Devendra Kumar Dhawan vs State Of U.P. And 3 Others
2018 Latest Caselaw 3234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Court No. - 39
 

 
Case :- WRIT - A No. - 10927 of 2017
 

 
Petitioner :- Devendra Kumar Dhawan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shailesh Pandey,Abhinav Ojha,Rakesh Chandra Pathak
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

Heard learned counsel for the petitioner and the learned standing counsel for the State respondent.

The petitioner in the writ petition is seeking quashing of the order dated 14.12.2016 passed by the Chief Operating Officer, Sahibabad District Ghaziabad-respondent no. 3, where by he has been voluntarily retired from service.

Briefly stated the facts of the case are that the petitioner was initially appointed as Commercial Trainee on vide order dated 2.1.1988 in Uptron Powertronics Ltd. (hereinafter referred to as the UPL) and he has joined his post on 4.1.1988 on a probation of 12 months. After successfully completion of training period the Management appointed the petitioner as Junior Assistant (Commercial) by order dated 25.3.1989. The UPL launched a voluntary Retirement Scheme dated 25.6.2002, copy of which has been filed as Annexure-5 to the writ petition, which provided that it was applicable to an employee of the Company who had completed 10 years of service or 40 years of age, if he has not availed the benefit of any other voluntary retirement scheme in the past.

Paragraph 5 of the Scheme, 2002 inter-alia provides that the Management reserves the right not to grant Voluntary Retirement and it also provides that once an application is made under this scheme by an employee, he/she will not be allowed to withdraw the same. The petitioner applied under the said scheme. It is further stated that another scheme of Voluntary Retirement was introduced by the respondents known as Voluntary Retirement Scheme 2016 vide Circular dated 22.9.2016, Annexure-7 to the writ petition. Paragraph 37 of the Scheme 2016 provided that those employees/officers who had previously applied for voluntary retirement against the previous Voluntary Retirement Scheme need not apply again and that the Management reserved the right to accept the application submitted under the previous Scheme.

On 6.10.2016, Annexure-8 to the writ petition, the petitioner submitted a letter to the Managing Director, UPL stating that he may also have been one of the applicants of the Voluntary Retirement Scheme, 2002 and if that is so, during the period from 2002 till 2016 he has not been communicated by the competent authority of the Company whether his application has been accepted or rejected. He also submitted that since 2002 to 2016 the petitioner earned several promotions right from the Junior Accounts Assistant to the rank of Accounts Officer.

It is therefore submitted that this fact alone indicates that the Management had rejected his previous application for voluntary retirement and that having accepted promotion from the post of Junior Officer to Manager (F & A) his previous application seeking voluntary retirement had become stale and lost its purpose. Vide the letter dated 6.10.2016 the petitioner again submitted that he was withdrawing the previous voluntary retirement application and that his request for withdrawal of the previous voluntary retirement application may be accepted.

What we note from the pleadings and documents on record is that in paragraph 11 of the writ petition it has been stated that the petitioner had applied for voluntary retirement in the year 2002 on which no order was passed till introduction of the second Voluntary Retirement Scheme in 2016. In the meantime, as stated by the petitioner he has also been given various promotions, as quoted above.

The submission of the learned counsel for the petitioner is that even if the petitioner had applied under the previous Voluntary Retirement Scheme which carried a stipulation that if the employee had once submitted the application he cannot withdraw the same but in the meantime in the intervening 14 years till the coming of the second voluntary retirement Scheme 2016 the petitioner had been given promotion right from the Junior Accounts Assistant to the rank of Accounts Officer.

The contention therefore is that once he had been given several promotions till 2012 his previous application for voluntary retirement had lost its essence and effect completely particularly when the Management had not acted upon it promptly and had allowed the petitioner promotions. The petitioner's contention further is that he has not submitted any application under the Voluntary Retirement Scheme of 2016 and, therefore, there was nothing before the Management to accept.

No counter affidavit has been filed by the Management nor has any counsel appeared to even advance oral submissions, instead an illness slip has been sent by Shri Shyam Murari Upadhya, counsel for the respondents. The case is marked peremptory in the cause list. Therefore we have proceeded to hear the matter finally.

From the pleadings of the parties and the documents on record we find that even if the petitioner had submitted an application seeking voluntary retirement under the Voluntary Retirement Scheme of 2002, but thereafter he has been promoted on several posts till the year 2012 and he continued to work as such till the passing of the impugned order on 21.10.2016. The Scheme of Voluntary Retirement 2002 clearly mentions in paragraph 3 that the competent authority may accept/reject the application of an employee for voluntary retirement keeping in view the organizational requirement or any administrative reason and the decision of the Managing Director shall be final. No voluntary retirement shall be deemed to come into effect unless the decision of the competent authority is communicated in writing. Paragraph 3 of the Scheme reads as under:

"3. COMPETENT AUTHORITY

The Competent Authority for grant of Voluntary Retirement under this scheme shall be Managing Director or a person authorized by him in writing who shall not be below the rank of Joint Manager.

The Competent Authority may accept/reject the application of an employee for Voluntary Retirement keeping in view of the organizational requirement or any administrative reason and the decision of the Managing Director shall be final. No Voluntary Retirement shall be deemed to come into effect unless the decision of the Competent Authority has been communicated in writing."

