/2006, the applicant herein claims to be a poor work-woman, however, record shows that she was drawing a salary of ₹59,000/- per month 2019:DHC:3644 approximately and she had also received more than ₹8,00,000/- after adjustment of loan ₹6,00,000/- at the time of her termination. She was offered a package of ₹57,00,000/- to which she refused to receive from the petitioner. It is further recorded that it is not a case of poor work woman, in any case, she is entitled to a sum of ₹25,000/- towards litigation expenses to be paid by way of Bank draft by the petitioner within one week.

3. Vide order dated 03.07.2013 passed in CM APPLN. 7730/2011 in W.P.(C) 11344/2009 it is recorded that during the pendency of the writ petition, respondent no.2 had moved CM No.7730/2011 for directing the petitioner bank to deposit a sum of ₹19,20,802.60 in this Court and then release the title documents of her property to the applicant lying deposited in this Court.

4. It is further recorded that the application was filed by respondent no.2, in view of the observations made by the Division Bench of this Court in W.P.(C) No. 19451/2006, when she was sought to be dispossessed by the petitioner bank from the property which she had mortgaged with the bank to secure the repayment of some housing loan taken, when she was in the employment of the bank, allegedly not repaid. Accordingly, that writ petition was disposed of by a consent order dated 18th March, 2010. The relevant portions of that order are as under:- "The imminent threat of repossession of the flat of the petitioner coupled with the deposit of the back wages by respondent no. 4 in this Court has resulted in an amicable settlement in so far as at least the present case is concerned with the assistance of learned counsel for the parties. It is, thus, agreed as under:- (a) As per the respondent no. 4-Bank, the outstanding as on date is ₹22,16,702.65p. The amount deposited as back wages in this Court is ₹25,19,095/-. Without prejudice to the rights and contentions of the parties, the amount of outstanding loan of ₹22,16,702.65p would be satisfied by the release of the said amount from the amount deposited by respondent no.4-Bank in this Court towards back wages without any further demand for back wages on that account. (b) As a consequence of the said amount being directed to be released by the Registry in favour of respondent no. 4- Bank, the Bank would deposit the original title documents relating to the flat of the petitioner in this Court to be kept in a sealed cover with the Joint Registrar of this Court. The question of releasing the title deeds to the petitioner would be dependent on the directions to be passed in W.P. (C) No. 11344/2009.”

5. It is further recorded that the ultimate relief and liabilities of the parties are to be determined in the proceedings challenging the award of the Labour Tribunal, whereafter, the obligations would be crystallized. It would thus be open to the parties to plead before that Court as to how the final adjudication for the amounts made as per directions of this Court. The aforesaid adjustment would result in the satisfaction of the loan of the petitioner subject to the condition that there is no financial liability on the petitioner arising from the decision in the proceedings challenging the award of the Labour Tribunal, after making the said adjustment. It is thus subject to final outcome of W.P.(C) No. 11344/2009.

6. It is pertinent to mention here that W.P.(C) 11344/2009 was dismissed vide order of this Court, dated 12.04.2017, by recording as under:- “15. I may note that during the course of hearing, and after hearing the submissions of the petitioner as regards the two aspects which have been decided in favour of the petitioner, a suggestion was floated for the respondent no.2 to receive the amounts already received by her from the petitioner not only for the retrenchment but also additional amounts given to respondent no.2 by the petitioner on account of respondent no.2 succeeding before the CGITLC, yet respondent no.2 was not interested in compromise by receiving the amount already received by her in full and final satisfaction. It bears note that it is not as if the respondent no.2 was being paid only an amount around Rs.[9] lacs, inasmuch as the respondent no.2 has till date received a very very huge amount of ₹l,07,73,736 from the petitioner, and which is around 13/14 times the legal entitlement of the respondent no.2, yet for some reason the respondent no.2 refuses to budge and accept this gargantuan amount in full and final settlement of the compensation entitlement. The details with respect to amount of ₹1,07,73,736/-are as under: "1. Towards notice period 1,77,684

2. Severance Pay 6,39,387/-

3. Gratuity 3,81,209/- 4- Paid Towards back wages 8,00,000/pursuant to execution

5. Paid towards interim Award 33,19,096/-

6. Paid in compliance of Section 54,56,360/- 17-B Total 1,07,73,736/-“

16. In view of the aforesaid discussion, the impugned Awards dated 1.6.2009 and 15.7.2015 are set aside. It is also held that respondent no.2 had abandoned her services with the petitioner and hence there was no illegal termination of her services by the petitioner. Even assuming for the sake of arguments that respondent no.2 was a workman whose services had to be retrenched only on compliance of the requirements of Section 25F, in such a case, the petitioner is found to have complied with the legal requirements, inasmuch as the monetary package paid to the respondent no.2 by the petitioner is such that it is in fact more than the total amounts which are payable to the respondent no.2 under sub-sections (a) and (b) of Section 25F of the Act. Writ petition is accordingly allowed and disposed of Since the respondent no.2 has received the amounts from t^^ petitioner much beyond her legal entitlement, all such amounts which are received by the respondent no.2 from the petitioner in excess of ₹8,17,071/- are bound to be restituted by the respondent no.2 to the petitioner and petitioner can take necessary proceedings for restitution in accordance with law.”

7. Being aggrieved, the applicant challenged the same vide LPA No.467/2017 and the same was disposed of vide the judgment of the Division Bench of this Court dated 14.07.2017 and the relevant portions of the same are recorded as under:-

21. In respect of the first finding returned by the learned Single Judge, the appellant has not pointed out any error in the impugned judgment. The correspondence exchanged between the parties in relation to the alternate jobs offered to the appellant, which have been extensively set out in the impugned judgment itself, show that the appellant was being unreasonably picky. Not only were her pay and allowances protected by the respondent while offering her alternate jobs, the jobs did not require any special skill which she did not possess. It could not be said that the jobs offered to her, namely, of Business Development Officer, Customer Service Officer, Clearing Officer, and Banking Service Officer, were the jobs/ posts having lower status than the one she was performing viz. of “Senior Confidential Secretary”. They had the same status, if not higher, than that occupied by the appellant at the time of her retrenchment. The appellant has not been able to point out, as to how she could not have performed either of the said four jobs offered to her. Thus, it appears to us that the appellant was actually not interested in continuing with her services, and she resorted to nit-picking only as an excuse to not re-join her services with the respondent bank.

22. We are of the view that the learned Single Judge has correctly enumerated the possible justifications, that the appellant could have had for rejecting the said four offers made to her and none of the said justifications existed in the present case. We are, thus, of the view that the learned Single Judge has rightly concluded that the appellant had abandoned her job and she could not have been said to be in “continuous service” in terms of Section 25B at the time of her retrenchment. It was essential for the appellant to be in “continuous service” at the time of her termination to invoke Section 25F of the Act.

23. The appellant has also not advanced any submission before us to assail the second finding returned by the learned Single Judge, namely that she had been adequately compensated at the time of her termination/ retrenchment on 01.10.2005. She has not even contended, that she had not LPA 467/2017 received the amount of Rs.8,17,071/- at the time of her termination, or that she was entitled to a larger amount under Section 25F at the time of her termination/ retrenchment on 01.10.2005. She has not even ventured to place any facts or figures before us, to dispute the findings returned by the learned Single Judge on the second issue taken note of hereinabove.