Paragraph 5(a) of the Scheme. 2002 provides that the Management reserves the right not to grant voluntary retirement. Paragraph 5(b) states that once an application is made under this Scheme by an employee he/she will not be allowed to withdraw the same. There are other paragraphs upto paragraph (f) which, however, are not relevant for decision of the present case but reading of paragraphs 5(a) and 5(b) show that mere filing of an application seeking voluntary retirement does not result in the employee submitting the application being granted voluntary retirement and the right to grant voluntary retirement is reserved to the Management which may also not grant voluntary retirement and may reject the application instead. Paragraphs 5(a) and 5(b) read as under:

"5. OTHER TERMS AND CONDITIONS:

(a) The Management reserves the right not to grant Voluntary Retirement.

(b) Once an application is made under this scheme by an employee, he/she will not be allowed to withdraw the same.

(c) .........................

(d) .........................

(f) ........................."

Though paragraph 5(b) states that once an application is made under the Scheme, 2002, the employee will not be allowed to withdraw the same but that does not result in an automatic acceptance of voluntary retirement unless it is accepted by the Management in exercise of powers under paragraph 5(a) who may choose not to grant voluntary retirement in exercise of powers under paragraph 5(a).

In the present case, the petitioner moved an application seeking voluntary retirement under the Scheme 2002 but thereafter no order was passed till 14.12.2016 when the impugned order was passed and in the meantime the petitioner was also granted promotions and pay scales. In between the Voluntary Retirement Scheme, 2016 came into force on 22.9.2016 but till that date no order had been passed by the Management accepting the petitioner's application under the Scheme of 2002. The new Scheme provided that employees/officers who sought voluntary retirement and submitted their applications by 7.10.2016 any application submitted thereafter, would not be considered at all. Paragraph 3 of the Scheme, 2016 provided that those employees/officers who had submitted their application under the previous Scheme would not be required to submit any further application under the new Scheme of Voluntary Retirement and that the Management reserved the right to accept the application given under the previous Scheme of 2002.

In our opinion, since the petitioner had submitted his application under the previous Scheme of 2002 to the Company and in the meantime he had been granted promotional posts/pay scales by the Management upto the year 2012 and continued as such till the date of passing of the impugned order it would be assumed that the Management needed the services of the petitioner and that therefore no order was passed on the petitioner's application at the time when the application was submitted. It may also be noted that the petitioner had submitted an application on 6.10.2016 withdrawing his previous application and no order has been passed by the Management on that application of the petitioner and instead the impugned order was passed.

The Voluntary Retirement Scheme of 2016 does not provide anywhere that the Scheme of 2002 would remain alive after launching of the Scheme of Voluntary Retirement Scheme of 2016. No doubt it contains a stipulation that those who had applied under the previous Scheme need not apply under the Scheme of 2016 but in our opinion by the launching of the Scheme of 2016, the previous Scheme of 2002 stood replaced. The provisions made in paragraph 3 of the Scheme 2016 that the Management reserved the right to accept the application given under the previous Scheme was an enabling protection for those who had submitted their application immediately coming to an end of Scheme 2002 on 22.9.2016 and in whose cases no orders had been passed. In our opinion the respondents could not have acted upon the Scheme of 2002 which had outlived its utility and lapsed with the launching of the new Scheme 2016. Even otherwise the Management had granted several promotions to the petitioner upto the year 2012 and the petitioner has continued in service till October, 2016, therefore he had a ligitimate expectation of being continued in service. It also cannot be said that there was no need of the services of the petitioner.

There is another aspect of the matter. Under paragraph 5(a) of the Scheme the Management reserves the right not to grant voluntary retirement. This itself demonstrates that acceptance of an application seeking voluntary retirement is not ipso facto a consequence of submission of such an application and the Management may in its discretion not accept the voluntary retirement. The petitioner on 7.10.2016 had through his application requested that he was withdrawing his application seeking voluntary retirement. Even if, the scheme had provided that an application once submitted cannot be withdrawn bu the corollary that it must, therefore, be accepted also does not hold true. Besides on the launching of the new Scheme 2016 the condition that the employee cannot withdraw his application once submitted under the Scheme of 2002 also lapsed with the lapsing of the Scheme of 2002. In paragraph 5(b) of the Scheme of 2002 the emphasis is on the word "this Scheme". There is no such provision in the Scheme of 2016 that the application seeking voluntary retirement cannot be withdrawn.

The petitioner has further relied upon a decision of a Division Bench of the Lucknow Bench of this Court passed on 7.5.2010 in W.P. No. 1754 (S/B) of 2009 (Praveen Kumar V. State of U.P. and others) relating to Uptron Digital System Ltd. which is a subsidiary of the UPCL wherein on similar facts, the writ petition was allowed and the impugned orders were quashed and it was directed that the petitioner would be entitled to be continued in service with all consequential benefits. Copy of the said judgement has been filed as Annexure-9 to the writ petition.

Therefore, for reasons aforesaid, in our view the impugned order dated 21.10.2016 is absolutely illegal and arbitrary and is accordingly set aside. The writ petition stands allowed.

The petitioner shall be treated to be in service with all consequential benefits which shall be granted to the petitioner by the respondents no. 2,3 and 4 within a period of four months from the date of receipt of the certified copy of this order.

Order Dated: 12th October, 2018.

o.k.